ADDL CIT RG 12(1), MUMBAI V. FEDCO PAINTS & CONTRACTS, MUMBAI

ITA 2035/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8413 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 12-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

I.T.A NO.2035/ MUM/2010 FEDCO PAINTS & CONTRACTS 1 IN THE INCOME TAX APPELLATE TRIBUNAL, F BENCH, MUMBAI. [ CORAM: D.K. AGARWAL, JM AND PRAMOD KUMAR, AM ] I.T.A NO.2035/ MUM/2010 ASSESSMENT YEAR: 2006-07 ADDL. CIT, RANGE 12(1) .. APPELLANT AAYAKARBHAVAN, M.K. ROAD, MUMBAI. VS FEDCO PAINTS & CONTRACTS, ,. RESPONDEN T 303, GULAB, P.D.MELLO ROAD, FORT, MUMBAI. PA NO.AAAFF 1282 H APPEARANCES: ASHIMA GUPTA, FOR THE APPELLANT K. SHIVRAM, FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHA LLENGED THE CIT(A)S ORDER DATED ,17 TH DECEMBER, 2009, IN THE MATTER OF ASSESSMENT UNDER SECT ION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2006-07, ON THE FOLLOWING GROUND: ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT (A) HAS ERRED IN LAW BY ALLOWING RELIEF TO THE ASSESSEE BY ADMITTING THE ADDITIONAL EVIDENCE SUCH AS LORRY RECEIPTS BILLS OF TRANSPORTERS ETC FILED BY THE ASSESSEE BEFORE THE CIT (A) WITHOUT GIVING AN OPPORTUNI TY UNDER RULE 46A(3) OF I.T.RULES, 1962 TO THE AO TO EXAMINE THE A DDITIONAL EVIDENCE AND TO GIVE HIS SUBMISSIONS AND HAS FURTHER FAILED TO AP PRECIATE THAT THE ASSESSEE DID NOT PRODUCE THE ABOVE ADDITIONAL EVIDE NCE BEFORE THE AO AT THE TIME OF ASSESSMENT AND HAS PRODUCED ONLY THE SE LF-MADE VOUCHERS IN RESPECT OF THE FOLLOWING EXPENDITURES CLAI MED BY HIM. I.T.A NO.2035/ MUM/2010 FEDCO PAINTS & CONTRACTS 2 EXPENDITURE ON FREIGHT CHARGES OF ` .12,24,746 RELATING TO COPPER EXPENDITURE OF FREIGHT EXPENSES ` .58,000 EXPENDITURE RELATING TO SCAFFOLDING ` .9,19,148 EXPENDITURE RELATING TO WAGES & BONUS ` .4,50,000. 2. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, DR. K .SHIVRAM, LEARNED COUNSEL FOR THE ASSESSEE FAIRLY ADMITTED THAT THE CIT (A) HAS AD MITTED THE ADDITIONAL EVIDENCES CONTRARY TO THE SCHEME OF RULE 46A(3) OF I. T.RULES, 1962 BUT HE ADDED THAT IN THE SUBSEQUENT YEAR, IN THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, THE AO HAS ALLO WED SIMILAR EXPENSES. HE, THEREFORE, SUBMITTED THAT HE HAS NO OBJECTION THE MA TTER BEING RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION ON MERITS IN THE LIGHT OF SUCH EVIDENCES AS THE ASSESSEE MAY BE ABLE TO PRODUCE. 3. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT I N VIEW OF THE UNDISPUTED POSITION THAT THE AO DID NOT HAVE AN OCCASION TO EXA MINE OR TO DEAL WITH THE ADDITIONAL EVIDENCES FILED DURING THE APPELLATE PROC EEDINGS, IT WILL INDEED BE APPROPRIATE THAT THE MATTER MAY BE EXAMINED AFRESH B Y THE AO. 4. IN VIEW OF THE ABOVE POSITION AND HAVING REGARD T O THE FAIR STAND TAKEN BY THE REPRESENTATIVES, WE DEEM IT FIT AND PROPER TO RUN TH E MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER GIVING RE ASON ABLE OPPORTUNITY OF HEARING IN ACCORDANCE WITH LAW AND BY WAY OF SPEAKIN G ORDER. THE ASSESSEE IS DIRECTED TO PLACE ON RECORD NECESSARY EVIDENCES BEFORE THE AO SO THAT THE SAME MAY BE EXAMINED. WITH THESE DIRECTIONS, THE MATTER STAND S RESTORED TO THE FILE OF THE AO. 5. IN THE RESULT, THE APPEAL STANDS ALLOWED FOR STATISTI CAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 23 RD FEBRUARY, 2011 SD/- (D.K.AGARWAL ) (JUDICIAL MEMBER) SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 23 RD FEBRUARY, 2011 PARIDA I.T.A NO.2035/ MUM/2010 FEDCO PAINTS & CONTRACTS 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),23, MUMBAI 4. COMMISSIONER OF INCOME TAX, XII, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH F, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI I.T.A NO.2035/ MUM/2010 FEDCO PAINTS & CONTRACTS 4