CHAIN - N-CHAIN, NAVI MUMBAI V. ACIT CEN CIR 14, MUMBAI

ITA 1561/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8930 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 26-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJIV DUTT
• Assessee Lawyers: N O N E
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI B. RAMAKO TAIAH,(AM) ITA NO.1561/MUM/2010 ASSESSMENT YEAR : 2003-04 M/S. CHAIN-N-CHAIN 167/171, GHAMBIR BHAVAN 1 ST FLOOR, ZAVERI BAZAR MUMBAI-400 002. ..( APPELLANT ) P.A. NO. (AAAFK 4838 L) VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-14, OLD CGO BUILDING, M.K. ROAD MUMBAI-400 020. ..( RESPONDENT ) APPELLANT BY : NON E RESPONDENT BY : SHRI SANJIV DUTT O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 22.12.2009 PASSED BY THE LD. CIT(A) FOR T HE ASSESSMENT YEAR 2003-04. 2. AT THE TIME OF HEARING NONE WAS PRESENT ON BEHALF OF THE ASSESSEE NOR FILED ANY APPLICATION FOR ADJOURNMENT OF TH E CASE DESPITE THE FACT THAT THE NOTICE OF DATE OF HEARING FIXING TH E CASE FOR 4.1.2011 WAS DULY SERVED UPON THE ASSESSEE AS PER ACKNOWLEDGEMENT CAR D AVAILABLE ON RECORD. THEREFORE, IT WAS DECIDED TO DIS POSE OF THE APPEAL EXPARTE QUA THE ASSESSEE ON MERITS AFTER HEARING THE LD . DR. ITA NO.1561/M/10 A.Y:03-04 2 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THERE WAS A SEARCH U/S.132 OF THE INCOME TAX ACT, 1961 (THE ACT) ON 10.1. 2007 IN THE CASE OF VASANTRAJ BIRAWAT AND ENTITIES AND CONNECTED PERSO NS. IN RESPONSE TO NOTICE ISSUED U/S.153A THE ASSESSEE FILED RETURN DECLARING AN INCOME OF RS.22,63,640/-. HOWEVER, THE ASSESSMENT WAS COMPLETED AT AN INCOME OF RS.48,51,243/- VIDE ORDER DA TED 30.12.2008 PASSED U/S.143(3) R.W.S. 153A OF THE ACT. ON APPEAL, AGAINST THE ADDITION OF RS.16.00 LACS MADE ON ACCOUNT OF FALL IN GROSS PROFIT IT WAS SUBMITTED BY THE ASSESSEE THAT THE IMPUGNED ASSESSMENT ORDER IS ENTIRELY BASED ON EARLIER ASSESSMENT ORDER U/S.1 43(3) OF THE ACT DATED 29.3.2006 IN THE ASSESSEE'S OWN CASE FOR THE SAME ASSESSMENT YEAR. IT WAS FURTHER SUBMITTED THAT THE SAID A SSESSMENT ORDER WAS SUBJECTED TO APPEAL BEFORE THE LD. CIT(A) AN D THEREAFTER BEFORE THE TRIBUNAL. THE TRIBUNAL PASSED THE ORDER IN ITA NO.893/MUM/2007 DATED 31.8.2009 AND SENT BACK THE MA TTER TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, FOLLOWING THE SAME THE ISSUE OF ADDITION OF RS.16.00 LACS MADE ON ACCOUNT OF GROSS PROFIT MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. HOWEVER, THE LD. CIT(A) WHILE OBSERVING IN PARA 2.1 OF HIS ORDER THAT THE ADD ITION MADE IS MAINTAINED AT THIS STAGE DIRECTED THE ASSESSING OFFICER TO DECIDE THE SAME IN ACCORDANCE WITH THE DIRECTION GIVEN BY THE TRIBU NAL IN PARA-6 APPEARING AT PAGE-3 OF THE ORDER SUPRA AND ACCORDINGLY PARTLY ALLOWED THE APPEAL. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE IS IN APPEAL BEFORE US. 5. GROUND NO.1 IS AGAINST THE SUSTENANCE OF ADDITION O F RS.16.00 LACS. ITA NO.1561/M/10 A.Y:03-04 3 6. AFTER HEARING THE LD. DR AND PERUSING THE MATERIA L AVAILABLE ON RECORD WE FIND THAT THE LD. CIT(A) HAS NOT DECIDED THE IMPUGNED ISSUE PROPERLY. IN FACT HE HAS MAINTAINED THE ADDITION AND AT THE SAME TIME SET ASIDE THE SAME TO THE ASSESSING OFFICER. IN THIS VIEW O F THE MATTER AND KEEPING IN VIEW THE ORDER OF THE TRIBUNAL SUPRA, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER AND ACCORDINGLY WE SET ASIDE THE O RDERS PASSED BY THE REVENUE AUTHORITIES ON THIS ACCOUNT AND SEN D BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER WHO SHALL DECI DE THE SAME AFRESH IN THE LIGHT OF THE DIRECTIONS GIVEN BY THE TR IBUNAL IN THE ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 2003-04 AND ACCORDI NG TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. THE GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. GROUND NO.2 IS AGAINST THE LEVY OF INTEREST U/S.234B AND 234C. 8. AFTER HEARING THE LD. DR AND PERUSING THE MATERIA L AVAILABLE ON RECORD WE FIND THAT THE LD. CIT(A) OBSERVED THAT THE SAID GROUND OF APPEAL IS CONSEQUENTIAL IN NATURE AND DIRECTED THE ASSESSIN G OFFICER TO LEVY MANDATORY INTEREST U/S.234B AND 234C AS PER LAW A FTER GIVING OPPORTUNITY TO THE APPELLANT. IN THE ABSENCE OF ANY CONTRARY MATERIAL PLACED ON RECORD BY THE ASSESSEE AGAINST THE FINDING OF TH E LD. CIT(A), WE WHILE UPHOLDING THE VIEW OF THE LD. CIT(A) IN T HIS REGARD REJECT THE GROUND TAKEN BY THE ASSESSEE. 9. GROUND NO.3 IS AGAINST THE INITIATION OF PENALTY PROCEEDING U/S.271(1)(C) OF THE ACT. ITA NO.1561/M/10 A.Y:03-04 4 10. AFTER HEARING THE LD. DR AND PERUSING THE MATERI AL AVAILABLE ON RECORD WE FIND THAT THE LD. CIT(A) OBSERVED THAT THE SAID GROUND IS PRE- MATURE AS THE PENALTY U/S.271(1)(C) HAS NOT BEEN LEVIED . NO CAUSE OF ACTION HAS ARISEN AT THIS MOMENT. NO APPEAL LIES MEREL Y ON INITIATION OF PENALTY PROCEEDING. IN THE ABSENCE OF ANY CONTRARY M ATERIAL PLACED ON RECORD BY THE ASSESSEE AGAINST THE FINDING OF THE LD. CIT(A), THE GROUND TAKEN BY THE ASSESSEE IS THEREFORE, REJECTED. 11. IN THE RESULT, ASSESSEE'S APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14.1.2011. SD/- SD/- (B. RAMAKOTAIAH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 14.1.2011. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.