ITO 2(1)(1), MUMBAI V. BALKAN CHEMICALS P.LTD, DOMBIVALI

ITA 2519/MUM/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0050 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 07-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: SUBODH RATNAPARKHI
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.2519/M/2017 ASSESSMENT YEAR: 2011-12 ITO-2(1)(1), 543, AAYAKAR BHAVAN, 5 TH FLOOR, M.K. MARG, MUMBAI 400 020 VS. M/S. BALKAN CHEMICALS PVT. LTD., A-183, MIDC, PHASE-1, DOMBIVLI 421 301 PAN: AAACB1980D (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SUBODH RATNAPARKHI, A.R. REVENUE BY : SHRI B.S. BIST, D.R. DATE OF HEARING : 12.06.2017 DATE OF PRONOUNCEMENT : 21.06.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 11.01.2017 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2011-12. 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF A PPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION ON ACCOUNT OF UNEXPL AINED CREDIT ENTRIES OF THE BANK ACCOUNT. 2. THE LD. CIT(A) VIOLATED THE PROVISIONS OF RULE 4 6A OF THE I.T. RULES , BY NOT GIVING THE ASSESSING OFFICER AN OPPORTUNITY TO EXAM INE THE EVIDENCE FILED DURING APPELLATE PROCEEDING MORE SO WHEN THE ASSESSEE HAS NOT ATTENDED DURING ASSESSMENT AND THE ORDER WAS PASSED U/S. 144 OF THE I.T. ACT, 1961. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET ASIDE AND THAT OF THE AO BE RESTORED. 3. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY IS ENGAGED IN MANUFACTURING OF ICE AT MIDC, DOMBIVALI. DURING TH E ASSESSMENT ITA NO.2519/M/2017 M/S. BALKAN CHEMICALS PVT. LTD. 2 PROCEEDINGS, IT WAS FOUND THAT THERE WAS AIR INFORM ATION THAT COMPANY HAS MADE CERTAIN TRANSACTIONS THROUGH SAVING BANK ACCOU NT WITH DOMBIVALI NAGARI SAHAKARI BANK LTD. THE ASSESSING OFFICER (HEREINAF TER REFERRED TO AS THE AO) HAS CALLED FOR THE INFORMATION FROM DOMBIVALI NAGAR I SAHAKARI BANK LTD. SINCE THE ASSESSEE DID NOT REMAIN PRESENT, THE AO H AS MADE THE ADDITION. 2. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS ALLOWED THE APPEAL OF THE ASSESSEE. 3. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. DURING THE COURSE OF HEARING, THE LD. D.R. SUBMITTED THAT THE LD. CIT(A) HAS GIVEN RELIEF WITHOUT CALLING THE REMAND REPORT FROM THE AO AND T HE LD. CIT(A) HAS NOT MADE ANY INQUIRY BEFORE GRANTING RELIEF. MOREOVER, THE ASSESSEE DID NOT COOPERATE WITH THE AO AND IN ABSENCE OF ASSESSEES COOPERATION THE ORDER WAS PASSED UNDER SECTION 144 READ WITH SECTION 147 OF T HE ACT. IN THIS CASE, BEFORE GRANTING ANY RELIEF LD. CIT(A) HAS ALLOWED THE CLAI M AND NO OPPORTUNITY WAS GRANTED TO THE AO. THEREFORE, I AM OF THE VIEW THA T LD. CIT(A) HAS VIOLATED THE PROVISIONS OF RULE 46A OF THE INCOME TAX ACT BY NOT GIVING THE AO AN OPPORTUNITY TO EXAMINE THE EVIDENCE DURING THE APPE LLATE PROCEEDINGS. THEREFORE, I ALLOW THE APPEAL AND RESTORE THIS ISSU E TO THE FILE OF THE AO AND AO IS DIRECTED TO DECIDE THE MATTER AFRESH. 4. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.06.2017. SD/- (D.T. GARASIA) JUDICIAL MEMB ER MUMBAI, DATED: 21.06.2017. * KISHORE, SR. P.S. ITA NO.2519/M/2017 M/S. BALKAN CHEMICALS PVT. LTD. 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.