ITO 17(3)(1), MUMBAI V. AVESH HANIF PITODIA, MUMBAI

ITA 1862/MUM/2014

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4007 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-08-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 19-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Additional evidence
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL , HON'BLE ACCOUNTANT MEMBER ITA NO. 1862 /MUM/201 4 (A.Y: 2008 - 09 ) INCOME TAX OFFICER 17(3)(1) ROOM NO. 621 , 6 TH FLOOR PIRAMAL CHAMBERS, PAREL, MUMBAI 400 012 V. SHRI AVESH HANIF PITODIA A/602 ZIA APARTMENT, NEXT TO ANJUMAN GIRLS HIGH SCHOOL, BELASIS ROAD , MUMBAI 400 008 PAN: AJFPP 2368 G (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI RAJESH KUMAR YADAV DATE OF HEARING : 10.07.2018 DATE OF PRONOUNCEMENT : 08 .10 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 29, BANDRA (E), MUMBAI DATED 27.12.2 013 FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE REVENUE IN ITS APPEAL HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW, THE ORDER OF THE LD.CIT(A) WHICH IS BASED ON NEW/ADDITION AL EVIDENCE WHICH HAS NOT BEEN EXAMINED BY THE AO MAY KINDLY BE SET ASIDE TO ALLOW THE DEPARTMENT TO EXAMINE THE EVIDENCE IN GREATER DETAIL AND TAKE A JUDICIOUS VIEW ON THE ISSUES DECIDED BY 2 ITA NO.1862/MUM/2014 (A.Y: 2008 - 09) SHRI AVESH HANIF PITODIA THE LD.CIT(A) IN THE ABOVE ORDER, ESPECIALLY WITH REGARD TO PAYME NTS BEING MADE TO CREDITORS OUT OF PROCEEDS EARNED FROM SALE OF THE GOODS. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD.CIT(A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. AS COULD BE SEEN FROM THE GROUND RAISED BY T HE REVENUE, THE ORDER OF THE LD.CIT(A) WAS CHALLENGED ON THE GROUND THAT THE LD.CIT(A) PASSED ORDER BASED ON NEW/ ADDITIONAL EVIDENCE WHICH HAS NOT BEEN EXAMINED BY THE AS SESSING OFFICER AND T HEREFORE THE REVENUE NOW WANTS THIS APPEAL TO BE SET ASIDE TO THE ASSESSING OFFICER FOR EXAMINATION OF TH E EVIDENCES IN GREATER DETAILS. 4. IN SPITE OF ISSUE OF NOTICE NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, WE PROCEED TO HEAR THE LD. DR AND DI SPOSE OFF THE APPEAL ON MERITS. 5. LD. DR BEFORE US SUBMITTED THAT ASSESSEE DID NOT PRODUCE ANY INFORMATION IN THE COURSE OF ASSESSMENT PROCEEDINGS AND THE ADDITION WAS MADE BY THE ASSESSING OFFICER WAS COMPLETED EXPARTE U/S. 144 R.W.S. 143(3) OF THE ACT. IT WAS FURTHER SUBMITTED THAT ASSESSEE H AS PRODUCED EVIDENCE FOR THE FIRST TIME BEFORE THE LD.CIT(A) AND THESE EVIDENCES WERE NOT EXAMINED BY THE ASSESSING OFFICER. THE LD.CIT(A) BASED ON THE N E W/ADDITIONAL EVIDENCES DELETED THE ADDITION. THEREFORE, THE MATTER REQUIRES TO GO BACK TO THE ASSESS ING OFFICER FOR PROPER EXAMINATION. 3 ITA NO.1862/MUM/2014 (A.Y: 2008 - 09) SHRI AVESH HANIF PITODIA 6. WE HAVE HEARD THE LD. DR AND PERUSED THE ORDER OF THE LD.CIT(A). THE LD.CIT(A) IN PARA NO. 32 OBSERVED THAT ASSESSEE HAS FILED A PAPER BOOK CONTAINING THE DETAILS OF IMPORT CONSIGNMENTS IN DIFFERENT YEARS ALONG WITH THE COPIES OF IMPORT INVOICES , PAYMENT DETAILS THROUGH THE BANK ACCOUNT OF M/S. CELL ON TRADES AND THE CASH FLOW STATEMENT ALONG WITH SALE/ PURCHASES REGISTERS FOR THREE YEARS. IN PARA NO . 33 OF HIS ORDER HE OBSERVED THAT THE ADDITIONAL EVIDENCES SUBMITTED BY THE ASSE SSEE WAS ADMITTED AND SINCE THES E WERE CRUCIAL TO DECIDE THE ISSUE ON HAND , ADDITIONAL EVIDENCES WERE FORWARDED TO THE ASSESSING OFFICER AND WAS ASKED TO SEND THE REMAND REPORT AFTER PROPER EXAMINATION OF THE EVIDENCES. IN PARA NO . 34 OF HIS ORDER THE LD.CIT(A) RECORDED THAT THE REMAND REPORT DATED 22.02.2013 HAS BEEN SUBMITTED BY THE ASSESSING OFFICER. BASED ON THE SUBMISSIONS OF THE ASSESSEE AND THE ADDITIONAL EVIDENCES, REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER , THE LD.CIT(A) ON PROPER E XAMINATION DELETED THE ADDITION MADE BY T HE ASSESSING OFFICER TOWARDS UN ACCOUNTED INVESTMENTS AND UNACCOUNTED PAYMENTS. THU S , THERE IS NO MERIT IN THE GROUND RAIS ED BY THE REVENUE SINCE THE NEW/ ADDITIONAL EVIDENCES HAVE BEEN SENT TO THE ASSESSING OFFICER FOR EXAMINATION AND FOR SENDING THE REMAND REPORT TO THE LD.CIT(A). THUS , WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LD.CIT(A). HENCE THE GROUND RAI SED BY THE REVENUE IS REJECTED. 4 ITA NO.1862/MUM/2014 (A.Y: 2008 - 09) SHRI AVESH HANIF PITODIA 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 08 TH OCTOBER , 2018 SD/ - SD/ - ( MANOJ KUMAR AGGARWAL ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 08 / 10 / 2018 GIRIDHAR , S R. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM