ASST CIT CIR 17(1), MUMBAI V. HAFEEZ S. CONTRACTOR, MUMBAI

ITA 1920/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6986 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 17-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D G PANJARI
• Keywords: Earning of tax free income; Question of law
• Section: 14A; 143(1); 148

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN , JM & HONBLE SH. N. K. PRADHAN, A M ./ I.T.A. NO . 1920 & 1919/MUM/2017 ( / ASSESSMENT YEAR: 2011 - 12 & 2012 - 13 ) ACIT CIR 17(1) R. NO. 117, 1 ST FLOOR, AAYAKAR BHAVAN, MUMBAI - 400 020 / VS. HAFEEZ S. CONTRACTOR, 1 ST FLOOR, SONAWALA BUILDING, 29 BANK STREET, FORT, MUMBAI - 400 023 ./ ./ PAN NO. AADPC1634R ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI MANOJ KUMAR SINGH & SH. D. G. PANJARI , DR / RESPONDENTBY : SHRI VIPUL JOSHI & MS. DINKLE HARIA , AR / DATE OF HEARING : 07.12 .2018 / DATE OF PRONOUNCEMENT : 02.01.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT TWO APPEAL S HAVE BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMIS S IONER OF INCOME TAX (APPEALS) - 50, MUMBAI, DATED 02.11.16 FOR AY 2011 - 12 AND 2012 - 13 RESPECTIVE LY. 2 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR 2. SINC E THE ISSUES RAISED IN BOTH THE APPEALS ARE IDENTICAL, THEREFORE, FOR TH E SAKE OF CONVENIENCE, THESE APPEALS ARE CLUBBED, HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER. I.T.A. NO. 1920 /MUM/201 7 (AY 2011 - 12 ) 3. FIRST OF ALL WE TAKE UP REVENUE S APPEAL IN I.T.A. NO. 1920 /MUM/201 7 (AY 2011 - 12 ) ON THE GROUNDS MENTIONED HEREIN BELOW: - 1. 'ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN HOLDING THAT THE INVOCATION OF THE PROVISIONS OF SECTION 14A WAS NOT JUSTIFIED, AND IN FURTHER HOLDING THAT THE DISSATISFACTION IN RESPECT THE ASSESSEE'S COMPUTATION OF THE DISALLOWANCE HAS BEEN NOT EXPRESSLY RECORDED IN THE ASSESSMENT ORDER, AND ACCORDINGLY DIRECTING TO DELETE THE DISALLOWANCE OF RS. 97,73,546/ - COMPUTED AS PER RULE 8D WITHOUT APPRECIATING THE FACT S THAT - (I) THE ASSESSEE IN THE INSTANT CASE HAS NOT DISCHARGED THE INITIAL ONUS PLACED UPON HIM TO ESTABLISH THE FACT THAT NO EXPENSES HAVE BEEN INCURRED FOR EARNING THE EXEMPT INCOME, IN ADDITION TO EXPLAINING AS TO HOW THE SUO MOTO DISALLOWANCE COMPUTED BY THE ASSESSEE IS ON ANY RATIONAL, LOGICAL OR 3 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR ACTUAL BASIS AND IN FURTHER EXPLAINING AS TO WHY THE EXPENDITURE EMBEDDED IN VARIOUS ACCOUNTS HEADS UNDER GENERAL ADMINISTRATIVE EXPENDITURE SHOULD NOT BE CONSIDERED FOR THE DISALLOWANCE; BEING THE ES SENTIAL PREREQUISITES, AS HELD BY THE HONTDLE MUMBAI ITAT IN THE CASES OF ASHA LALIT KANODIA, 71 TAXMANN.COM 84 AND DUFON LABORATORIES (P.) LTD. VS. DCIT, 50 TAXMANN.COM 143 AND THE HONTDLE AHMEDABAD ITAT IN THE CASE OF DCIT VS. KALPATARU POWER TRANSMISSIO N LTD., 68 TAXMANN.COM 237. (II) AS REGARDS THE EXPRESS NON RECORDING OF DISSATISFACTION IN RESPECT THE ASSESSEE'S COMPUTATION OF THE DISALLOWANCE, THE HONTDLE DELHI HIGH COURT IN THE CASE OF INDIABULLS FINANCIAL SERVICES LTD. VS. DCIT, 76 TAXMANN.CO M 268, AND THE HON'BLE DELHI ITAT IN THE CASE OF DELHI TOWERS LTD. VS. DCIT, 78 TAXMANN.COM 56, HAVE HELD THAT WHERE ASSESSING OFFICER CARRIED OUT ELABORATE ANALYSIS AND FOLLOWED STEPS ENACTED IN STATUTE AND THEN DETERMINED AMOUNT OF EXPENDITURE, MERE FACT THAT ASSESSING OFFICER DID NOT EXPRESSLY RECORD HIS SATISFACTION WHILE MAKING SAID DISALLOWANCE, WOULD NOT PER SE DESTROY MANDATE OF SECTION 14A.' 2. 'THE APPELLANT PRAYS THAT THE ORDER OF THE A.O. SHOULD BE RESTORED AND ORDER OF THE LD. CIT(A) SHOU LD BE SET ASIDE.' 4 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR 3. 'THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY.' 4. AS PER THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 28.09.11 DECLARING TOTAL INCOME AT RS. 57,57,85,070/ - . THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S 143(2) WAS ISSUED . SUBSEQUENTLY, ASSESSMENT WAS COMPLETED ON 18.03.14 DECLARING TOTAL INCOME AT RS. 58,55,58,620/ - . AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE HAS FILED RESPECTIVE APPEALS BEFORE US. HOWEVER AT PRESENT WE ARE DEALING WITH THE APPEAL FILED BY THE REVENUE BEARING ITA NO. 1920 /MUM/201 7 ON THE GROUNDS MENTIONED HEREIN ABOVE. 5 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR GROUND NO. 1 5. THIS GROUND RAISED BY THE REVENUE RELATES TO CHAL LENGING THE ORDER OF LD. CIT(A) IN DELETING THE ADDITION MADE BY AO U/S 14A R.W. RULE 8D OF I.T. ACT. 6. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD, JUDGMENT CITED BY THE PARTIES AS WELL AS THE ORDERS PASSED BY REVEN UE AUTHORITIES. BEFORE WE DECIDE THE MERITS OF THE CASE, IT IS NECESSARY TO EVALUATE THE ORDERS PASSED BY LD. CIT(A). THE LD. CIT(A) HAS DEALT WITH THE ABOVE GROUNDS RAISED BY THE REVENUE IN PARA NO. 6 TO 7 OF ITS ORDER. THE OPERATIVE PORTION OF THE ORDE R OF LD. CIT(A) IS CONTAI NED IN PARA NO. 7 OF ITS ORDER AND THE SAME IS REPRODUCED BELOW: - 7.1 I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. THE ASSESSING OFFICER NOTICED THAT THE APPELLANT HAD EARNED EXEMPT INCOME OF RS.7 ,59,10,833/ - . HE ALSO NOTICED THAT APPELLANT HAD AVERAGE INVESTMENT WORTH RS.1,95,47,09,274/ - DURING 6 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR THE PREVIOUS YEAR 2010 - 11. I FIND FROM PARAGRAPH 4.1 OF THE ASSESSMENT ORDER THAT ON THE BASIS OF THIS FACTS ALONE, THE ASSESSING OFFICER JUMPED TO THE CON CLUSION THAT THE APPELLANT OUGHT TO HAVE MADE DISALLOWANCE OF EXPENDITURE U/S 14A IN ACCORDANCE WITH PROVISION OF RULE 8D. THE ASSESSING OFFICER FAILED TO APPRECIATE THAT NOT IN EVERY CASE WHERE THE ASSESSEE HAS AND SOME KIND OF INVESTMENT, THE PROVISIONS OF SECTION 14A GETS 7.4 DURING THE COURSE OF APPEAL PROCEEDINGS, THE APPELLANT FURTHER SUBMITTED; THAT HE MAINTAINS SEPARATE BANK ACCOUNT, SEPARATE OF ACCOUNTS IN RESPECT OF INVESTMENT ACTIVITY AND PROFESSIONAL ACTIVITY* THAT THE INVESTMENTS A RE DEMAT FORM AND THEREFORE REQUIRES NO HANDLING. THAT THE DIVIDEND OF INTEREST ARE DIRECTLY CREDITED TO THE BANK AND AS SUCH NO ADMINISTRATIVE WORK IS INVOLVED. THAT THE APPELLANT HAD APPORTIONED THE EXPENSES IN THE NATURE OF ADMINISTRATIVE EXPENSES TO THE EXTENT OF RS. 1,34,394/ - BEING 20% OF THE SALARY PAID TO THE ACCOUNTANT AND TELEPHONE. 7 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR THAT THE FOLLOWING EXPENSES WERE INCURRED BY THE APPELLANT AND THAT THEY WERE DEBITED TO HIS CAPITAL ACCOUNT: 1. STT CHARGES RS. 7,67,527 2. SHARE EXPENSES RS. 9,09,637 3. DEMAT CHARGES RS. 11,391 7.5 ON GOING THROUGH THE CAPITAL A/C, I FOUND THAT STT CHARGES, SHARE EXPENSES AND DEMAT CHARGES HAVE BEEN DEBITED TO THE APPELLANT'S CAPITAL ACCOUNT. AFTER CONSIDERING ALL THE MATERIALS BEFORE ME, I HA VE COME TO THE CONCLUSION THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN INVOKING PROVISIONS OF SUBSECTION 2 OF SECTION 14A. THEREFORE, IN MY VIEW, THE DISALLOWANCE MADE BY THE ASSESSING OFFICER UNDER CLAUSE (III) OF RULE 8D WAS UNJUSTIFIED. THEREFORE, I DIRECT THE ASSESSING OFFICER TO ALLOW THE EXPENSES WHICH WERE DISALLOWED UNDER RULE 8D. IN THE RESULT, THE 2 ND , 3RD & 4TH GROUNDS OF APPEAL ARE TREATED AS ALLOWED. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE AND HEARING THE PARTIES AT LENGTH, WE FIND THAT AO HAD MADE DISALLOWANCE BY HOLDING THAT ASSESSEE HAD EARNED EXEMPT INCOME OF RS. 7,59,10,833 AND FURTHER NOTICE THAT ASSESSEE HAD AVERAGE 8 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR INVESTMENT OF RS. 1,95,47,09,274/ - DURING THE PREVIOUS YEAR 2010 - 11 . THE AO RECORDED ITS FINDING IN PAR A NO. 4 (4.1 TO 4.5) AND CONCLUDED THAT THE ASSESSEE OUGHT TO HAVE MADE DIS ALLOWANCE OF EXPENDITURE U/S 14A IN ACCORDANCE WITH RULE 8D AND THUS MADE DISALLOWANCE OF RS 97,73,546/ - AFTER ADJUSTING THE SUO MOTO DISALLOWANCE MADE BY THE ASSESSEE. LD. CIT(A) DELETED THE DISALLOWANCE MADE BY AO ONLY BY HOLDING THAT AO CAN INVOKE THE PROVISIONS OF RULE 8D ONLY IF, HAVING REGARD TO THE ACCOUNTS OF THE ASSESSEE, IS NOT SATISFIED WITH THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE IN RESPECT OF SUCH EXPENDITURE IN RELATION TO INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME UNDER THIS ACT. LD. CIT(A) ALSO CATEGORICALLY MENTIONED IN PARA NO. 7.4 OF ITS ORDER THAT THE ASSESSEE DURIN G THE COURSE OF PROCEEDINGS HAD FURTHER SUBMITTED THAT HE MAINTAINS SEPARATE BANK ACCOUNT, SEPARATE OF ACCOUNTS IN RESPECT OF INVESTMENT ACTIVITY AND PROFESSIONAL ACTIVITY , THE INVESTMENTS ARE DEMAT FORM AND REQUIRES NO HANDLING , THE DIVIDEND OF INTEREST A RE DIRECTLY CREDITED TO THE BANK AND AS SUCH NO ADMINISTRATIVE WORK IS INVOLVED , THE ASSESSEE HAD APPORTIONED THE EXPENSES IN THE NATURE OF ADMINISTRATIVE EXPENSES TO THE EXTENT OF RS. 1,34,394/ - 9 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR BEING 20% OF THE SALARY PAID TO THE ACCOUNTANT AND TELEPHONE , THE EXPENSES WERE DEBITED TO HIS CAPITAL ACCOUNT . 7. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE, CONSIDERING THE JUDGMENTS MENTIONED IN THE ORDER OF LD. CIT(A) AND CITED BY THE PARTIES, WE FIND THAT DURING THE COURSE OF APPELLATE PROCEEDI NG, ASSESSEE POINTED OUT THE FACTUAL AS WELL AS DOCUMENTS IN SUPPORT OF HIS CASE. THE LD. CIT(A) DELETED THE ADDITIONS WHILE HOLDING THAT AO HAS NOT RECORDED HIS SATISFACTION TO THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE IN RESPECT OF SUCH EXPENDITURE, HAVING REGARD TO THE ACCOUNTS OF THE ASSESSEE AND HAS NOT CONSIDERED THE DOCUMENTS IN THE RIGHT PERSPECTIVE. IT IS TRUE THAT THE POWERS OF LD. CIT(A) ARE CO - TERMINUS WITH THAT OF THE AO AND THE LD. CIT(A) COULD HIMSELF CARRIED OUT FURTHER INVESTIGATION WHI CH OUGHT TO HAVE BEEN CARRIED OUT BY THE AO, BUT IN THE PRESENT CASE, WE HAVE OBSERVED THAT LD. CIT(A) HAD ONLY POINTED OUT THE SHORT COMINGS OF THE AO AND HAS NOT CARRIED OUT FURTHER INVESTIGATIONS. THE LD. CIT(A) HAD NOT CONTROVERTED THE FINDINGS OF AO B Y ELABORATING THE DOCUMENTARY EVIDENCE. 10 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR 8. BE THAT AS IT MAY, IT IS PRIMARY DUTY BESTOWED UPON LD. CIT(A) THAT THE COMPLETE AND ALL RELEVANT FACTS OF THE CASE MUST BE BROUGHT ON RECORD AND DISCUSSED WHILE DECIDING THE APPEAL. IT WOULD BE RELEVANT HERE TO QUOTE FROM HONBLE DELHI HIGH COURT IN THE CASE OF CIT VRS. JANSAMPARK ADVERTISING AND MARKETING PVT. LTD. DATED 11.03.15, WHEREIN IT WAS HELD AS UNDER: - 35. ASSESSMENT PROCEEDINGS UNDER THE INCOME TAX ACT ARE NOT A GAME OF HIDE AND SEEK. THE INQUIRY IN THE WAKE OF A NOTICE UNDER SECTION 148 IS NOT AN EMPTY FORMALITY. IT MUST BE EFFECTIVE AND WITH A SENSE OF PURPOSE. THERE IS AN ELABORATE PROCEDURE SET OUT WHICH REQUIRES SCRUPULOUS ADHERENCE AND FOLLOWED UP ON. IN THE HIERARCHY OF THE AUTHORITIES, THE AO IS PLACED AT THE BOTTOM RUNG. THE TWO LAYERS OF APPEALS, BEFORE THE MATTER ENGAGES THE APPELLATE JURISDICTION OF THIS COURT, ARE AUTHORITIES VESTED WITH THE JURISDICTION, POWER AND OBLIGATION TO REACH APPROPRIATE FINDINGS ON FACTS. NOTICEABLY, IT IS ONLY THE APPEAL TO THE HIGH COURT, UNDER SECTION 260 - A , WHICH IS RESTRICTED TO CONSIDERATION OF 'SUBSTANTIA L QUESTION OF LAW', IF ANY ARISING. AS WOULD BE SEEN FROM THE DISCUSSION THAT FOLLOWS, THE OBLIGATION TO MAKE PROPER INQUIRY AND REACH FINDING ON FACTS DOES NOT END WITH THE AO. THIS 11 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR OBLIGATION MOVES UPWARDS TO CIT (APPEALS), AND ALSO ITAT, SHOULD IT COME TO THEIR NOTICE THAT THERE HAS BEEN DEFAULT IN SUCH RESPECT ON THE PART OF THE AO. IN SUCH EVENT, IT IS THEY WHO ARE DUTY BOUND TO EITHER THEMSELVES PROPERLY INQUIRE OR CAUSE SUCH INQUIRY TO BE COMPLETED. IF THIS WERE NOT TO BE DONE, THE POWER UNDER SECTION 148 WOULD BE RENDERED PRONE TO ABUSE. 38. THE PROVISION OF APPEAL, BEFORE THE CIT (APPEALS) AND THEN BEFORE THE ITAT, IS MADE MORE AS A CHECK ON THE ABUSE OF POWER AND AUTHORITY BY THE AO. WHILST IT I S TRUE THAT IT IS THE OBLIGATION OF THE AO TO CONDUCT PROPER SCRUTINY OF THE MATERIAL, GIVEN THE FACT THAT THE TWO APPELLATE AUTHORITIES ABOVE ARE ALSO FORUMS FOR FACT - FINDING, IN THE EVENT OF AO FAILING TO DISCHARGE HIS FUNCTIONS PROPERLY, THE OBLIGATION TO CONDUCT PROPER INQUIRY ON FACTS WOULD NATURALLY SHIFT TO THE DOOR OF THE SAID APPELLATE AUTHORITY. FOR SUCH PURPOSES, WE ONLY NEED TO POINT OUT ONE STEP IN THE PROCEDURE IN APPEAL AS PRESCRIBED IN SECTI ON 250 OF THE INCOME TAX ACT WHEREIN, BESIDES IT BEING OBLIGATORY FOR THE RIGHT OF HEARING TO BE AFFORDED NOT ONLY TO THE ASSESSEE BUT ALSO THE AO, THE FIRST APPELLATE AUTHORITY IS GIVEN THE LIBERTY TO MAKE, OR CAUSE TO BE MADE, 'FURTHER INQUIRY', IN TERMS OF SUB - SECTION (4) WHICH READS AS UNDER: - 12 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR THE COMMISSIONER (APPEALS) MAY, BEFORE DISPOSING OF ANY APPEAL, MAKE SUCH FURTHER INQUIRY AS HE THINKS FIT, OR MAY DIRECT THE ASSESSING OFFICER TO MAKE FURTHER INQUIRY AND REPORT THE RESULT OF THE SAME TO THE COM MISSIONER (APPEALS). 42. THE AO HERE MAY HAVE FAILED TO DISCHARGE HIS OBLIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGICAL CONCLUSION. BUT CIT (APPEALS), HAVING NOTICED WANT OF PROPER INQUIRY, COULD NOT HAVE CLOSED THE CHAPTER SIMPLY BY ALLOWING THE APPEAL AND DELETING THE ADDITIONS MADE. IT WAS ALSO THE OBLIGATION OF THE FIRST APPELLATE AUTHORITY, AS INDEED OF ITAT, TO HAVE ENSURED THAT EFFECTIVE INQUIRY WAS CARRIED OUT, PARTICULARLY IN THE FACE OF THE ALLEGATIONS OF THE REVENUE THAT THE ACCOUNT STATEMENTS REVEAL A UNIFORM PATTERN OF CASH DEPOSITS OF EQUAL AMOUNTS IN THE RESPECTIVE ACCOUNTS PRECEDING THE TRANSACTIONS IN QUESTION. 9. APART FROM ABOVE, WE FIND THAT HONBLE APEX COURT IN THE CASE OF KAPURCHAND SHRIMAL VRS. CIT 1981 131(IT R) PAGE 451 HAS HELD THAT T HE DUTY OF THE TRIBUNAL DOES NOT END WITH MAKING A DECLARATION THAT THE ASSESSMENTS ARE ILLEGAL AND IT IS 13 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR DUTY BOUND TO ISSUE FURTHER DIRECTIONS. THE APPELLATE AUTHORITY HAS THE JURISDICTION AS WELL AS THE DUTY TO CORREC T ALL ERRORS IN THE PROCEEDINGS UNDER APPEAL AND TO ISSUE, IF NECESSARY, APPROPRIATE DIRECTIONS TO THE AUTHORITY AGAINST WHOSE DECISION THE APPEAL IS PREFERRED TO DISPOSE OF THE WHOLE OR ANY PART OF THE MATTER AFRESH UNLESS FORBIDDEN FROM DOING SO BY THE STATUTE AND THE STATUTE DOES NOT SAY THAT SUCH A DIRECTION CANNOT BE ISSUED BY THE APPELLATE AUTHORITY IN A CASE OF THIS NATURE. 10. THEREFORE, KEEPING IN VIEW THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BA CK TO THE FILE OF AO WITH A DIRECTION TO CARRY OUT FURTHER NECESSARY INVESTIGATIONS /VERIFICATION AND RECORD REASONS IF AO IS NOT SATISFIED WITH THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE IN RESPECT OF ANY EXPENDITURE IF INCURRED BY THE ASSESSEE IN RELAT ION TO INCOME, WHICH DOES NOT FORM PART OF THE TOTAL INCOME UNDER THIS ACT. AO IS FURTHER DIRECTED TO VERIFY ALL THE DOCUMENTS PLACED ON RECORD BY THE ASSESSEE AND SO POINTED OUT IN PARA NO. 7.4 OF ORDER OF LD. CIT(A). IT IS NEEDLESS HERE TO MENTION THAT BEFORE 14 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR PASSING AFRESH ORDER OF ASSESSMENT, THE AO SHALL PROVIDE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESS E E. 11. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF AO SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE AO INDEPENDENTLY IN ACCORDANCE WITH LAW. WITH THESE DIRECTIONS, THIS GROUND OF APPEAL FILED BY THE REVENUE IS PARTLY A LLOWE D FOR STATISTICAL PURPOSES. GROUND NO. 2 & 3 12 . THESE GROUNDS RAISED BY THE REVENUE ARE GENERAL IN NATURE, THUS REQUIRES NO SPECIFIC ADJUDICATION. ITA NO. 1919/MUM/2017 (AY 2012 - 13 ) 13 . NOW WE TAKE UP REVENUES APPEALS IN ITA NO. 1919 /MUM/2017 (AY 2012 - 13 ) . SINCE WE HAVE ALREADY DECIDED THE SIMILAR G ROUNDS OF APPEAL IN ITA NO. 1920 /M UM/2017 FOR AY 2011 - 12 ON MERITS. THEREFORE , FOLLOWING OUR OWN DECISION IN 15 I.T.A. NO. 1920 & 1919 /MUM/201 7 HAFEEZ S. CONTRACTOR ITA NO. 1920 /MUM /17 , WE APPLY THE SAME FINDINGS IN THE PRESENT APPEAL IN ORDER TO MAINTAIN JUD ICIAL CONSISTENCY WHICH IS APPLICABLE MUTATIS MUTANDIS IN THE PRESENT CASE. 14 . IN THE NET RESULT, BOTH THE APPEALS FILED BY THE REVENUE STA NDS PARTLY ALLOWED FOR STATISTICAL PURPOSES WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND JAN, 2019 . SD/ - SD/ - ( N. K. PRADHAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 02 . 01 .201 9 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI