Sri. JAYAKAR S. SHETTY, MUMBAI V. ACIT - 21(1), MUMBAI

ITA 2587/MUM/2006

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75514 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 18-02-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 26-04-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Assessee Lawyers: SJTENY SALDHANA
• Keywords: Depreciation
• Section: 133(6)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, M UMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND B.R.BHASKARAN (AM ) . . , . . , ./I.T.A. NO.2587/MUM/2006 ( / ASSESSMENT YEAR : 2002-03) MRS. YASHODA J SHETTY - LEGAL HEIR OF LATE SHRI JAYAKAR S SHETTY, 1 ST FLOOR, VIRESHWAR CHAMBERS, M G ROAD, VILE PARLE (E), MUMBAI-400057 / VS. THE ASSTT. COMMISSIONER OF INCOME TAX 21(1), C-10, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDERA (E), MUMBAI-400051 ( % / APPELLANT) .. ( &% / RESPONDENT) ./ ./PAN/GIR NO. : AAQPSO742R % / APPELLANT BY : SJTENY SALDHANA &% * /RESPONDENT BY : SHRI PITAMBAR DAS * - / DATE OF HEARING : 18.2.2014 * - /DATE OF PRONOUNCEMENT : 18.2.2014 / O R D E R PER B.R.MITTAL, JM: THE LEGAL HEIR OF THE ASSESSEE HAS FILED THIS APP EAL AGAINST THE EX-PARTE ORDER OF LD. CIT(A) DATED 14.2.2006 FOR ASSESSMENT YEAR 2 002-03 ON THE FOLLOWING GROUNDS: I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN PASSING EX-PARTE ORDER CONFIRMIN G THE ADDITION OF RS.1,03,65,477/- TO THE TOTAL INCOME MADE BY THE AS SESSING OFFICER. II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED C.L.T.(A) ERRED IN REJECTING THE APPELLANTS SUBMIS SION THAT THE STATEMENT U/S. 132(4) DECLARING INCOME OF RS.1 CRORE COULD BE RETR ACTED BY THE APPELLANT AND THEREBY ERRED IN CONFIRMING ADDITIONS TO THE EXTENT OF RS.1,03,65,477/- MADE BY THE ASSESSING OFFICER. III) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN CONFIRMING THE ADDITION OF RS.98 ,72,647/- UNDER FOLLOWING HEADS MADE BY THE ASSESSING OFFICER. I.T.A. NO.2587/MUM/2006 2 A) EXCESS PURCHASES RS.35,31.343/- B) EXCESS PURCHASES U/S. 133(6) RS.16,63,212/- C) PURCHASES WHERE NOTICES. 133(6) RETURNED ANSWERED BY THE POSTAL AUTHORITIES RS. 7,18,339/- D) LABOUR CHARGES PAID TO MR. SURESH PRASAD RS.11 ,92,994/- E) LABOUR CHARGES FOR WHICH NO REPLIES RECEIVED RS. 1,65,000/- F) SUPPRESSION OF CONTRACT RECEIPTS RS. 17,46,786/- G) SUPPRESSION OF CONTRACT RECEIPTS U/S 133(6) RS. 8,54,973 /- TOTAL RS.98,72,647/- IV) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED C.L.T.(A) ERRED IN CONFIRMING DISALLOWANCE OF FOREI GN TOUR EXPENSES OF RS.3,73,500/- ON THE GROUND THAT IT WAS NOT MEANT F OR BUSINESS ACTIVITY. V) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED C.L.T.(A) ERRED IN CONFIRMING THE DISALLOWANCE OF I NTEREST MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE INTEREST FREE ADVANC ES TO M/S. MARS TRANS TRAVELS AND M/S. RELIANCE ENGINEERS WERE NOT FOR THE BUSINE SS PURPOSES AND HENCE INTEREST CLAIM TO THAT EXTENT IS NOT ALLOWABLE. VI) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED C.L.T.(A) ERRED IN CONFIRMING THE DISALLOWANCE OF C AR EXPENSES AND CAR DEPRECIATION. VII) THE APPELLANT CRAVES, LEAVE TO ADD, ALTER, AM END OR DELETE ANY GROUND(S) OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEA RING OF THE APPEAL. 2. AT THE TIME OF HEARING, THE ATTENTION OF LD. AR WAS DRAWN THAT NO ONE APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF GIVING VARIOUS OPPORTUNITIES BY HIM. HOWEVER, LD. AR STATED THAT ADDITIONAL DOCUMENTS WERE FILED BEFO RE THE LD. CIT(A) BUT THE SAME WERE NOT CONSIDERED BY HIM. LD AR ALSO WANTED TO FI LE THE ADDITIONAL DOCUMENTS BEFORE THE TRIBUNAL. HE SUBMITTED THAT THE ASSESSEE COULD NOT PURSUE THE MATTER BEFORE THE LD. CIT(A) AS HE WAS NOT KEEPING WELL AT THAT TIME . HOWEVER, LD. AR COULD NOT PRODUCE ANY DOCUMENT TO SUBSTANTIATE HIS ABOVE SUBMISSIONS . LD AR PRAYS THAT THE MATTER BE RESTORED TO THE LD. CIT(A) TO GIVE AN OPPORTUNITY TO THE LEGAL HEIR OF THE ASSESSEE TO PRESENT THE CASE. DURING THE COURSE OF HEARING LD . AR SUBMITTED THAT THE APPLICANT WILL PAY REQUISITE COST ON ACCOUNT OF NON-COMPLIANCE BEF ORE THE LD. CIT(A). LD. DR HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE LD. CI T(A) SUBJECT TO PAYMENT OF COST. 3. CONSIDERING THE ABOVE SUBMISSIONS OF THE LD. RE PRESENTATIVES OF THE PARTIES AND THE FACTS OF THE CASE, WE CONSIDER IT PRUDENT TO R ESTORE THE MATTER TO THE LD. CIT(A) TO DECIDE THE GROUNDS OF APPEAL TAKEN BY ASSESSEE AFRE SH AFTER CONSIDERING SUCH DOCUMENTS AS MAY BE FILED BY ASSESSEE BEFORE HIM SU BJECT TO PAYMENT OF COST OF RS.50,000/- TO THE DEPARTMENT. THEREFORE, WE SET A SIDE THE IMPUGNED ORDER OF LD. I.T.A. NO.2587/MUM/2006 3 CIT(A) AND RESTORE THE MATTER TO HIS FILE TO DECIDE THE SAME AFRESH AFTER CONSIDERING SUCH EVIDENCE AS MAY BE FILED BEFORE HIM AND AFTER GIVING OPPORTUNITY OF HEARING TO BOTH THE PARTIES SUBJECT TO PAYMENT OF COST BY THE ASSESSEE OF RS.50,000/- TO THE DEPARTMENT. AT THE TIME OF HEARING, LD. AR UNDER TAKES TO DEPOSIT THE SAID COST OF RS.50,000/- WITHIN A PERIOD OF 4 WEEKS FROM TODAY. HE FURTHER UNDERTAKES TO COOPERATE WITH LD. CIT(A) TO EXPEDITE THE DISPOSALS OF APPEA L AND TO FILE REQUISITE DOCUMENTS WITHIN FOUR WEEKS FROM THE DATE OF COMMENCEMENT OF PROCEEDINGS BY HIM. IT IS MADE CLEAR TO LD. AR THAT IF THE ASSESSEE FAILS TO CO-OP ERATE WITH LD. CIT(A) AND/OR TO FILE REQUISITE DOCUMENTS AS MAY BE REQUIRED BY HIM WITHI N TIME AS MAY BE PRESCRIBED BY LD. CIT(A), THE LD. CIT(A) WILL DISPOSE OFF THE APPEAL ON THE BASIS OF MATERIAL ON RECORD BEFORE HIM. LD. DR IS ALSO ADVISED TO INFORM THE CONCERNED CIT(A) THAT HE MAY DECIDE THIS APPEAL AT THE EARLIEST AS IT PERTAINS TO ASSES SMENT YEAR 2002-03. LD. AR HAS ALSO BEEN ADVISED TO ASCERTAIN FROM THE CONCERNED CIT( A) OF HIS OWN THE DATE TO BE FIXED BY HIM FOR ADJUDICATION OF THE APPEAL PREFERABLY I N THE FIRST WEEK OF MARCH 2014. 4. IN VIEW OF ABOVE, THE APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES SUBJECT TO ABOVE DIRECTION. 5. THE ABOVE ORDER WAS PRONOUNCED IN THE COURT IN THE PRESENCE OF THE REPRESENTATIVES OF THE PARTIES I.E ON 18..2.2014. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 18 TH FEBRUARY, 2014 . 1 2 18TH FEBRUARY, 2014 * SD SD ( . . , / B.R. BASKARAN ) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. % / THE APPELLANT 2. &% / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- CONCERNED 4. 7 / CIT CONCERNED 5. 8 &9 , - 9 , / DR, ITAT, MUMBAI CONCERNED I.T.A. NO.2587/MUM/2006 4 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) - 9 , /ITAT, MUMBAI