AMOL CAPITAL MARKETS P.LTD, MUMBAI V. DCIT 4(1)(1), MUMBAI

ITA 1301/MUM/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 6007 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 23-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Keywords: Opportunity of being heard
• Section: 40(a)(ia); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 13 0 1 /MUM/201 7 ASSESSMENT YEAR : 20 10 - 11 M/S. AMOL CAPITAL MARKETS P LTD., 106, MOTABAI WADIA BLDG, 1 ST FLOOR, 22D, SA BRELVI ROAD, FORT, MUMBAI [PAN : AA DCS 8022 N ] VS. DC IT - 4 (1) (1) , MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI SATISH CHANDRA RAJORE , DR DATE OF HEARING : 11 - 1 2 - 2018 DATE OF PRONOUNCEMENT : 31 - 12 - 2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) - 9 , MUMBAI , DATED 29 - 11 - 201 6 . THE GROUNDS RAISED BY ASSESSEE ARE AS UNDER: ITA NO. 1301 /MUM/ 20 17 : 2 : 1. THE LEARNED CIT(A) ERRED IN FACTS AND CIRCUMSTANCES AND IN LAW IN HOLDING THE ACTION OF AO OF RESORTING TO RE - OPENING OF ASSESSMENT, TO BE IN ORDER WITHOUT PREJUDICE TO THE ABOVE. 2. THE LEARNED CIT(A) ERRED IN FACTS AND CIRCUMSTANCES AND IN LAW IN CONFIRMING ADDITION THAT THE AO MADE U/S. 40(A)(IA). REASONS GIVEN BY LEARNED CIT(A) IN CONFIRMING THE ACTION OF AO ARE WRONG, INSUFFICIENT AND CONTRARY TO FACTS AND EVIDENCE ON RECORD AND IN LAW. 2. AT THE OUTSET, WE WOULD LIKE TO STATE THAT NEITHER THE ASSESSEE NOR THE AR APPEARED BEFORE US TO ATTEND THE HEARING NOR ANY APPLICATION FOR ADJOURNMENT WAS FILED. WE , THEREFORE , ARE PROCEEDING TO DISPOSE THE APPEAL IN THE ABSENCE OF ASSESSEE, AFTER HEARING LD. DR AND AFTER CONSIDERING T HE MERITS OF THE CASE. 3. THE ONLY ISSUE INVOLVED IN THE PRESENT CASE IS AGAINST THE REOPENING OF THE AS SESSMENT . BESIDE , WITHOUT PREJUDICE , GROUND WAS ALSO TAKEN BY THE ASSESSEE, CHALLENGING THE CONFIRMATION OF ADDITION MADE BY THE ASSESSING OFFICER ( AO ) U/S. 40(A)(IA) OF THE INCOME TAX ACT (ACT). AFTER HEARING LD. DR AND CONSIDERING THE MERITS OF THE CASE, WE ARE OF THE VIEW THAT THE ISSUE INVOLVED IN THE PRESENT CASE NEEDS TO BE LOOKED INTO AT THE LEVEL OF AO IN ORDER TO ASCERTAIN WHETHER THE PAYEES TO WHOM THE PAYMENT S WERE MADE BY THE ASSESSEE HAVE BEEN ITA NO. 1301 /MUM/ 20 17 : 3 : ASSESSED TO TAX AND WHETHER THE PAYMENTS BY THE ASSESSEE HAVE DULY BEEN SHOWN IN THE RETURN OF INCOME BY THE PAYEES. IF SO, THE ISSUE FALLS WITHIN THE AMBIT OF SECOND PROVISO TO SECTION 40(A)(IA) OF T HE ACT AND DEDUCTION NEEDS TO BE ALLOWED TO ASSESSEE. WE THEREFORE RESTORE THE ISSUE BACK TO THE FILE OF AO , WITH A DIRECTION TO DECIDE THE SAME IN THE LIGHT OF THE ABOVE OBSERVATION S , AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DAY OF DECEMBER, 2018 SD/ - SD/ - (MAHAVIR SINGH) (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI; / DATED : 31 ST DECEMBER, 2018 TNMM ITA NO. 1301 /MUM/ 20 17 : 4 : / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) , MUMBAI 4. / CIT, MUMBAI 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE / BY ORDER, //TRUE COPY// / (DY./ASST. REGISTRAR) , / ITAT, MUMBAI