AGARWAL BUILDERS & DEVELOPERS, NAVI MUMBAI V. DCIT 22(3), MUMBAI

ITA 2872/MUM/2013

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0589 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 12-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Assessee Lawyers: H N MOTIWALLA
• Keywords: Business income; Additional evidence
• Section: 142(1); 148; 144

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NOS.2872 & 2873/MUM/2013 ASSESSMENT YEARS: 2005-06 & 2006-07 AGARWAL BUILDERS & DEVELOPERS, 203, RAIKAR BHAVAN, SECTOR 17, VASHI NAVI MUMBAI / VS. DCIT 22(3) MUMBAI ( ! /ASSESSEE) ( ' / REVENUE) P.A. NO. AAUFA3740P ! / ASSESSEE BY S/SHRI H N MOTIWALLA & PIYUSH CHHAJED ' / REVENUE BY SHRI V VIDHYADHAR # '$ % !& / DATE OF HEARING : 07/02/2018 % !& / DATE OF PRONOUNCEMENT 07/02/2018 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) BOTH THESE APPEALS ARE BY THE ASSESSEE FOR ASSESSMENT YEARS 2005-06 AND 2006-07 UPHOLDING THE ITA NO.2872 & 2873/MUM/2013 AGARWAL BUILDERS & DEVELOPERS 2 ADDITION OF RS 1,96,50,707/- ON ESTIMATE BASIS OF T HE TOTAL SALES IGNORING THE REMAND REPORT AND NO DEFECTS WER E FOUND IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND FURTHER THE ADDITION ON ACCOUNT OF CASH DEPOSITS AND UNCONF IRMED LOAN(ASSESSMENT YEAR 2005-06) AND ADDITION OF RS 36,62,000/- ON ACCOUNT OF CASH DEPOSIT IGNORING THE FACT THAT THE CASH DEPOSIT/WITHDRAWAL WAS DULY ACCO UNTED FOR IN THE BOOKS AND FURTHER ADDITION OF RS 6,29,96 9/- (ASSESSMENT YEAR 2006-07). 2. DURING HEARING THE LEARNED COUNSEL FOR THE ASSES SEE SHRI H N MOTIWALLA ALONG WITH SHRI PIYUSH CHAJJED CLAIMED THAT NO DEFECTS WERE POINTED OUT IN THE BOO KS OF ACCOUNT BY INVITING OUR ATTENTION TO THE EARLIER OR DER OF THE TRIBUNAL (PARA 5) AT PAGE 3. IT WAS ASCERTAINED TH AT EVEN PURSUANT TO THE DIRECTION OF THE TRIBUNAL SAME ORDE R WAS PASSED AND OUR ATTENTION WAS INVITED TO THE REMAND REPORT (PAGE 8 OF THE PAPER-BOOK). IT WAS EXPLAINED THAT THE EARLIER ASSESSMENT WAS FRAMED U/S. 144 OF THE ACT A ND THE ASSESSEE FILED ADDITIONAL EVIDENCE BEFORE THE LEARN ED CIT(A) WHICH WAS REFUSED TO BE ADMITTED. THE OBSER VATION MADE BY THE LEARNED CIT(A) IN PARA 5.7 (I) WAS CLAI MED TO ITA NO.2872 & 2873/MUM/2013 AGARWAL BUILDERS & DEVELOPERS 3 BE A WRONG OBSERVATION. IT WAS CONTENDED THAT IN T HE INTEREST OF JUSTICE BOTH THE APPEALS MAY BE SENT BA CK TO THE FILE OF THE LEARNED ASSESSING OFFICER. ON THE OTHER HAND, THE LEARNED DR SHRI V VIDYADHAR CLAIMED THAT THERE IS NON-COOPERATION FROM THE ASSESSEE AND, THEREFORE , THE LEARNED ASSESSING OFFICER HAD NO OPTION BUT TO PASS THE IMPUGNED ORDERS. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF BUILDING/DEVELOPING. THE ASSESSEE WAS MAINTAINING ITS ACCOUNT ON COMPUTER SYSTEM THROUGH DATA ENTRY OPERATIONS. IT WAS CLAIMED THAT THE ASSESSEE USED THE SOFTWARE AS DOS BASES PACKAGE AND THE DATA WAS NOT RETRIEVABLE WHEN THE NOTICES FOR FILING THE RETURNS WERE RECEIVED. THE STAND OF THE ASSESSEE IS THAT DUE EF FORTS WERE MADE BY THE ASSESSEE TO FIND A SOFTWARE CONSUL TANT WHO COULD RETRIEVE THE DOS BASED DATA BUT COULD NOT BE RETRIEVED. AS PER THE ASSESSEE, IN RESPONSE TO NOT ICE U/S. 148 AND 142(1) VARIOUS DETAILS WERE FURNISHED VIDE LETTER DATED 11.12.2008, 13.12.2008 AND 16.12.2008. IT IS ITA NO.2872 & 2873/MUM/2013 AGARWAL BUILDERS & DEVELOPERS 4 NOTED THAT THE ASSESSMENT WAS FRAMED U/S. 144 OF TH E ACT ON 31.12.2008 AND EVEN THE MATTER TRAVELLED TO THE TRIBUNAL ON EARLIER OCCASION. THE TRIBUNAL VIDE OR DER DATED 7.09.2011 (ITA NOS. 1692 & 1693/MUM/2011) REMANDED THE MATTER BACK TO THE FILE OF THE LEARNED CIT(A) FOR ADJUDICATION ON MERIT. THE RELEVANT PORTION OF THE ORDER (PARA 5) IS REPRODUCED HEREUNDER FOR READY REFERENCE: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GONE THROUGH THE RELEVANT MATERIAL ON RECORD. THE ASSESSMENT WAS FRAMED ON THE BASIS OF ESTIMATE AND DISALLOWANCE/ADDITIONS WERE MADE FOR WANT OF NECESSARY DETAILS AND EVIDENCE AS THE ASSESSEE COULD NOT PRODUCE THE FINAL ACCOUNT AND EVEN RETURN OF INCOME BEFORE THE ASSESSING OFFICER. ON APPEAL, THE ASSESSEE PRODUCE THE FINAL ACCOUNT BEFORE CIT(A) UPON WHICH THE CIT(A) ISSUED A REMAND REPORT AND SOUGHT THE REMAND REPORT FROM THE ASSESSING OFFICER. ONCE THE FINAL ACCOUNT WERE REFERRED TO THE ASSESSING OFFICER FOR ITS COMMENT I N THE REMAND REPORT AND SUBSEQUENTLY THE REMAND REPORT WAS FILED THEN THE CIT(A) OUGHT TO HAVE ADJUDICATED THE DISPUTE RAISED BY THE ASSESSEE IN THIS APPEAL ON MERIT. ON THE CONTRARY, THE CIT(A) DECLINED TO ADMIT THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE IN THE FORM OF FINAL ACCOUNTS AND ACCORDINGLY CONFIRMED THE ESTIMATED INCOME ASSESSED BY THE ASSESSING OFFICER. WE FURTHER NOTE THAT LEARNED CIT(A) HAS NOT DISCUSSED EVEN THE REMAND REPORT FOR DECIDING THE ISSUE ON MERIT AND THEREFORE IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN THE INTEREST OF JUSTICE WE ARE OF THE CONSIDERED OPINION THAT THE MATTER IS REQUIRE TO BE CONSIDERED AND ADJUDICATE IN THE LIGHT OF FINAL ITA NO.2872 & 2873/MUM/2013 AGARWAL BUILDERS & DEVELOPERS 5 ACCOUNTS AS WELL AS REMAND REPORT FILED BY THE ASSESSING OFFICER. HENCE WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND REMAND THE MATTER TO THE RECORD OF THE CIT(A) FOR ADJUDICATION ON MERITS OF THE ISSUES, WHICH WERE DECIDED AGAINST THE ASSESSEE AFTER CONSIDERING THE REMAND REPORT AS WELL AS FINAL ACCOUNTS FILED BY TH E ASSESSEE. IT IS ALSO NOTED THAT IN THE REMAND REPORT DATED 10.08.2009 WAS SENT BY THE ASSESSING OFFICER (DCIT) PAGES 5 TO 7 OF THE PAPER-BOOK WHEREIN THE LEARNED ASSESS ING OFFICER HAS MENTIONED THAT CERTAIN OTHER POINTS ARE REQUIRED TO BE EXAMINED AS THE ASSESSEE SENT THE RE TURNS OF INCOME THROUGH SPEED POST. IT IS FURTHER NOTED THAT IN THE SECOND REMAND REPORT DATED 10.01.2013, THE LEAR NED ASSESSING OFFICER MERELY MENTIONED THAT THE REPORT DATED 10.08.2009 MAY BE CONSIDERED AS REMAND REPORT FOR T HIS PURPOSE. IT SEEMS THAT THE NO EFFORTS HAVE BEEN MA DE TO EXAMINE THE FACTUAL MATRIX, PURSUANT TO THE DIRECTI ON OF THE TRIBUNAL FOR FRESH ADJUDICATION/EXAMINATION OF THE MATTER. THEREFORE, CONSIDERING THE TOTALITY OF FAC TS, WE ARE CONSTRAINED TO REMAND BOTH THE APPEALS TO THE FILE OF THE LEARNED ASSESSING OFFICER TO EXAMINE THE FACTUAL MA TRIX INCLUDING ADDITIONAL EVIDENCE AND DECIDE AFRESH. T HE ASSESSEE IS ALSO DIRECTED TO FURNISH THE NECESSARY EVIDENCE ITA NO.2872 & 2873/MUM/2013 AGARWAL BUILDERS & DEVELOPERS 6 TO SUBSTANTIATE ITS CLAIM. THE ASSESSEE IS FURTHER DIRECTED TO BE MORE SERIOUS IN ITS APPROACH AND SUBMIT THE NECESSARY EVIDENCE BEFORE THE LEARNED ASSESSING OFF ICER AND SHALL EXTEND ITS NECESSARY CO-OPERATION, RESULT ANTLY, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR ST ATISTICAL PURPOSES. THUS, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 7 TH FEBRUARY, 2018. SD/- (G. MANJUNATHA) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; + DATED : 07 /02/2018 SA ITA NO.2872 & 2873/MUM/2013 AGARWAL BUILDERS & DEVELOPERS 7 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. 2 2 # 3! , ( ,- ) / THE CIT, MUMBAI. 4. 2 2 # 3! / CIT(A)- , MUMBAI 5. 5'6 0! , 2 ,-& , , # $ / DR, ITAT, MUMBAI 6. 7 8$ / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI