ASHOK JAIN, MUMBAI V. ITO 9(2)(1), MUMBAI

ITA 268/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75436 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-01-2014
• Assessment Year: 1997-1998
• Appeal Filed On: 11-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Assessee Lawyers: HIMANK D ESAI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI D KARUNAKARA RAO, ACCOUNTANT MEMBER & SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.268/MUM/2011 : ASST.YEAR 1997-98 SHRI ASHOK JAIN, SAPNA SOCIETY, FLAT NO.4, NEXT TO SUNDERVAN, S.V.ROAD, NEAR BANK OF INDIA, VILE PARLE (W), MUMBAI- 400 056 PAN AAACT2243B VS. THE ITO 9(2)(1), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHOK SHARMA & SHRI HIMANK D ESAI RESPONDENT BY : SHRI M L PERUMAL DATE OF HEARING : 23.01.2014 DATE OF PRONOUNCE MENT : 14.02.2014 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE EXPARTE ORDER OF THE CIT(A) DISMISSING THE APPEAL OF THE AS SESSEE FOR WANT OF PROSECUTION. 2. THIS IS A SECOND ROUND OF APPEAL BEFORE THIS TRI BUNAL. THE ISSUE INVOLVED IN THIS APPEAL RELATES TO THE ADDITION OF RS.1,02,91,280/- U/S. 68 OF THE I.T.ACT. IN THE FIRST ROUND OF APPEAL, THE TRI BUNAL HAD SET ASIDE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTIONS AS GIVEN IN PARA 7 OF THE ORDER DATED ITA NO.: 268/MUM/2011 ASSESSMENT YEAR: 1997-98 2 30.09.2008 IN ITA NO. 2205/MUM/2006, WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUCED AS UNDER: 7. ON APPEAL BEFORE US THE LD. REPRESENTATIVE OF T HE ASSESSEE SMT. USHA DALAL SUBMITTED THAT THE ACTUAL REPORT AN D RESULT OF ENQUIRIES CONDUCTED BY THE DIRECTOR OF INCOME TAX (INVESTIGATION) WAS NOT FURNISHED TO THE ASSESSEE. M/S. BLUE HEAVEN BUILDERS PVT. LTD. AND M/S. ARCHIES CONSULTA NT PVT. LTD. WERE HELD TO BE BOGUS CONCERNS BY THE AO ON THE BAS IS OF ENQUIRY MADE BY THE DIRECTOR OF INCOME TAX (INVESTI GATION). IT IS ON THE THIS BASIS ASSESSEES ASSESSMENT WAS REPO RTED, BUT NO FURTHER ENQUIRIES SEEMS TO HAVE BEEN MADE BY THE AO IN RESPECT OF M/S. BLUE HEAVEN BUILDERS PVT. LTD. OR M/S. ARCH IES CONSULTANT PVT. LTD. TO SEE WHETHER THEY WERE GENUI NE CONCERNS OR BOGUS CONCERNS. IN THE CIRCUMSTANCES, IN THE IN TEREST OF JUSTICE, WE DEEM IT APPROPRIATE TO SET ASIDE THE IS SUE BACK TO THE FILE OF THE AO FOR CONSIDERATION DENOVO AFTER GIVIN G AMPLE OPPORTUNITY TO THE ASSESSEE TO PRESENT HIS CASE. 3. THE LEARNED AR BEFORE US HAS SUBMITTED THAT THE REVENUE IN THE SECOND ROUND OF PROCEEDINGS DID NOT FURNISH TO THE ASSESSE E THE REQUIRED DOCUMENTS SUCH AS THE ANNUAL REPORT AND RESULT OF ENQUIRIES C ONDUCTED BY THE IT (INVESTIGATION). EVEN THE AO DID NOT COMPLY WITH T HE OTHER DIRECTIONS OF THE TRIBUNAL IN MAKING FURTHER ENQUIRIES. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE F INDINGS OF THE LOWER AUTHORITIES. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND HAVE ALSO GONE THROUGH THE RECORD. A PERUSAL OF THE ASS ESSMENT ORDER IN QUESTION REVEALS THAT THE REQUIRED DOCUMENTS, NON-PRODUCTION OF WHICH WAS AGITATED BY THE ASSESSEE BEFORE THE TRIBUNAL IN THE FIRST ROUND OF APPEAL, WERE NOT PROVIDED BY THE REVENUE TO THE ASSESSEE. EVEN THE AO DID NOT ISSUE SUMMONS AS WERE REQUESTED BY THE ASSESSEE TO THE AO. FROM THE ASSESSMENT ORDER, IT REVEALS THAT THE ASSESSEE HAS NOT BEEN PROVIDED WIT H DUE OPPORTUNITY TO ITA NO.: 268/MUM/2011 ASSESSMENT YEAR: 1997-98 3 DEFEND HIS CASE. EVEN THE LEARNED CIT(A) HAS DISMI SSED THE APPEAL OF THE ASSESSEE EXPARTE, WITHOUT GIVING ANY FINDINGS ON TH E MERITS OF THE CASE. UNDER SUCH CIRCUMSTANCES, THE IMPUGNED ORDER IS HER EBY SET ASIDE AND THE CASE IS REMANDED TO THE FILE OF THE AO FOR DENOVO A SSESSMENT WITH A DIRECTION TO FURNISH TO THE ASSESSEE THE REQUIRED DOCUMENTS A ND ALSO TO CONDUCT NECESSARY ENQUIRIES AS PER THE DIRECTIONS GIVEN BY THE TRIBUNAL VIDE ORDER DATED 30.09.2008. THE APPEAL OF THE ASSESSEE IS A CCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14.02.2014 SD/- SD/- (D KARUNAKARA RAO) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 14 TH FEBRUARY, 2014 SA COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T. CONCERNED MUMBAI 4. THE CIT (A) CONCERNED MUMBAI 5. THE DR, A - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI