LAFFANS PETROCHEMICALS LTD., MUMBAI V. M/s. DCIT - 8(2), MUMBAI

ITA 2875/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0915 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 26-07-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 28-04-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRADEEP S HEDAOO
• Keywords: Additional evidence
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI D.K. AGARWAL, J.M. AND SHRI A.L. GEHLOT , A.M. ITA NO. 2875/M/2008 ASSESSMENT YEAR: 2004-05 LAFFANS PETROCHEMICALS LTD., APPELLANT 10, LUTHRA INDL. COMPLEX, ANDHERI KURLA ROAD, SAFED PHOOL, MUMBAI 400 072 (PAN AAACL 0645 D) VS. DY. COMMISSIONER OF INCOME-TAX RESPONDENT CIRCLE 8(2), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. APPELLANT BY : MR. SHEKHAR GUPTA RESPONDENT BY : MR. PRADEEP S. HEDAOO ORDER PER A.L. GEHLOT, A.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A)- VIII, MUMBAI, PASSED ON 13.03.2008 F OR THE ASSESSMENT YEAR 2004-05 WHEREIN THE ASSESSEE HAS RA ISED THE FOLLOWING GROUND OF APPEAL:- 1. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN SUSTAINING THE ADDITION U/S 14A EQUI VALENT TO 5% OF THE DIVIDEND INCOME. 2. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN SUSTAINING THE DISALLOWANCE OF COMMI SSION OF RS. 6,95,505/-. 3. THE LEARNED CIT(APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN SUSTAINING THE DISALLOWANCE OF REPAI RS AND MAINTENANCE OF RS. 7,81,297/-. 2. GROUND NOS. 1 & 3 HAS NOT BEEN PRESSED BY THE LE ARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEF ORE US. GROUND NO. 4 IS GENERAL IN NATURE. THEREFORE, THE EFFECTIV E IS ONLY GROUND NO. 2. ITA NO. 2875/M/08 LAFFANS PETROCHEMICALS LTD. 2 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE AO DI SALLOWED THE COMMISSION AND BROKERAGE OF RS. 6,95,505/- IN THE A BSENCE OF ANY DETAILS AND EVIDENCE AS THE SAME WERE NOT FURNISHED BY THE ASSESSEE AT THE TIME OF ASSESSMENT PROCEEDINGS. THE CIT(A) CONFIRMED THE SAID DISALLOWANCE MADE BY THE AO BY O BSERVING AS UNDER:- I HAVE CAREFULLY EXAMINED THE ISSUE AND FIND THAT S UCH DETAILS OF COMMISSION WHICH HAVE BEEN GIVEN IN THE APPELLAT E PROCEEDINGS WERE NOT MADE AVAILABLE TO THE AO DURIN G THE ASSESSMENT PROCEEDINGS. I DO NOT FIND ANY PLEA OF T HE APPELLANT REGARDING ADMISSION OF ADDITIONAL EVIDENC E NOR DO I SEE ANY REASONS TO ACCEPT THIS EVIDENCE NOW PLACED BEFORE THE UNDERSIGNED IN AS MUCH AS THERE IS ABSOLUTELY NOTHI NG ON RECORD WHICH COULD INDICATE THAT THE APPELLANT WAS PREVENTED FROM FURNISHING THESE DETAILS TO THE AO FOR REASONS WHICH WERE BEYOND ITS CONTROL OR THAT THE AO HAD REFUSED TO AC CEPT SUCH EVIDENCE. UNDER THE CIRCUMSTANCES, THE STAND OF THE AO IS UPH ELD AND SO IS THE DISALLOWANCE. THE GROUND IS DECIDED AGAINST THE APPELLANT. 4. THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAS F URNISHED COMPLETE DETAILS OF BROKERAGE AND COMMISSION OF WH ICH COPIES HAVE BEEN PLACED IN THE PAPER BOOK FROM PAGE 4 ONWA RDS. FROM THE PAGE 4 OF THE PAPER BOOK, THE LEARNED AR POINTED OU T THAT SUCH BROKERAGE AND COMMISSION HAS BEEN CLAIMED EARLIER Y EAR ALSO AND THE SAME WERE ALLOWED. THE LEARNED AR FURTHER SUBMI TTED THAT THE CIT(A) DID NOT APPRECIATE THE FACT THAT WHATEVER TH E DETAILS FURNISHED BEFORE HIM WAS PART AND PARCEL OF THE BOO KS OF ACCOUNT AND NO ADDITIONAL EVIDENCES WERE FURNISHED. 5. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF CIT(A) AND SUBMITTED THAT THE ASSESSEE FURNISHED TH E ADDITIONAL EVIDENCES BEFORE THE CIT(A) AND THE SAME WAS POINTE D OUT BY THE LEARNED AR WITHOUT FORMULATING THE REASONS FOR ADMI TTING THE ADDITIONAL EVIDENCE. THE LEARNED DR SUBMITTED THAT RES-JUDICATA IS NOT APPLICABLE IN THE INCOME-TAX PROCEEDINGS, THERE FORE, THE CLAIM OF THE ASSESSEE CANNOT BE ALLOWED MERELY ON THE BAS IS THAT SIMILAR CLAIM WAS ALLOWED IN THE EARLIER YEARS, PARTICULARL Y, WHEN THE ASSESSEE DID NOT PROVE THAT THE SERVICES WERE RENDE RED. ITA NO. 2875/M/08 LAFFANS PETROCHEMICALS LTD. 3 6. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD. WE FIND FORCE IN THE SUBMISSION OF THE LEARNED AR THAT DETAILS WHICH WERE FURNISHED BY THE ASSESSE E BEFORE THE CIT(A) ARE PART AND PARCEL OF THE BOOKS OF ACCOUNT. THE BOOKS OF ACCOUNT WERE PRODUCED BEFORE THE AO AND THE AO DID NOT RAISE ANY SPECIFIC QUERY OR ANY SPECIFIC PARTICULARS OF THE C OMMISSION. THE DETAILS FILED BEFORE THE CIT(A) OUGHT TO HAVE BEEN ADMITTED IN THE INTEREST OF JUSTICE, EVEN IF IT IS PRESUMED THAT TH E SAME AS ADDITIONAL EVIDENCE. IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT PROPER TO REMIT THIS ISSUE BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO CONSIDER THOSE DETAI LS FURNISHED BY THE ASSESSEE BEFORE CIT(A)AND ALSO THE MATERIAL AND EVIDENCE SHALL FURNISH BY THE ASSESSEE AT THE TIME OF FRESH HEARIN G AND PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER PROVIDI NG REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF JULY, 2010. SD/- SD/- (D. K. AGARWAL) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED: 30 TH JULY, 2010 ITA NO. 2875/M/08 LAFFANS PETROCHEMICALS LTD. 4 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, H BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON 26.7.10 SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR 27.7.10 SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER