DR. JAYANT P. SHAH, MUMBAI V. DY CIT 11(2), MUMBAI

ITA 2204/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7627 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 19-03-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 17-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARTHASARTHI NAIK
• Keywords: Depreciation; Additional evidence; Revised return
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I BENCH BEFORE SHRI G.E. VEERABHADRAPPA (HONBLE PRESIDENT) AND SHRI VIVEK VARMA (JUDICIAL MEMBER) ITA NO. 2204/MUM/2011 ASSESSMENT YEAR: 2007-08 DR. JAYANT P. SHAH 18 TH RD. RUSHABH, CHEMBUR, MUMBAI 400071 PAN NO. ALNPS146K VS. DY. CIT 11(2) AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : MR. PANKAJ R. TOPRANI RESPONDENT BY: MR. PARTHASARTHI NAIK DATE OF HEARING : 19.03.2012 DATE OF PRONOUNCEMENT : 28.03.2012 ORDER PER VIVEK VARMA, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CIT(A) 3, MUMBAI DATED 05.01.2011, WHEREIN THE CIT(A) SUSTAINED THE ADDITION MADE BY THE AO IN THE ORDER PASSED U/S. 144 OF THE INCOME TAX ACT, 1961. 2. THE FACTS OF THE CASE ARE THAT THE RETU RN WAS FILED ON 31.10.2007, DECLARING AN INCOME OF RS. 35,77,071 ON 31.10.2007, THE ASSESSEE FILED A REVISED RETURN, WHEREIN THE ASSESSEE ALTERED THE FIGURE OF INTEREST PAYABLE FROM RS. 27,277 TO RS. 26,347. 3. THE AO INITIATED ASSESSMENT PROCEEDING S AND NOTICE U/S 143(2) WAS ISSUED ON 15.09.2008. IT WAS NOTICED FROM THE ASSESSM ENT ORDER THAT SEVERA L OPPORTUNITIES WERE GIVEN TO THE ASSESSEE TO FILE REQUISITE DETAILS, BUT THE ASSESSEE FAILED TO PROVIDE THE ITA NO.2204/MUM/2011 ASSESSMENT YEAR: 2007-08 2 SAME. THE AO, THEREFORE MADE ADDITIONS OF RS. 7,22,000 BEING EXCESS OF INCOME DETERMINED OVER INCOME DECLARED, RS. 32,05 ,000 U/S. 68, RS. 13,02,750 ON ACCOUNT OF DEPRECIATION AND RS. 11,27,162 ON AC COUNT OF INTEREST ON LOANS. 4. NOT SATISFIED, THE ASSESSEE FILED THE APPEAL ON THE ADDITIONS MADE BEFORE THE CIT(A), WHEREIN IN THE SOF, THE ASSESSEE HAD GIVEN REASONS AS TO WHY THE ASSESSEE WAS UNABLE TO GIVE PROPER ASSISTANCE TO THE AO AND THAT THE NON ATTENDANCE WAS NOT DELIBERATE BUT WERE BECAUSE OF CERTAIN REAS ONS BEYOND THE CONTROL OF THE ASSESSEE AND ALSO HIS INCOME TAX COUNSEL. THE APPELLANT, BEFORE THE CIT(A), PLACED A PAPER BOOK WHEREIN, THE APPELLANT PLACED ALL THE RELEVANT MATERIAL THAT HE WANTED TO RELY UPON ALONGWITH THE APPLICATION FOR PRODUCTION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF THE IT RULES, 1962, ON 02.03.2010. 5. THE CIT(A), DEALING WITH THE APPEAL CONCENTRATED HER ATTENTION TOWARDS THE NON ATTENDANCE OF THE ASSESSEE BEFORE THE AO AND HAS WENT ON TO DEFEND THE ACTION OF THE AO IN FRAMING THE EX PARTE ASSESSMENT ORDER. THE CIT(A), IN DOING SO, REJECTED THE APPLICATION FOR ADMISSION OF ADDITIONAL EVID ENCE UNDER RULE 46A, AND CONFIRMED ALL THE ADDITIONS MADE BY THE AO. AGGRIEVED THE ASSESSEE IS BEFORE ITAT. 6. BEFORE US, THE APPELLANT PLACED THE PAPER BOOK WHICH CONTAINED THE SUBMISSIONS AS WELL AS APPLICATION FOR PROD UCTION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF THE IT RULES, DATED 02.03.2010. WE FIND FROM THE GR OUNDS OF APPEAL, THAT GROUND NO. 2. BEING THE FIRST EFFECTIVE GROUND WHEREIN THE ASSESSEE HAS PLEADED THAT THE CIT(A) DID NOT EXERCISE THE POWERS UNDER RULE 46A, WHICH THE CIT (A) SHOULD HAVE DONE. 7. NOT GOING INTO OTHER GROUNDS, WE FEEL IT NECESSARY THAT THE ADDITIONAL EVIDENCE WHICH THE ASSESSEE WANTED THE CIT(A) TO EXAMINE, NEEDS TO BE LOOKED INTO. IF THE CIT(A) HAD ADMITTED THE ADDITIONAL EVIDENCE, SHE TOO WOULD HAVE DIRECTED THE AO TO LOOK INTO EVIDENCE BEING FILED BY THE ASSESSEE, WE THEREFORE, IN THE INTEREST OF JUSTICE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND DIRECT THE AO TO PASS FRESH ORDER AFTER ITA NO.2204/MUM/2011 ASSESSMENT YEAR: 2007-08 3 GOING THROUGH THE ADDITIONAL EVIDENCE THAT THE ASSESSEE HAD BEEN PRAYING TO BE EXAMINED. 8. THE ORDERS OF THE REVENUE AUTHORITIES ARE THEREFORE SET ASIDE WITH THE DIRECTIONS AS MADE HEREINABOVE. OTHER GROUNDS ARE NOT BEING ADJUDICATED AS THE IMPUGNED ORDER HAS BEEN SET ASIDE ON TECHNICAL GROUND. 9. APPEAL, IS, THEREFORE, ALLO WED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 28 TH MARCH, 2012 SD/- SD/- G.E. VEERABHADRAPPA VIVEK VARMA (PRESIDENT) (JUDICIAL MEMBER) MUMBAI, DATED 28 TH MARCH, 2012 RASIKA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), -MUMBAI 4. THE CIT- MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH I MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI