SVP ENTERPRISES, MUMBAI V. DCIT (OSD-I) CEN RG 7, MUMBAI

ITA 1554/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100903 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 25-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UDAY B JAKLE
• Keywords: Opportunity of being heard; Corroborative evidences
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER AND RAM L AL NEGI, JUDICIAL MEMBER / I .T.A. NO S . 1554 & 1535/MUM/2013 ( / ASSESSMENT YEAR S : 2008 - 09 & 2009 - 10 M/S. SVP ENTERPRISES, C/O PRAKASH B.KANSODARIYA, 1001, TULSI TOWER, TPS ROAD, BORIVALI (W), / VS. THE DCIT(OSD - 1), CENTRAL RANGE - 7, MUMBAI ./ ./ PAN/GIR NO. : ABBFS 4425P ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI SATISH R. MODY / RESPONDENT BY: SHRI UDAY B. JAKLE / DATE OF HEARING : 0 7 .0 9 .2015 / DATE OF PRONOUNCEMENT : 0 7 .0 9 .2015 / O R D E R PER N.K. BILLAIYA, AM: TH ESE APPEAL S BY THE ASSESSEE ARE PREFERRED AGAINST THE TWO SEPARATE ORDER S OF THE LD. CIT(A) - 40 , MUMBAI D ATED 28.12.2012 PERTAINING TO ASSESSMENT YEAR S 2008 - 09 & 2009 - 10 . BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NO. 1554/ M /2013 A.Y. 2008 - 09 ITA. NO. 1554 & 1535 /M/2013 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ASSESSMENT ORDER MADE BY THE AO U/S. 144 OF THE ACT. 3. THE ASSESSEE IS IN THE BUSINESS OF MANUFACTURING OF DIAMONDS. RETURN FOR THE YEAR WAS FILED ON 30.9.2008 DECLARING TOTAL IN COME AT RS. 11,97,760/ - . THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT AND ACCORDINGLY STATUTORY NOTICES ALONGWITH QUESTIONNAIRE WERE SERVED UPON THE ASSESSEE. WHILE SCRUTINIZING THE RETURN OF INCOME, THE ASSESSING OFFICER DID NOT ACCEPT THE AUDITED BO OKS OF ACCOUNTS AND COMPLETED THE ASSESSMENT U/S. 144 OF THE ACT. 4. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AND CHALLENGED THE ADDITION OF RS. 6,83,591/ - . AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS MADE BY THE ASSE SSEE, THE LD. CIT(A) OBSERVED THAT IN THE ABSENCE OF PROPER BOOKS OF ACCOUNT AND SUPPORTING EVIDENCES, THE ESTIMATION MADE BY THE AO IS JUSTIFIED AND THE SAME IS UPHELD. 5. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. 6. THE LD. COUNSEL FOR THE ASSES SEE STATED THAT BECAUSE OF SOME REASON, THE ASSESSMENT PROCEEDINGS COULD NOT BE ATTENDED PROPERLY AND FOR THE SAME REASON THE APPELLATE PROCEEDINGS WERE ALSO WENT UNATTENDED. THE LD. COUNSEL SUBMITTED A DETAILED PROFIT CHART SHOWING THE PROFIT IN EARLIER YEARS. IN OUR CONSIDERED OPINION, THIS NEEDS TO BE VERIFIED AT THE ASSESSMENT STAGE. WE, THEREFORE, RESTORE THIS ISSUE TO THE FILE OF THE AO. THE ASSESSEE IS DIRECTED TO ATTEND THE ASSESSMENT PROCEEDINGS AND EXPLAIN ITS CASE PROPERLY WITH ITA. NO. 1554 & 1535 /M/2013 3 SUPPORTING DOC UMENTARY EVIDENCES. THE AO IS DIRECTED TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE EVIDENCES TO BE SUBMITTED BY THE ASSESSEE AFTER GIVING REASONABLE AND FAIR OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 1535/MUM/2013 A.Y 2009 - 10 8. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) DID NOT ADMIT THE APPEAL FOR NON - PAYMENT OF TAX. 9. THE LD. COUNSEL FOR THE ASSESSEE STATED BEFORE US THAT INADVERTENTLY IN THE FORM NO. 35 FILED BEFORE THE LD. CIT(A), THE DETAILS RELATING TO PAYMENT OF TAXES COULD NOT BE FURNISHED. IT IS THE SAY OF THE LD. COUNSEL THAT SOME OF THE TAXES WERE PAID QUA TAX DEDUCTED AT SOURCE AND THE BALANCE TAX HAS NOW BEEN PAID. CHALLAN FOR THE PAYMENT OF TAX HAS BEEN SUBMITTED BEFORE US. 10. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE DOCUMENTARY EVIDENCES FILED IN SUPPORT OF THE PAYMENT OF TAXES. IN THE INTEREST OF JUSTICE, WE RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A). THE LD. CIT(A) IS DIRECTED TO ADMIT THE APPEAL AND DECIDE THE SAME ON THE MERITS OF THE CASE AFTER GIVING REASONABLE AND FAIR OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA. NO. 1554 & 1535 /M/2013 4 10. IN THE RESUL T, BOTH THE APPEALS FILED BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 7 TH SEPTEMBER , 2015 SD/ - SD/ - ( RAM L AL NEGI ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 7 TH SEPTEMBER , 2015 . . ./ RJ , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI