ULHAS K. PALANDE, MUMBAI V. ITO 23(1)(4), MUMBAI

ITA 1724/MUM/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9211 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PAWAN KU MAR BEERLA
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Opportunity of being heard; Corroborative evidences
• Section: 143(3)

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMB AI - F BENCH , , BEFORE S/SH. I P BANSAL,JUDICIAL ME MBER & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.1724/MUM/2013, ! ! ! ! ' ' ' ' / ASSESSMENT YEAR-2009-10 ULHAS K. PALANDE, H-11, SHARAD INDUSTRIAL ESTATE, LAKE ROAD, BHANDUP (WEST), MUMBAI-78. PAN:AACPP4115F VS ITO WARD 23(1)(4), MUMBAI. ( #$ / ASSESSEE) ( %&#$ / RESPONDENT) !'( !'( !'( !'( ) ) ) ) /ASSESSEE BY :SHRI M SUBRAMANIAN * ) / REVENUE BY :SHRI PAWAN KUMAR BEERLA ! ! ! ! * ** * (+ (+ (+ (+ / DATE OF HEARING : 25 - 03 -2015 ,-' * (+ / DATE OF PRONOUNCEMENT : 25 -03-2015 ! ! ! ! , 1961 * ** * 254(1) (.( (.( (.( (.( / / / / ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, A.M. ! : CHALLENGING THE ORDER DT.24.12.2012 OF THE CIT(A)-3 3,MUMBAI,ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN DISMISSING THE APPEAL AND APPROVING THE FINDINGS GI VEN BY THE A.O. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN DISMISSING THE APPEAL AND THAT TOO WITHOUT GIVING F ULL AND PROPER OPPORTUNITY OF BEING HEARD IN THE MATTER. 3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED DISMISSING THE APPEAL AND THAT TOO WITHOUT APPRECIA TING FULLY AND PROPERLY THE FACTS OF THE CASE. 4 WITHOUT PREJUDICE TO THE ABOVE AND ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN APPROVING THE FINDIN G OF THE A.O. THAT THE TOTAL INCOME IS ASSESSABLE AT RS.3.4,74,890/-. 5 WITHOUT PREJUDICE TO THE ABOVE AND ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN APPROVING THE ACTION OF THE A.O. IN MAKING AN ADDITION OF RS.31,54,334/-. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OR ALL OF THE GROUNDS OF APPEAL AT ANY TIME. 2.ASSESSEE,AN INDIVIDUAL,FILED HIS RETURN OF INCOME ON 16.09.2009 DECLARING TOTAL INCOME AT RS.3,20,555/-.THE ASSESSEE IS PROPRIETOR OF M/S PUN AM ENTERPRISE WHICH IS IN BUSINESS OF MANUFACTURING OF ENGINEERING GOODS.ASSESSING OFFICE R(AO)COMPLETED THE ASSESSMENT U/S. 143(3) OF THE ON 27.12.11,DETERMINING THE INCOME OF THE ASSESSEE AT RS.34.74 LAKHS. EFFECTIVE GROUND OF APPEAL DEALS WITH ADDITION OF R S.31.54 LAKHS.DURING THE COURSE OF ASSESSMENT PROCEEDINGS,THE AO NOTICED THAT M/S ATUL INDUSTRIES, A PROPRIETARY CONCERN OF THE DAUGHTER OF THE ASSESSEE,WAS A CREDITOR OF RS. 26.0 1 LAKHS, THAT IT HAD ALSO GIVEN A LOAN OF RS. 5.53 LAKHS TO THE ASSESSEE. THE AO DIRECTED THE ASSESSEE TO FILE JUSTIFICATION WITH REGARD TO CLAIM OF CREDIT AND LOAN LIABILITY IN THE NAME O F HIS DAUGHTER WITH SUPPORTING EVIDENCE. AS PER THE AO THE ASSESSEE DID NOT FURNISH ANY EXPLANA TION.IN ABSENCE OF DOCUMENTARY EVIDENCES THE AO HELD THAT THE LIABILITY HAD SEIZED TO EXIST AND MADE AN ADDITION OF RS. 31.54 LAKHS (RS. 26.01 LAKHS+5.53 LAKHS) TO THE TOTAL INCOME OF THE ASSESSEE. 2 ITA NO.1724/MUM/13 ULHAS K. PALANDE 3 .AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HER THE ASSESSEE MA DE SUBMISSIONS ABOUT THE LOANS TAKEN BY HIM AND FILED COPY OF BALANCE-SHEET AND PROFIT A ND LOSS ACCOUNT. HE FURTHER STATED THAT BECAUSE OF MISCOMMUNICATION WITH HIS EARLIER C.A.,H E COULD FILE THE FORM NO.35 AND GROUNDS OF APPEAL BEFORE HER IN PROPER FORMAT.THE FAA TREAT ED THE APPEAL DEFECTIVE AND UPHELD THE ADDITION MADE BY THE AO. 4 .BEFORE US,THE AUTHORISED REPRESENTATIVE (AR) STATE D THAT THE AO HAD CALLED FOR THE DETAILS OF ATUL INDUSTRIES ON 28.11.2011, THAT THE ASSESSEE COULD NOT COLLECT THE INFORMATION AS DESIRED BY THE AO IN TIME, THAT THE APPEAL BEFORE T HE FAA WAS FIXED ON 20.12.2012, ON THAT DAY AN ATTEMPT WAS MADE TO SUBMIT AN ADJOURNMENT AP PLICATION,THAT THE APPLICATION WAS REFUSED,THAT SAME WAS SENT TO RPAD TO THE OFFICE OF THE FAA, AN ADJOURNMENT FOR A PERIOD OF 15 TO 20 DAYS WAS SOUGHT FOR. HE REFERRED TO THE AD JOURNMENT APPLICATION,DATED 19.12.2012, SENT BY THE ASSESSEE TO THE FAA.DEPARTMENTAL REPRES ENTATIVE(DR)LEFT THE ISSUE TO THE DISCRE - TION OF THE BENCH. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE FAA HAD DISMISSED THE APPEAL ON TECHNICAL GROUNDS T HOUGH SHE HAD MENTIONED THAT ON MERITS ALSO THE CASE WAS NOT SUSTAINABLE.WE FURTHER FIND THAT A SSESSEE HAD REQUESTED THE FAA TO ADJOURN THE CASE TO FILE NECESSARY DETAILS. WE ARE OF THE OPINI ON THAT,IN THE INTEREST OF JUSTICE,THE MATTER SHOUL D BE DECIDED AFTER CONSIDERING THE DOCUMENTS OF THE A SSESSEE WHICH HE CLAIMS TO HAVE NOT BEEN ABLE TO COLLECT.THEREFORE,WE ARE RESTORING THE MATTER TO THE FILE OF THE FAA FOR FRESH ADJUDICATION. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE FAA ON 28 .04.15 AND EXTEND FULL COOPERATION TO HIM. EFFECTIVE GROUND OF APPEAL FILED BY THE ASSESSEE IS DECIDED IN FAVOUR OF THE ASSESSEE, IN PART. EFFECTIVE GROUND OF APPEAL, FILED BY THE ASSESSEE I S BOUT NOT GIVING HIM AMPLE OPPORTUNITY TO PRESENT HIS CASE BY THE FAA DURING APPELLATE PROCEE DINGS. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS PA RTLY ALLOWED. (1 !'( 2 3 * . /(1 4 * ( 56 . ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH ,MARCH,2015. / * ,-' 7 8! 25 9 ,2015 - * . : SD/- SD/- ( /I P BANSAL) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, 8! /DATE: 25.03.2015 SK / / / / * ** * %(; %(; %(; %(; <;'( <;'( <;'( <;'( / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / #$ 2. RESPONDENT / %&#$ 3. THE CONCERNED CIT(A)/ = > , 4. THE CONCERNED CIT / = > 5. DR F BENCH, ITAT, MUMBAI / ;?. %(! , , . . . 6. GUARD FILE/ . &;( %( //TRUE COPY// /! / BY ORDER, @ / 5 DY./ASST. REGISTRAR , /ITAT, MUMBAI.