MUKESH BABULAL SHAH, MUMBAI V. ITO WD 17(2)(4), MUMBAI

ITA 1603/MUM/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0626 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-05-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 08-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Notional interest

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.1603/MUM/2017 : ASST.YEAR 2012-2013 SHRI MUKESH BABULAL SHAH 11, C.L.SHAH FAMILY TRUST NEAR GOKUL BUILDING, S.T.ROAD MASJID, MUMBAI 400 009. PAN : AAEPS7186B. / VS. THE INCOME TAX OFFICER WARD 17(2)(4) MUMBAI. ( / APPELLANT) ( / RESPONDENT) /APPELLANT BY : SHRI ISHWER PRAKASH RATHI /RESPONDENT BY : SHRI PURUSHOTTAM KUMAR / DATE OF HEARING : 23.05.2017 / DATE OF PRONOUNCEMENT : 05.06.2017 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT(A) DATED 01.12.2016 AND PERTAINS TO ASSESSMENT YEAR 2012-2013. 2. GROUNDS OF APPEAL READ AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE DISALLOWANCE U/S 40 (A) (IA) OF RS. 3,26,205/- BEING PAYMENT MADE TO TWO TRANSPORTER OPERATORS WITHOUT DEDUCTION OF IDS U/S 194C, WHEREAS BOTH THE TRANSPORTER OPERATORS ARE HOLDING PAN AND HENCE TDS IS NOT DEDUCTIBLE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 22,813/- OUT OF INTEREST EXPENSES BY CALCULATING NOTIONAL INTEREST ON TWO INTEREST FREE ADVANCES. ITA NO.1603/MUM/2017. SHRI MUKESH BABULAL SHAH. 2 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING ADDITION U/S 68 FOR RS. 23,00,000/- BEING LOANS AND ADVANCES RECEIVED FROM 8 PARTIES. YOUR APPELLANT CRAVES TO CONSIDER EACH OF THE ABOVE GROUNDS OF APPEAL WITHOUT PREJUDICE TO EACH OTHER AND CRAVES LEAVE TO ADD, TO ALTER, TO AMEND OR TO FURNISH FRESH AND / OR DETAILED GROUNDS OF APPEAL. 3. IN THIS CASE I NOTE THAT ASSESSEE HAS DULY SUBMITTED PERMANENT ACCOUNT NUMBER OF TWO TRANSPORT OPERATORS BEFORE THE LEARNED CIT(A). THE ASSESSEE HAS ALSO SUBMITTED CONFIRMATION OF LOANS FROM 8 (EIGHT) PARTIES BEFORE THE LEARNED CIT(A). IT WAS IN THE ABSENCE OF ABOVE EVIDENCES WHICH HAS LED TO THE ADDITION IN THIS CASE. THE ASSESSEE HAD NOT SUBMITTED THE DETAILS BEFORE THE ASSESSING OFFICER. HOWEVER, THE DETAILS WERE SUBMITTED BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) HAS ERRONEOUSLY OBSERVED THAT NO SUCH DETAILS HAS BEEN SUBMITTED BEFORE HIM BY THE ASSESSEE. HOWEVER, THE STATEMENT OF FACTS SUBMITTED BEFORE THE LEARNED CIT(A) SUPPORT THE CONTENTION OF THE ASSESSEE THAT THE SAID DETAILS WERE SUBMITTED AND THE LEARNED CIT(A) FAILED TO NOTE THE SAME. IN THESE CIRCUMSTANCES, BOTH THE COUNSEL FAIRLY AGREED THAT THE ISSUE RAISED IN THIS APPEAL NEEDS TO BE REMITTED TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY, I REMIT THE ISSUE RAISED TO THE FILE OF THE A.O. THE ASSESSING OFFICER SHALL CONSIDER THE ISSUE AFRESH AFTER CONSIDERING THE NEW EVIDENCES SUBMITTED BY THE ASSESSEE BEFORE THE LEARNED CIT(A). NEEDLESS TO ADD, THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1603/MUM/2017. SHRI MUKESH BABULAL SHAH. 3 ORDER PRONOUNCED ON THIS 05 TH DAY OF JUNE, 2017. SD/- ( SHAMIM YAHYA ) / ACCOUNTANT MEMBER MUMBAI; DATED : 05TH JUNE, 2017. DEVDAS* / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A)-28, MUMBAI 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE.