ASHA SRICHAND RAHEJA, MUMBAI V. ITO 16(1)(1), MUMBAI

ITA 1134/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3306 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 11-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 08-02-2013
• Court: TRIBUNAL
• Assessee Lawyers: APURVA R SHAH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAM LAL NEGI , JM ./ ITA NO. 1132 / MUM/20 1 3 ( / ASSESSMENT YEAR : 200 9 - 2010 ) LAXMI S RICHAND RAHEJA, 4 TH FLOOR, HARI BHAVAN, 64, PEDDAR ROAD, MUMBAI - 400026 VS. ITO - 16(1)(1), MUMBAI - 400007 ./ ./ PAN/GIR NO. : A A BPR 7656 Q ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ ITA NO. 1134/ MUM/20 13 ( / ASSESSMENT YEAR :2009 - 2010 ) ASHA SRICHAND RAHEJA, 4 TH FLOOR, HARI BHAVAN, 64, PEDDAR ROAD, MUMBAI - 400026 VS. ITO - 16(1)(1), MUMBAI - 400007 ./ ./ PAN/GIR NO. : A ABPR 765 5 P ( / APPELLANT ) .. ( / RESPONDEN T ) /AS SESSEE BY : APURVA R. SHAH /REVENUE BY : SHRI MAURYA PRATAP / DATE OF HEARING : 01 /0 6 /2016 / DATE OF PRONOUNCEMENT 01/06 /201 6 / O R D E R PER R.C.SHARMA (A.M) : TH ESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), MUMBAI, FOR THE ASSESSMENT YEAR 2009 - 2010 , IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE I.T.ACT. ITA NO. 1132&1134/13 2 2. COMMON ISSUE IN BOTH THE APPEALS RELATES TO ADDITION MADE U/S.41(1) , BEING C ESSATION OF LIABILITY. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FROM THE RECORD WE FOUND THAT DURING THE COURSE OF ASSESSMENT THE AO OBSERVED THAT ASSESSEE HAD SHOWN A SUM OF RS. 55,00,000/ - UNDER HEAD SUNDRY CREDITORS IN THE BALANCE SHEET IN THE CASE OF ASSESSEE - LAXMI SRICHAND RAHEJA (ITA NO.1132/MUM/2013) BY OBSERVING THAT THE LIABILITY WAS EXISTING SINCE LONG BACK. THE AO INVOKED PROVISIONS OF SECTION 41(1) AND ADDED THE SAME IN ASSESSEES INCOME. 4. BY THE IMPUGNED ORDER THE CIT(A) CONF IRMED THE ACTION OF AO, AGAINST WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. LD. AR PLACED BEFORE US ORDER U/S.37 OF THE CODE OF CIVIL PROCEDURE, FILED BEFORE THE HONBLE BOMBAY HIGH COURT, WHEREIN CREDITORS HAVE CONFIRMED THE PAYMENT OF AMOUNT OF RS .30 LAKHS BY PAY ORDER NO. 706497, DATED 5 TH FEB.2013 AND RS.25 LAKHS BY PAY ORDER NO. 706498, DATED 5 TH FEB.2013. AS THE CREDITORS HAVE ALREADY GOT THE PAYMENT, THERE IS NO CESSATION OF LIABILITY. IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THE MAT TER BACK TO THE FILE OF AO FOR VERIFYING ACTUAL PAYMENT BEING MADE BY THE ASSESSEE. IF THE AO FINDS THAT THE ASSESSEE HAS MADE ACTUAL PAYMENT, NO ADDITION IS WARRANTED U/S.41(1). WE DIRECT ACCORDINGLY. 6. FACTS AND CIRCUMSTANCES IN ITA NO.1134/MUM/2013 ARE SAME, WHEREIN ASSESSEE HAS MADE PAYMENT BY PAY ORDER NO.706497, DATED 5 TH FEB.2013 AND ORDER U/S.37 OF CPC, 1908 WAS PLACED ON RECORD. FOLLOWING THE SAME REASONING, WE RESTORE THE ISSUE BACK TO THE FILE OF AO FOR ITA NO. 1132&1134/13 3 VERIFYING THE FACT OF ACTUAL PAYMENT AND TO DECIDE AFRESH. WE DIRECT ACCORDINGLY. 7. IN CASE OF ASHA SRICHAND RAHEJA (ITA NO.1134/MUM/2013) , A GROUND WAS ALSO TAKEN WITH REGARD TO ADDITION MADE BY COMPUTING ALV AT 6% OF THE PROPERTY VALUE. WE DO NOT FIND ANY MERIT IN THE AOS ACTION AND THE MAT TER IS RESTORED BACK TO THE FILE OF AO FOR COMPUTING ALV AS PER THE GUIDELINES LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF T IP TOP TYPOGRAPHY, 368 ITR 330. WE DIRECT ACCORDINGLY. 8 . IN THE RESULT, BOTH APPEALS OF ASSESSEE ARE ALLOWED IN TERMS INDICATED HEREINABOVE. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 01/06 / 201 6 . SD/ - ( RAM LAL NEGI ) SD/ - ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 01/06 /201 6 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE R ESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//