SATISH KHIMJI GALA, MUMBAI V. ITO 10(3)(4), MUMBAI

ITA 2862/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1602 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 29-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2014
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: ANUJ KISNADWALLA
• Keywords: Principle of natural justice; Additional evidence
• Section: 143(3)

Judgement Text

, , E, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.2862/MUM/2014 ASSESSMENT YEAR: 2009-10 SAT ISH KHIMJI GALA BLOCK 1-C, A WING, SHIV KRUPA, OLD, NAGARDAS RD. ANDHERI(W) MUMBAI-400069 / VS. ITO 10(3)(4 ) MUMBAI- ( APPELLANT ) (RESPONDENT ) P.A. NO. AFYPG398M APPELLANT BY SHRI ANUJ KISNADWALLA ( A R) REVENUE BY SHRI T.A KHAN (DR) / DATE OF HEARING: 29/11/2016 / DATE OF ORDER: 15/12/2016 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS), MUMBAI- 22 (IN SHORT CIT(A)}, DATED 03.02.2014 PASSED ORDER AGAI NST U/S 143(3) OF THE ACT, DATED 20.09.2011 FOR ASSESSMENT YEAR 2009- 10 ON THE FOLLOWING GROUNDS: 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE BY SHRI ANUJ KISNADWALLA, AUTHORISED REPRESENTATIVES ( AR) ON SATISH KHIMJI GALA 2 BEHALF OF THE ASSESSEE AND BY SHRI T.A. KHAN, DEPAR TMENTAL REPRESENTATIVE (CIT-DR) ON BEHALF OF THE REVENUE. 3. DURING THE COURSE OF HEARING IT WAS SUBMITTED BY T HE LD. COUNSEL THAT GROUND NO.1 WAS NOT PRESSED AND THEREF ORE SAME IS DISMISSED. 4. GROUND NO.2: IN THIS GROUND, THE ASSESSEE HAS CHALLENGED THE ACTION OF LOWER AUTHORITIES IN DISALLOWING EXPO RT COMMISSIONS PAID TO NON-RESIDENT AMOUNTING TO RS.10,56,677/-. DURING THE COURSE OF HEARING, IT WA S SUBMITTED BY THE LD. COUNSEL THAT THE ASSESSEE HAS BEEN REGULARLY MAKING PAYMENT OF EXPORT COMMISSION IN PR ECEDING AS WELL AS SUBSEQUENT YEARS AND THE SAME HAS ALWAYS BEEN ACCEPTED. IN THIS YEAR, THE DISALLOWANCE WAS MADE O F THE SAME BY THE AO WITHOUT GIVING PROPER OPPORTUNITY TO FILE REQUISITE EVIDENCES. 4.1. THUS, ADDITIONAL EVIDENCES WERE FILED BEFORE THE L D. CIT(A), BUT HE REFUSED TO ADMIT THE SAME UNDER RULE 46A. HE TOOK US THROUGH THE ORDERS PASSED BY THE LOWER AUTH ORITIES TO DEMONSTRATE THAT THESE ORDERS HAVE BEEN PASSED IN V IOLATION OF PRINCIPLES OF NATURAL JUSTICE. 4.2. PER CONTRA, LD. DR FAIRLY SUBMITTED THAT IF COUNSE L OF THE ASSESSEE UNDERTAKES TO SUBMIT THE REQUIRE EVIDENCES AND EXTEND REQUISITE COOPERATION TO THE AO, THEN THIS I SSUE MAY BE SENT BACK TO THE FILE OF THE AO. 4.3 . WE HAVE GONE THROUGH THE ORDERS PASSED BY THE LOW ER AUTHORITIES. IT IS NOTED THAT EXPORT COMMISSION HAS BEEN PAID BY THE ASSESSEE. BUT IT COULD NOT BE SUBSTANTIATED BY THE ASSESSEE BECAUSE THE REQUISITE EVIDENCES COULD NOT BE SATISH KHIMJI GALA 3 FURNISHED BEFORE THE AO. THOUGH THE ASSESSEE MADE A N ATTEMPT BEFORE THE LD. CIT(A) TO SUBSTANTIATE THE I MPUGNED EXPENSES BY FILING ADDITIONAL EVIDENCES, BUT THESE WERE NOT ADMITTED BY THE LD. CIT(A) UNDER RULE 46A. IN OUR C ONSIDERED VIEW, THESE EVIDENCES MUST BE CONSIDERED BY THE LOW ER AUTHORITIES BEFORE FINAL DECISION IS TAKEN WITH REG ARD TO THIS ISSUE. THEREFORE, WE SEND THIS ISSUE BACK TO THE FI LE OF THE AO. THE ASSESSEE IS DIRECTED TO FURNISH THE REQUISITE D ETAILS AND EVIDENCES AND TO EXTEND REQUISITE COOPERATION TO TH E AO. THE AO SHALL GIVE ADEQUATE OPPORTUNITY OF HEARING TO TH E ASSESSEE, AND SHALL DECIDE THIS ISSUE AFRESH AFTER CONSIDERIN G THE ENTIRE MATERIAL AS MAY BE PLACED BY THE ASSESSEE BEFORE TH E AO. THIS GROUND MAY BE TREATED AS ALLOW FOR STATISTICAL PURP OSES. 5. GROUND NOS. 3 & 4 ARE WITH RESPECT TO DISALLOWANCE OF FREIGHT CHARGES OF RS.69,790/- AND EXCESS DISALLOWA NCE OF RS.55748/-. 5.1. DURING THE COURSE OF HEARING IT WAS JOINTLY STATED BY THAT OUTCOME OF GROUND NO.2 WOULD HAVE BEARING ON GROUND NOS.3 & 4, THEREFORE THESE GROUNDS ARE ALSO SENT BACK TO THE FILE OF THE AO WITH OUR DIRECTIONS AS GIVEN ABOVE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE CONCL USION OF THE HEARING . SD/- (MAHAVIR SINGH ) SD/- (ASHWANI TANEJA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 15/12/2016 SATISH KHIMJI GALA 4 CTX? P.S/. .. !'#$%&%'# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A)- , MUMBAI 5. #$% &' , &' ) , / DR, ITAT, MUMBAI 6. %*+ , / GUARD FILE. / BY ORDER, # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI