ITO 22(3)(1), NAVI MUMBAI V. HARRIL THOMAS MONTEIRO, MUMBAI

ITA 2331/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55471 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 12-09-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 24-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Assessee Lawyers: RITIKA GARG
• Keywords: Principle of natural justice
• Section: 37(1); 147; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI R.S. SYAL, A.M. AND SHRI V. DURGA RAO, J.M. SL. NO. ITA NO. A.Y. APPELLANT RESPONDENT 01 2377/MUM/09 2002-03 HARRIL THOMAS MONTEIRO, A-4, RAM TANU, SECTOR- 17, PLOT NO. 20, NERUL, NAVI MUMBAI 400 706 (PAN ACRPM 4697 E) INCOME TAX OFFICER, 22(3)(4), MUMBAI. 02 2331/MUM/10 2003-04 INCOME TAX OFFICER, 22(3)(4), MUMBAI HARRIL THOMAS MONTEIRO, A-4, RAM TANU, SECTOR- 17, PLOT NO. 20, NERUL, NAVI MUMBAI 400 706 (PAN ACRPM 4697 E) 03 1270/MUM/10 2003-04 HARRIL THOMAS MONTEIRO, A-4, RAM TANU, SECTOR- 17, PLOT NO. 20, NERUL, NAVI MUMBAI 400 706 (PAN ACRPM 4697 E) INCOME TAX OFFICER, 22(3)(4), MUMBAI ASSESSEE BY : MR. RITIKA GARG REVENUE BY : MR. V.V. SHASTRI DATE OF HEARING : 12/09/2011 DATE OF PRONOUNCEMENT : 23/09 /2011 ORDER PER V. DURGA RAO, J.M.: THESE THREE APPEALS PERTAINING TO ONE ASSESSEE. TH E APPEAL BEING ITA NO. 2377 IS FILED BY THE ASSESSEE DIRECTE D AGAINST THE ORDER OF CIT(A)-XXXII, MUMBAI, DATED 27/01/06 FOR AY 2002 -03 AND THE APPEALS BEING ITA NO. 2331/MUM/10 & 1270/MUM/10 ARE CROSS APPEALS DIRECTED AGAINST THE ORDER OF CIT(A)-33, DA TED FOR ASSESSMENT ITA NOS. 2377/MUM/09, 2331 & 1270/MUM/2010 HARRIL THOMAS MOTEIRO. 2 YEAR 2003-04. SINCE COMMON ISSUES ARE INVOLVED IN T HESE APPEALS, THEY WERE HEARD TOGETHER AND, THEREFORE, A COMMON O RDER IS PASSED FOR THE SAKE OF CONVENIENCE. ITA NO. 2377/MUM/09 BY ASSESSEE FOR AY 2002-03 2. GROUND NOS. 1 & 2 PERTAINING TO PASSING THE ORD ER 143(3)/144 AND U/S 127, HAVE NOT PRESSED AT THE TIME OF HEARIN G, THEREFORE, THE SAME ARE DISMISSED AS NOT PRESSED. 3. GROUND NO. 3 IS PERTAINING TO ADDITION U/S 69 OF THE ACT AND GROUND NO. 4 IS DISALLOWANCE OF INTEREST U/S 36(1)( VIII R.W.S. 37(1) OF THE ACT. 4. GROUND NOS. 5 & 6 ARE GENERAL IN NATURE. ITA NO. 2331/MUM/10 BY REVENUE FOR AY 2003-04 5. GROUND NO. 1 & 2 ARE DIRECTED AGAINST THE ACTION OF CIT(A) IN ALLOWING RELIEF OF RS. 1,28,28,735/- OUT OF RS. 1,4 2,54,150/- MADE BY THE AO U/W 68 OF THE ACT. 6. GROUND NO. 3 IS DIRECTED AGAINST THE ACTION OF T HE CIT(A) IN DELETING THE ADDITION OF RS. 12,36,191/- MADE BY TH E AO ON ACCOUNT OF INTEREST ON OVERDRAFT PAID TO BANK. ITA NO. 1270/MUM/10 BY ASSESSEE FOR AY 2003-04 7. GROUND NO.1 IS PERTAINING TO VALIDITY OF REASSE SSMENT IN ABSENCE OF NOTICE U/S 147 R.W.S 148, GROUND NO. 2 IS ESTIMATING THE INCOME @ 10% AND GROUND NO. 3 IS INVOKING THE PROVI SIONS OF U/S 68 OF THE ACT. ITA NOS. 2377/MUM/09, 2331 & 1270/MUM/2010 HARRIL THOMAS MOTEIRO. 3 8. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO PASSED EX-PARTE ORDE R ON THE GROUND THAT THE ASSESSEE HAS NOT SUBMITTED THE REQUIRED DE TAILS/EVIDENCES AND THE SAME WAS CONFIRMED BY THE CIT(A). IT IS FUR THER SUBMITTED THAT THE ASSESSEE WAS IN HUGE FINANCIAL LOSS AND TH E C.A. MR. SUNNI VERGHESE HAD LEFT WITHOUT HANDING OVER THE RELEVANT RECORDS TO THE ASSESSEE. AFTER A DETAILED ENQUIRY, THE ASSESSEE GO T INFORMATION THAT MR. SUNNI VERGHESE WAS WORKING IN SAUDI ARABIA WITH RAS AL HAMARA TRADING ESTABLISHMENT. IT IS SUBMITTED THAT THE AS SESSEE HAS, NOW, GOT RELEVANT MATERIAL/EVIDENCE TO SUBSTANTIATE HIS CASE. IT IS ALSO SUBMITTED THAT FOR AY 2003-04, THE LEARNED CIT(A) C ONSIDERED THE RELEVANT MATERIAL AND DELETED THE ADDITION IN RESPE CT OF ADDITION MADE BY THE AO U/S 69 OF THE ACT. 9. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT IN SO FAR AS AY 2002-03 IS CONCERNED, NO EVIDENCE WAS PRODUCED E ITHER BEFORE THE AO OR BEFORE THE CIT(A), THEREFORE, THE ADDITION MA DE WAS JUSTIFIED. IN SO FAR AS AY 2003-04 IS CONCERNED, THE LEARNED CIT( A) DELETED THE ADDITION WITHOUT CALLING FOR A REMAND REPORT FROM T HE AO. 10. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MAT ERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE ISSUE INVOLVED IN BOTH THE ASSESSMENT YEARS UNDER CONSIDE RATION ARE MATERIALLY IDENTICAL. AFTER CONSIDERING THE FACTS O F THE CASE AND SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE ASS ESSEE AS WELL AS CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE, WE S ET ASIDE THE ORDERS OF THE CIT(A) IN BOTH THE YEARS UNDER CONSIDERATION AND REMIT THE ISSUES BACK TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE SAME DE-NOVO AFTER CONSIDERING THE RELEVANT MATERIAL, IF ANY, PRODUCED BY THE ASSESSEE IN ACCORDANCE WITH LAW AND AFTER PROVI DING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE IN THE MATTE R. ITA NOS. 2377/MUM/09, 2331 & 1270/MUM/2010 HARRIL THOMAS MOTEIRO. 4 11. IN THE RESULT, ALL THE THREE APPEALS UNDER CONS IDERATION ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF SEPTEMBER, 2011. SD/- SD/- (R.S. SYAL) (V. DURGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 23 RD SEPTEMBER, 2011 KV COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, H BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI.