CHANDANI GEMS P. LTD, MUMBAI V. ITO 5(1)(3), MUMBAI

ITA 2554/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8788 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 10-01-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 21-04-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: SAMEER G DALAL
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI B. RAMAKO TAIAH,(AM) ITA NO. 2554/MUM/2009 ASSESSMENT YEAR : 2006-07 CHANDANI GEMS P. LTD. 210, ROOPRAJ BUILDING 497 S.V.P. ROAD MUMBAI 400 004. ..( APPELLANT ) P.A. NO: (AACCC 7539 D) VS. INCOME TAX OFFICER-5(1)(3) MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHR I SAMEER G. DALAL RESPONDENT BY : SHRI SURENDRA KUMAR O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 25.2.2009 PASSED BY THE LD. CIT(A) FOR TH E ASSESSMENT YEAR 2006-07. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE COM PANY IS ENGAGED IN THE BUSINESS OF TRADING IN DIAMONDS AND JEWE LLERY, FILED RETURN DECLARING TOTAL INCOME OF RS.40,050/-. THE ASSESSI NG OFFICER AFTER SELECTING THE CASE FOR SCRUTINY ISSUED NOTICE U/S.143 (2) FOLLOWED BY QUESTIONNAIRE ALONG WITH NOTICE U/S.142(1) AND 143 (2) OF THE INCOME TAX ACT, 1961(THE ACT). IN THE ABSENCE OF ANY COMPLIANCE BY THE ASSESSEE, THE ASSESSING OFFICER COMPLETED EXPARTE ASSESSMENT ITA NO.2554/M/09 A.Y:06-07 2 U/S.144 OF THE ACT MAKING ADDITION ON ACCOUNT OF UNEXPL AINED ADDITION TO SHARE CAPITAL U/S.68 RS.1.00 LACS, ADDITION ON ACCOUNT O F UNEXPLAINED UNSECURED LOANS U/S.68 RS.24,36,747/- AND A DDITION ON ACCOUNT OF ESTIMATION OF GP @ 15% RS.18,80,655/- AND TH EREBY COMPLETED THE ASSESSMENT AT AN INCOME OF RS.44,16,400/- V IDE ORDER DATED 20.10.2008. ON APPEAL, BEFORE THE LD. CIT(A ), THE ASSESSEE FILED A PAPER BOOK ALONG WITH WRITTEN SUBMISSION AND A DDITIONAL EVIDENCE. THE LD. CIT(A) IN THE ABSENCE OF ANY APPLICA TION FOR ADMISSION OF ADDITIONAL EVIDENCE WHILE REJECTING THE A DDITIONAL EVIDENCE FILED BY THE ASSESSEE CONFIRMED THE ADDITIONS MA DE BY THE ASSESSING OFFICER . 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE VA LIDITY OF THE ORDER PASSED BY THE LD. CIT(A) ON THE GROUND OF DENIAL OF SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, REJECTION O F ADMISSION OF ADDITIONAL EVIDENCE, AND SUSTENANCE OF ADDITIONS MADE BY THE ASSESSING OFFICER . 4. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSE SSEE SUBMITS THAT SINCE NO PROPER OPPORTUNITY WAS ALLOWED, THEREFO RE, IN THE INTEREST OF JUSTICE THE MATTER MAY BE SET ASIDE TO THE FILE OF T HE LD. CIT(A) . 5. ON THE OTHER HAND THE LD. DR WHILE RELYING ON TH E ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(A) SUBMITS THAT HE HAS NO OBJECTION IF THE MATTER IS SET ASIDE TO THE FILE OF THE LD. CIT(A) . 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FI ND THAT THERE IS NO DISPUTE THAT THE ASSESSEE HAS MADE NO COMPLIANCE BEFORE THE ASSESSING OFFICER. HOWEVER BEFORE THE LD. CIT(A) HE FILE D A PAPER BOOK ITA NO.2554/M/09 A.Y:06-07 3 INTERALIA CONTAINING ADDITIONAL EVIDENCE ALONG WITH WRITTEN SU BMISSION. THE LD. CIT(A) WITHOUT GIVING ANY FURTHER OPPORTUNI TY OF BEING HEARD, MERELY IN THE ABSENCE OF ANY APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE HAS NOT ADMITTED THE ADDITIONAL EVIDENCE FILE D BY THE ASSESSEE AND HAS DECIDED THE ISSUES AGAINST THE ASSESSEE BY CONFIRMING ALL THE ADDITIONS MADE BY THE ASSESSING OFFICER . CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES O F THE CASE AND KEEPING IN VIEW THAT IN THIS CASE NO PROPER AND DUE OP PORTUNITY WAS PROVIDED BY THE LD. CIT(A), THEREFORE, IN THE INTER EST OF JUSTICE WE CONSIDER IT FAIR AND REASONABLE THAT ONE MORE OPPORTUN ITY MAY BE PROVIDED TO THE ASSESSEE TO REPRESENT HIS CASE BEFORE THE LD. CIT(A) AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND SEND BACK THE MATTER TO HIS FILE WHO SHALL DECIDE THE SA ME AFRESH AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE, ARE TH EREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, ASSESSEE'S APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19.1.2011. SD/- SD/- (B. RAMAKOTAIAH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 19.1.2011. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.