MOHD HUSSAIN NOOR MOHD SHAIKH, MUMBAI V. ITO 18(3)(3), MUMBAI

ITA 1932/MUM/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2510 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 29-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3); 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO 1932/MUM/2016 ASSESSMENT YEAR: 2009-10 SHRI. MOHD. HUSSAIN NOOR MOHD. SHAIKH, 3/303, KHWAJA PALACE, BOREN ROAD, OFF HILL ROAD, BANDRA (W), MUMBAI- 400050. PAN:- AVQPS7666B VS. THE ITO - 18(3)(3), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. PRAMOD KUMAR PARIDA RESPONDENT BY : SHRI. SANJEEV JAIN. DATE OF HEARING: 0 8 /0 6 / 2016 DATE OF PRONOUNCEMENT: 21/10/20 16 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGA INST ORDER DATED 12/01/2016 PASSED BY THE CIT(A)-33, MUMBAI, FOR THE ASSESSMENT YEAR 2009- 10 WHEREBY THE LD CIT(A) PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED BY THE AO U/S 1 43(3) OF THE INCOME TAX ACT,1961 (FOR SHORT THE ACT). 2. THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 DECLARING THE TOTAL INCOME OF RS.1,48,380/- . THE ASSESSMENT WAS COMPLETED U/S 143(3) DETERMINING THE TOTAL INCOME O F RS. 1,00,44,447/- AFTER MAKING ADDITIONS INCLUDING ADDITIONS U/S 68 AND 69 OF THE ACT. IN FIRST APPEAL THE LD. CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASS ESSEE. STILL AGGRIEVED BY THE ORDER PASSED BY THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 2 ITA NO 1932/MUM/2016 ASSESSMENT YEAR: 2009-10 3. SINCE THE ASSESSEE HAD MOVED AN APPLICATION UNDE R RULE 46A OF THE INCOME TAX RULES TO ALLOW THE ASSESSEE TO PLACED ON RECORD CERTAIN DOCUMENTS AS ADDITIONAL EVIDENCE WHICH COULD NOT BE PRODUCED BEFORE THE A.O AND THE LD. CIT(A), THE LD. AUTHORISED REPRESENTATIVE OF THE AS SESSEE (AR) SUBMITTED THAT DUE TO IMPROPER REPRESENTATION AND FAILURE TO FILE THE RELEVANT PAPERS BEFORE THE AUTHORITIES BELOW BY THE CONCERNED CA, THE LD. AO MADE ADDITIONS UNDER SECTION 68 AND 69 OF THE ACT, WHICH WERE FURTHER CO NFIRMED BY THE LD. CIT(A). THE LD. AR FURTHER SUBMITTED THAT THE CONCERNED CA DID NOT SUBMIT THE DOCUMENTS COMPILED IN PAPER BOOK-III WHICH ARE RELE VANT TO DECIDE THE ISSUES INVOLVED IN THIS CASE AND IF THE SAID DOCUMENTS ARE NOT ADMITTED AS ADDITIONAL EVIDENCE, A GRAVE INJUSTICE WILL BE CAUSED TO THE A PPLICANT/ASSESSEE. THE LD. AR RELYING ON THE LAW LAID DOWN BY THE HONBLE RAJSTHAN HIGH COURT IN CIT VS. JAIPUR UDYOG LTD. 227 ITR 345(RAJ), HONBLE BOMBAY HIGH COURT IN SMT. PRABHAVATI V. SHAH 231 ITR 1 (BOM ) SUBMITTED THAT SINCE THE ASSESSEE HAS BEEN PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING EVIDEN CE, IT WOULD NOT BE IN THE INTEREST OF JUSTICE TO DENY THE ADMISSION OF CRUCIA L EVIDENCE FOR THE REASON THAT IT WAS NOT PRODUCED BEFORE THE AUTHORITIES BELOW. 4. THE LD. DR OPPOSED THE APPLICATION ON THE GROUND THAT SINCE THE ASSESSEE HAS FAILED TO PRODUCE THE DOCUMENTS BEFORE THE AUTHORITIES BELOW, HE IS NOW ESTOPPED FROM FILING THE SAME AT THIS STAGE. 5. WE HAVE HEARD THE RIVAL SUBMISSION AND GONE THRO UGH THE RECORD PLACED BEFORE US. IN OUR OPINION, THE REASON MENTIONED BY THE ASSESSEE FOR NON- PRODUCTION OF DOCUMENTS BEFORE THE LOWER AUTHORITIE S APPEARS TO BE REASONABLE. THEREFORE, THE ASSESSEE SHOULD GET AN OPPORTUNITY T O PRODUCE THE DOCUMENTS BEFORE THE CONCERN AUTHORITIES IN THE INTEREST OF J USTICE. 3 ITA NO 1932/MUM/2016 ASSESSMENT YEAR: 2009-10 6. WE, THEREFORE, ALLOW THE APPLICATION OF THE ASS ESSEE AND ADMIT THE ADDITIONAL EVIDENCE IN THE FORM OF PAPER BOOK NO. I II AND REMIT THE CASE TO THE ASSESSING OFFICER WITH THE DIRECTION TO PASS THE AS SESSMENT ORDER AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ON THE BASIS OF EVIDENT ON RECORD INCLUDING THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE VIDE APPLICATION DATED 30/05/2016. 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE FOR THE ASST. YEAR. 2009-10 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 21/10/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA