SHREE KHIDKALESHWAR LAND DEVELOPERS, MUMBAI V. DCIT CC 36, MUMBAI

ITA 154/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1942 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 03-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-01-2012
• Court: TRIBUNAL
• Department Lawyers: SUJIT BANGER
• Assessee Lawyers: VIPUL B JOSHI
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI . . , ! , ' , # BEFORE S/SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND AMARJIT SINGH, JUDICIAL MEMBER / I .T.A. NO.154/MUM/2012 ( ' $ %$ / ASSESSMENT YEAR: 2008-09) M/S. SHREE KHIDKALESHWAR LAND DEVELOPERS 205, COMMERCE HOUSE, 140,N.M.ROAD, FORT, MUMBAI 400021 / VS. THE DCIT CC 36 OFFICE OF THE DCIT CC36, GROUND FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI 400020 ./ ./ PAN/GIR NO. : AACFS4380B ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY: SHRI VIPUL B. J OSHI DEPARTMENT BY: SHRI SUJIT BANGER !'# $% &' / DATE OF HEARING: 26.08.2015 ()*+ $% &' /DATE OF PRONOUNCEMENT:18.12.2015 ,- / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL IN VIEW O F THE PROVISION U/S 250 OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) AG AINST THE ORDER DATED 07.12.2011 PASSED BY THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS)-41, MUMBAI [HEREINAFTER REFERRED TO AS THE LEARNED CIT (A)] RELEVANT TO THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE IS A FIRM, ENGAGED IN THE BUSINESS OF REAL ESTATE, CONSTRUCTION, DEVELOPMENT ETC. THE ASSESSEE FIRM H AS DECLARED HIS INCOME UNDER THE HEAD INCOME FROM BUSINESS INCLUDING INT EREST RECEIVED FROM OTHERS AND PARTNERS. THE ASSESSING OFFICER HAS DECLINED TH E EXPENDITURE TO THE TUNE OF ITA NO.154/MUM/2012 ASSESSMENT YEAR: 2008-09 2 RS.21,94,825/- ON ACCOUNT OF MSEF & CONNECTION CHAR GES TO THE TUNE OF RS.3,99,950/-, LABOUR CHARGES TO THE TUNE OF RS.2,7 2,708/-, ELECTRICAL MATERIAL AND WORK TO THE TUNE OF RS.4,87,132/- AND SAND, MET AL AND BROCKS ETC. TO THE TUNE OF RS.10,35,035/-. THE ASSESSING OFFICER ALSO DECLINED THE EXPENDITURE OF THE AMOUNT OF RS.16,06,041/- ON ACCOUNT OF MAINTENA NCE CHARGES FOR VACANT FLATS WITHOUT ANY PROOF AND SUPPORTING DOCUMENTS. AFTER PASSING THE ASSESSMENT ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT( A) WHO ALSO DISMISSED THE APPEAL OF THE ASSESSEE, THEREFORE FEELING AGGRIEVE D, THE PRESENT APPEAL HAS BEEN FILED. 3. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND HAVE GONE THROUGH THE RECORD CAREFU LLY. THE LEARNED REPRESENTATIVE OF THE ASSESSEE TOOK THE PLEA THAT H E HAD MOVED AN APPLICATION TO SUBSTANTIATE THE EXPENDITURE TO THE TUNE OF RS.21,9 4,825/- AND TO THE TUNE OF RS.16,06,041/- U/S. 46A OF THE INCOME TAX RULES 196 2 BUT THE LEARNED CIT(A) HAS WRONGLY DECLINED THE APPLICATION, THEREFORE, TH E ASSESSEE SHOULD BE ALLOWED TO ADDUCE THE ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES 1962 IN THE INTEREST OF JUSTICE. CONTRARY TO IT, L EARNED DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE ORDER OF LEAR NED CIT(A). 4. UNDOUBTEDLY, THE ASSESSING OFFICER DISALLOWED TH E EXPENDITURE TO THE TUNE OF RS.21,94,825/- ON ACCOUNT OF EXPENDITURE IN THE P&L ACCOUNT RELATED TO RIVER WOOD PARK, PHASE-I AND ALSO DECLINED THE EXPE NDITURE TO THE TUNE OF RS.16,06,041 ON MAINTENANCE CHARGES FOR VACANT FLAT S ON ACCOUNT OF NO FURNISHING THE PROPER DOCUMENTS, EVIDENCE ETC. THE ASSESSEE FILED THE APPEAL BEFORE THE LEARNED CIT(A) AND ALSO MOVE AN APPLICAT ION UNDER RULE 46A(1) OF THE INCOME TAX RULES 1962. THE LEARNED CIT(A) CAL LED THE DETAILED REPORT FROM THE ASSESSING OFFICER WITH REGARD TO THE FILIN G AN EVIDENCE OR SUPPORTING DOCUMENTS CLAIMED BY THE ASSESSEE. THE ASSESSING O FFICER REPORTED THAT NO CLAIM OF ANY KIND WAS FILED BEFORE HIM. IN VIEW OF THE REPORT OF ASSESSING ITA NO.154/MUM/2012 ASSESSMENT YEAR: 2008-09 3 OFFICER, THE LEARNED CIT(A) DISMISSED THE APPLICATI ON AND ALSO DISMISSED THE APPEAL. ONLY GROUND WHICH HAS BEEN DESCRIBED BY TH E LEARNED CIT(A) IS THAT THE ASSESSEE HAS NOT RAISED ANY CLAIM BEFORE THE AS SESSING OFFICER, THEREFORE, MENTIONED THE WRONG FACTS, HENCE, THE APPLICATION U NDER RULE 46A(1) OF THE INCOME TAX RULES 1962 WAS NOT REQUIRED TO BE ALLOWE D. NO DOUBT, PROVISION UNDER RULE 46A(1) SPEAKS THAT FIRSTLY EVIDENCE SHOU LD BE PRODUCED BEFORE ASSESSING OFFICER BUT THE SAID RULES DESCRIBES THE WIDE CIRCUMSTANCES VIDE WITH THE CLAIM OF THE ASSESSEE CAN BE CONSIDERED BY WAY OF ADDUCING ADDITIONAL EVIDENCE, EVEN, AT THE TIME OF APPEAL BEFORE LEARNE D CIT(A) AS WELL AS TRIBUNAL. RULE 46A(1) IS HEREBY REPRODUCED AS UNDER: (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY B E, THE COMMISSIONER (APPEALS), ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE ASSESSING OFFICER, EXCEPT IN THE FOLLOWING CIRCUMSTANCES, NAMELY:-- (A) WHERE THE ASSESSING OFFICER HAS REFUSED TO ADMI T EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED; OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE ASSESSING OFFICER; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL; OR (D) WHERE THE ASSESSING OFFICER HAS MADE THE ORDER APPEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO TH E APPELLANT TO ADDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. 5. ANYHOW, THE ASSESSEE WANTED TO ADDUCE THE EVIDEN CE IN SUPPORT OF HIS CLAIM, THEREFORE, IN THE SAID CIRCUMSTANCE AND IN T HE INTEREST OF JUSTICE WE ARE OF THE VIEW THAT AN OPPORTUNITY TO ADDUCE THE ADDITION AL EVIDENCE SHOULD BE GIVEN TO THE ASSESSEE TO REPRESENT THE MATTER BEFORE THE ASSESSING OFFICER IN ACCORDANCE WITH LAW SPECIFICALLY TO CERTIFY THE CLA IM OF THE ASSESSEE. THEREFORE, IN THE SAID CIRCUMSTANCES WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) DATED 07.12.2011 UNDER CHALLENGE AND RESTORED THE SAME T O HIS FILE WITH THE DIRECTION ITA NO.154/MUM/2012 ASSESSMENT YEAR: 2008-09 4 TO CONSIDER THE CLAIM OF THE ASSESSEE AFRESH BY DUL Y CONSIDERING THE ADDITIONAL EVIDENCES AND ALSO AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD. 6. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS HEREB Y TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2015 SD/- SD/- (B.R.BASKARAN) (AMARJIT SINGH) , / ACCOUNTANT MEMBER ./$ , /JUDICIAL MEMBER 0 1# MUMBAI; 2,!$ DATED : 18 TH DECEMBER, 2015 MP MP MP MP & ' (' ) *)% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ 3& ( ) / THE CIT(A)- 4. $ 3& / CIT 5. 4'56 /&/!78 , $ ' 78$+ , 0 1# / DR, ITAT, MUMBAI 6. 69: ;# / GUARD FILE. & / BY ORDER, 4& /& //TRUE COPY// + / ! (DY./ASSTT. REGISTRAR) , 0 1# / ITAT, MUMBAI