A.C.I.T.15(2), MUMBAI V. R & N TV PRODUCTION, MUMBAI

ITA 2691/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8520 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 04-10-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 07-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Keywords: Business income; Tangible material
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 2691/MUM/2011 ASSESSMENT YEAR-2007-08 THE ACIT 15(2), MATRU MANDIR, TARDEO MUMBAI-400 008 VS. M/S. R&N TV PRODUCTION, RSC 4,55 MEHER BUNGLOW, PARK STREET, S.V. PATEL NAGAR, MHADA, ANDHERI(W), MUMBAI-400 053 PAN-AAHFR 6140D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI A.B KOLI RESPONDENT BY: NONE DATE OF HEARING :04.10.2012 DATE OF PRONOUNCEMENT:04.10.2012 O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)- 26, MUMBAI DT. 17.01.2011 PERTAINING TO ASSESSMENT YEAR 2007-08. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE RE VENUE IS THAT THE LD. CIT(A) ERRED IN LAW BY HOLDING THAT EX-PARTE ASSESS MENT MADE U/S. 144 OF THE I.T. ACT IS BAD IN LAW. REVENUE IS FURTHER AGGRIEVE D BY THE FINDINGS OF THE LD. CIT(A) ALLEGING THAT THE LD. CIT(A) HAS ADMITTED FR ESH EVIDENCE THEREBY VIOLATING THE PROCEDURE LAID DOWN UNDER RULE 46A OF THE I.T. RULES. ITA NO. 2691/M/2011 2 3. THE FACTS OF THE CASE ARE THAT FOR THE YEAR UNDE R CONSIDERATION THE ASSESSEE FILED E-RETURN DECLARING TOTAL INCOME AT RS. 1,18,76,050/-. THE ASSESSING OFFICER OBSERVED THAT NONE RESPONDED TO T HE NOTICES ISSUED U/S. 143(2) AND 142(1) OF THE ACT WHICH PROMPTED THE AO TO PROCEED AND COMPLETE THE ASSESSMENT U/S. 144 OF THE ACT. THE AS SESSMENT WAS COMPLETED ON ESTIMATING THE BUSINESS INCOME AT RS. 1,66,93,90 0/-. 4. AGGRIEVED BY THIS FINDINGS OF AO, THE ASSESSEE C ARRIED THE MATTER BEFORE THE LD. CIT(A). IT WAS CONTENDED THAT THE AO HAS NOT SERVED ANY NOTICES U/S. 142(1) OR 143(2) OF THE ACT. THE ASSE SSEE ALSO CHALLENGED THE JURISDICTION OF THE AO CLAIMING THAT THE AO HAS NO JURISDICTION OVER THE ASSESSEE. THE LD. CIT(A) WAS CONVINCED THAT THE AO HAS WRONGLY PASSED EX PARTE ASSESSMENT ORDER. THE LD. CIT(A) FURTHER OBS ERVED THAT THE AO HAS NO JURISDICTION OVER THE ASSESSEE AND THERE IS NO FIND ING IN THE BODY OF THE ASSESSMENT ORDER THAT THE NOTICES ISSUED WERE SERVE D ON THE ASSESSEE. ON MERIT, THE LD. CIT(A) WAS CONVINCED THAT THERE IS N O BASIS WHATSOEVER WITH THE AO TO ESTIMATE NET PROFIT AT THE RATE OF 25% OF GROSS PROFESSIONAL RECEIPT. ACCORDINGLY, THE APPEAL WAS ALLOWED. 5. THE REVENUE IS AGGRIEVED BY THIS FINDINGS OF LD. CIT(A) AND IS BEFORE US. 6. AS NO ONE APPEARED FOR AND ON BEHALF OF THE ASSE SSEE, WE HAVE PROCEEDED TO DECIDE THE APPEAL EX PARTE. 7. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE L OWER AUTHORITIES. WE FIND THAT THE LD. CIT(A) HAS GIVEN A CATEGORICAL FI NDING THAT THERE WAS NO EVIDENCE BY WHICH IT CAN BE SAID THAT STATUTORY NOT ICES U/S. 142(1) AND 143(2) WERE SERVED UPON THE ASSESSEE. THE LD. DEPARTMENTA L REPRESENTATIVE COULD NOT BRING ANY TANGIBLE MATERIAL TO SUBSTANTIATE THE CLAIM OF THE AO THAT THE NOTICES WERE DULY SERVED. AS NOTHING HAS BEEN BROUG HT ON RECORD TO CONTROVERT THE FINDING OF THE LD. CIT(A), WE DO NOT FIND ANY REASON TO TINKER ITA NO. 2691/M/2011 3 WITH THE FINDINGS OF THE LD. CIT(A). ACCORDINGLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 04.10.2012 DAY OF OCTOBE R, 2012 SD/- SD/- (D.MANMOHAN) (N.K. BILLAIYA ) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED 4 TH OCTOBER, 2012 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR D BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI