DECCAN ENTERPRISES, MUMBAI V. ITO 19(3)(1), MUMBAI

ITA 2178/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84289 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 24-11-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 18-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Additional evidence; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D B ENCH, MUMBAI , . . , BEFORE SHRI VJAY PAL RAO, JM AND SHRI N.K. BILLAIY A, AM ! './ I.T.A. NO. 2178/MUM/2010 ( / ASSESSMENT YEAR : 2006-07) M/S. DECCAN ENTERPRISES 32 DECCAN COURT 259 S.V. ROAD, BANDRA (W) MUMBAI 400050 / VS. INCOME TAX OFFICER - 19(3)(1) PIRAMAL CHAMBERS, LALBAUG MUMBAI 400012 $ ' . / PAN : AAAFD2751M ( ! $% / APPELLANT ) .. ( &'$% / RESPONDENT ) ! $% ( ) / APPELLANT BY : SHRI K. GOPAL &'$% ( ) / RESPONDENT BY : SHRI JEETENDRA KUMAR * + ( , - / DATE OF HEARING : 24.11.2014 ./01 ( , - / DATE OF PRONOUNCEMENT : 24.11.2014 2 / O R D E R PER SHRI N.K. BILLAIYA: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER PASSED BY THE CIT(A)-30, MUMBAI DATED 30.12.2009 PERTAINING TO AY 2006-07. 2. ASSESSEE HAS RAISED FIVE SUBSTANTIVE GROUNDS OF APPEAL. GROUND NO. 1 AND 2 ARE GENERAL IN NATURE AND NEED NO SEPARATE ADJUDICA TION. GROUND NO. 3 AND 4 ARE INTERRELATED. ASSESSEE IS AGGRIEVED BY THE ACTION O F THE AO IN COMPUTING BUSINESS INCOME BEING SALE OF KANDLA PROPERTY AT ` 15,42,412/- AS AGAINST DECLARED LOSS OF ` 16,21,209/-. ASSESSEE IS FURTHER AGGRIEVED BY THE A CTION OF THE AO IN ADOPTING COST OF ACQUISITION OF KANDLA PROPERTY AT ` 7,10,412/- AS AGAINST THE DECLARED COST OF ACQUISITION OF ` 38,73,621/-. 3. AT THE OUTSET THE COUNSEL FOR THE ASSESSEE MOVED A PETITION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE APPELLATE TRIBUNAL RULES. WE FIND THAT COPY OF THE ARTICLES OF AGREEMENT DATED 04.09.1991 BETWEEN MOHSINBHAI AND M/S. DECCAN ENTERPRISES AND COPY OF THE ARTICLES OF AGRE EMENT DATED 14.09.1991 BETWEEN M/S. DECCAN ENTERPRISES AND MOHSINBHAI WERE NOT PRODUCED BEFORE THE LOWER AUTHORITIES. ALSO COPY OF THE INDENTURE DATED 30.09.1992 BETWEEN MOHSINBHAI AND M/S. DECCAN ENTERPRISES WAS ALSO NOT BEFORE THE LOWER AUTHORITIES. IN A PETITION THE ASSESSEE HAS STATED THAT ONE SHRI R.C. SAMPAT, WHO WAS POWER OF ATTORNEY HOLDER, ATTENDED THE ASSESSMENT AS WELL AS THE APPE LLATE PROCEEDINGS. DUE TO HIS DEMISE THE ASSESSEE WAS NOT IN A POSITION TO ASCERT AIN THE DETAILS WHICH WERE PLACED BEFORE THE AUTHORITIES BELOW. 4. WE FIND THAT THE ADDITIONAL EVIDENCES PLACED BEF ORE US GO TO THE ROOT OF THE ISSUES. WE, THEREFORE, IN THE INTEREST OF JUSTICE A ND FAIR PLAY, ADMIT THESE ADDITIONAL EVIDENCES AND RESTORE THE ENTIRE ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO DECIDE BY DE NOVO ASSESSMENT AFTER CONSIDERING THES E ADDITIONAL EVIDENCES AND AFTER GIVING A FAIR OPPORTUNITY OF HEARING TO THE ASSESSE E. GROUND NO. 3 & 4 ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 5. GROUND NO. 5 RELATES TO THE ADDITION OF ` 3,50,000/- UNDER SECTION 68. IN ITS PETITION FOR ADMISSION OF ADDITIONAL EVIDENCE THE A SSESSEE HAS ALSO FILED CONFIRMATION LETTER DATED 31.03.2006 RECEIVED FROM M/S. JUPITER ENTERPRISES. THE ASSESSEE HAS ALSO PLACED CONFIRMATION LETTER DATED 31.03.2006 RE CEIVED FROM RASHMI SAMPAT. 6. WE FIND THAT THE AO HAS MADE ADDITION FOR WANT O F LOAN CONFIRMATION. ADMITTING THE ADDITIONAL EVIDENCE WE RESTORE THIS I SSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO EXAMINE THE ADDITIONAL EVIDENCE AS P ER PROVISIONS OF LAW AND DECIDE THE ISSUE AFRESH AFTER GIVING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSES IS ALL OWED FOR STATISTICAL PURPOSES. 3 1,4 563 , ( ! 7 '8( 9:; < = , ( , > ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH NOVEMBER, 2014. . 2 ( ./01 * 7 ?'4 24.11.2014 / ( D+ SD/- SD/- (VIJAY PAL RAO) (N.K. BILLAIYA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER * '+ MUMBAI; ?' DATED: 24 TH NOVEMBER, 2014 N.P. ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. ! $% / THE APPELLANT 2. &'$% / THE RESPONDENT. 3. * E, ( ! ) / THE CIT(A)-30, MUMBAI 4. * E, / CIT, 19, MUMBAI 5. HD &,I5 , ! - !I5 1 , * ' + / DR, ITAT, MUMBAI 6. D6 J+ / GUARD FILE. ! ( / BY ORDER, ', &, //TRUE COPY// )/(* + (DY./ASSTT. REGISTRAR) , * '+ / ITAT, MUMBAI