ALANKAR ORNAMAENTS & JEWELLERS, MUMBAI V. ITO WD 14(1)(4), MUMBAI

ITA 2131/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4269 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 24-03-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 30-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ISHWAR PRAKASH RATHE
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL,MUMBAI- A,BENCH , , BEFORE S/SHJOGINDER SINGH,JUDICIAL MEMBER & RAJENDRA,ACCOUNTANT MEMBER ./ITA/2131/MUM/2012 , / ASSESSMENT YEARS: 2003-04 M/S. ALANKAR ORNAMENTS & JEWELLERS PARINAL BLDG, 8 BHULESHWAR ROAD MUMBAI-400 002. PAN:AAGFA 1223 K VS. INCOME TAX OFFICER- WARD -14(1)(4),EARNEST HOUSE, NARIMAN POINT,MUMBAI-400 021. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI ARVIND KUMAR ASSESSEE BY: SH.ISHWAR PRAKASH RATHE / DATE OF HEARING: 04.04.2016 / DATE OF PRONOUNCEMENT: 04.04.2016 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA A.M. - CHALLENGING THE ORDER DATED 01.02.2012 OF CIT(A)- 25, MUMBAI THE ASSESSEE HAS FILED THE PRESENT APPEAL. 2. ASSESSEE-FIRM HAD FILED ITS RETURN OF INCOME ON 24/ 10/2003, DECLARING TOTAL INCOME RS.12, 315/-.INITIALLY THE CASE WAS PROCESSED U/S. 143(1) OF THE ACT.SUBSEQUENTLY AN ORDER U/S. 143(3) WAS PASSED ON 30.12.2005 ASSESSING THE TOTAL INCOME AT RS.13.26 LACS.WHILE COMPLETING THE ASSESSMENT THE ASSESSING OFFICER (AO) MADE DISALLOW ANCE ON ACCOUNT OF ROBBERY CLAIM NOT RECEIVED.THE ASSESSEE PREFERRED AN APPEAL BEFORE T HE FIRST APPELLATE AUTHORITY (FAA),WHO DISMISSED THE APPEAL FILED BY IT. 3. BEING AGGRIEVED BY THE ORDER OF THE FAA,THE ASSESSE E FILED AN APPEAL BEFORE THE TRIBUNAL.THE TRIBUNAL VIDE ITS ORDER DT.26.2.2010 ( ITA/6794/MUM/2008) SET ASIDE THE ORDER OF THE FAA AND RESTORED THE ISSUE TO THE FILE OF TH E AO FOR FRESH ADJUDICATION.THE TRIBUNAL MADE THE FOLLOWING OBSERVATION: 4. AFTER CONSIDERING THE SUBMISSION AND PERUSING THE M ATERIAL ON RECORD, WE FIND THAT MATTER SHOULD BE SENT BACK TO THE FILE OF AO.THE MAIN REAS ON FOR DENYING THE CLAIM OF THE ASSESSEE WAS ON THE BASIS OF REPORT OBTAINED FROM THE INSURA NCE COMPANY. COPY OF THE REPORT OBTAINED FROM THE INSURANCE COMPANY WAS NOT PROVIDED TO THE ASSESSEE.WE FURTHER NOTE THAT THE POLICE HAS GIVEN A NON TRACEABLE REPORT BY MENTIONING THAT THE CLAIM IS GENUINE, HOWEVER, NOT TRACED.THEREFORE, THEY HAVE ISSUED NON TRACEABLE RE PORT. FROM THIS REPORT IT IS CLEARLY SEEN THAT THE CLAIM OF THE ASSESSEE IS GENUINE. SINCE TH E POLICE COULD NOT RECOVER THE AMOUNT OF THEFT; THEREFORE, THEY HAVE ISSUED AN NON TRACEABLE REPORT.THERE MAY BE SO MANY REASONS IN NOT ALLOWING THE CLAIM BY THE INSURANCE COMPANY. SI NCE THE REPORT OBTAINED FROM THE INSURANCE COMPANY, WAS NOT GIVEN TO THE ASSESSEE, THEREFORE, IN VIEW OF THE FACTS AND CIRCUMSTANCES AND TO MEET THE ENDS OF JUSTICE WE RE STORE THIS ISSUE TO THE FILE OF AO TO PASS A FRESH ORDER ............... THE AO,IN PURSUANCE OF TRIBUNALS ORDER,PASSED AN O RDER HOLDING THAT THERE WAS NO CHANGE IN THE FINDING OF THE FACTS OF THE CASE AFTER THE RECE IPT OF REPORT FROM THE INSURANCE COMPANY. HOWEVER,THE AO DID NOT MENTION ANYTHING ABOUT FURNI SHING THE NECESSARY DOCUMENTS TO THE ASSESSEE. THE ASSESSEE AGAIN PREFERRED AN APPEAL B EFORE THE FAA,WHO HELD THAT CLAIM OF THEFT MADE BY THE ASSESSEE WAS NOT GENUINE AND AGAIN DISM ISSED THE APPEAL. 2131/M/12-ALANKAR 2 5. BEFORE US,THE AUTHORISED REPRESENTATIVE (AR) STATED THAT THE TRIBUNAL HAD MADE A SPECIFIC REFERENCE ABOUT THE REPORT AND HAD DIRECTED THE AO TO FURNISH A COPY OF THE SAME WHILE DECIDING THE ISSUE AFRESH. THAT THE REPORT WAS NOT MADE AVAILABLE TO THE ASSESSEE , THAT THE AO VIDE HIS LETTER DT.26.12.2014 HAD FORWARDED THE COP Y OF THE CERTAIN DOCUMENTS,THAT THE REPORT OF THE INVESTIGATOR WAS NOT MADE AVAILABLE TO THE A SSESSEE,THAT THE ASSESSEE COULD NOT REPRESENT THE CASE IN ABSENCE OF THE VITAL DOCUMENT S.THE DEPARTMENTAL REPRESENTATIVE (DR) SUPPORTED THE ORDER OF THE FAA. 6. WE FIND THAT THE TRIBUNAL HAD RESTORED BACK THE MAT TER TO THE FILE OF THE AO WITH SPECIFIC DIRECTIONS,THAT THE ASSESSEE AO HAD HANDED OVER THE SURVEYORS REPORT IN 2014 TO THE ASSESSEE- MUCH AFTER THE PASSING OF ASSESSMENT ORDER,THAT THE REPORT OF THE INVESTIGATOR WAS NOT MADE AVAILABLE TO THE ASSESSEE,THAT THE DISALLOWANCE WAS BASED ON THE REPORTS.IN OUR OPINION,THE AO SHOULD HAVE FURNISHED ALL THE RELEVANT MATERIAL TO THE ASSESSEE AFTER RECEIVING THE ORDER OF THE TRIBUNAL.BUT,HE CHOSE NOT TO GIVE THE NECESSARY DOC UMENTS TO IT.IN OUR OPINION,IT WAS A VOILATION OF PRINCIPLES OF NATURAL JUSTICE AND THE ORDER OF THE TRIBUNAL REMAINED UNEXECUTED IN REAL SENSE.IN OUR OPINION,IN THE INTEREST OF JUSTIC E,THE MATTER SHOULD BE AGAIN SENT BACK TO THE FILE OF THE AO.HE IS DIRECTED TO HAND OVER THE REPO RT OF THE INVESTIGATOR TO THE ASSESSEE AND AFFORD A REASONABLE OPPORTUNITY OF HEARING TO IT BE FORE FINALISING THE ASSESSMENT.EFFECTIVE GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE ASSESS EE,IN PART. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH ,APRIL, 2016. 04 , 2016 SD/- SD/- /JOGINDER SINGH) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 04.04.2016. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , A , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.