NARAYAN J THADANI, NAVI MUMBAI V. ITO 14(2)(4), MUMBAI

ITA 2882/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8706 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 14-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY R PARIKH
• Keywords: Additional evidence

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI C.N. PRASAD , JM , AND SHRI N.K. PRADHAN , AM ./ I.T.A. NO. 2882 / MUM/ 2015 ( / ASSESSMENT YEAR: 2004 - 05 ) M/S. NARAYAN J THADANI . PROP SAI BABA IRON STEEL MARBLE CENTRE OPP. SIRAJ ICE FACTORY TURBHE, NAVI MUMBAI PIN:400705 / VS. INCOME TAX OFFICER, WARD - 14 (2)(4) , 3 RD FLOOR, EARNEST HOUSE, NARIMAN POINT, M UMBAI - 400 021 . ./ ./ PAN/GIR NO. AAAPT 7063 Q ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI. SANJAY R. PARIKH / RESPONDENTBY : SHRI. RAJESH OJHA / DATE OF HEARING : 19/10/2016 / DATE OF PRONOUNCEMENT : 17 /01/2017 / O R D E R PER C. N. PRASAD , JM : THIS APPEAL IS FIL ED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 29, MUMBAI DATED 06/12/2015 IN SUSTAINING THE PENALTY LEVIED U/S 271(1)( C ) OF THE ACT F OR THE ASSESSMENT YEAR 2004 - 2005. 2 ITA NO. 2882/MUM/2015 (A.Y: 2004 - 05 ) M/S. NARAYAN J THADANI VS.ITO 2. AT THE OUTSIDE THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE APPEAL FILED BY THE ASSESSEE AGAINST THE DISALLOWANCE OF COMMISSION IN THE QUANTUM PROCEEDINGS HAS BEEN SET ASIDE TO THE FILE OF ASS ESSING OFFICER BY THE COORDINATE BENCH OF THE T RIBUNAL IN ITA NO. 2010/MUM/2012 DATED 16.10.2015 WITH THE DIRECTIONS TO CONSIDER THE ADDITIONAL EVIDENCES FILED BY THE ASSESSE E AND TO DECIDE THE ISSUE S ON MERITS A FRESH. C OPY OF THE ORDER IS PLACED ON RECOR D. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE AND THE LD. DEPARTMENTAL REPRESENTATIVE AND ALSO PERUSED THE ORDER OF THE COORDINATE BENCH IN THE QUANTUM PROCEEDINGS AND FIND THAT THE ISSUE OF DISALLOWANCE MADE BY THE ASSESSING OFFICER IN RESPECT OF COMMISSION PAID HAS BEEN REMANDED TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER ADDITIONAL EVIDENCES WHICH WAS BROUGHT ON RECORD BY THE ASSESSEE DURING THE HEARING BEFORE THE T RIBUNAL AND DECIDE ISSUE AFRESH OBSERVING AS UNDER : - 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND WE ARE OF THE VIEW THAT BEFORE DECIDING THE CASE ON MERITS, IT IS NECESSARY TO DISPOSE OFF THE APPLICATION MOVED BY THE ASSESSEE FOR LEADING THE ADDITI ONAL EVIDENCE. 7. WE HAVE ALSO CONSIDERED THE BACKGROUND OF THE CASE AND NOTICED THAT CONTRADICTORY STATEMENTS BY MRS MEENABEN M. PARIKH AND THOSE CONTRADICTIONS ARE APPARENT FROM THE FACE OF RECORD WHICH HAS NOW BEEN PLACED BY THE ASSESSEE BEFORE US BY WAY OF ADDITIONAL EVIDENCE BEFORE US. 8. AFTER ANALYZING THE ENTIRE FACTS, WE ARE OF THE VIEW THAT ALL THE DOCUMENTS NOW PLACED ON RECORD BY WAY OF ADDITIONAL EVIDENCE ARE OF IMPORTANCE AND WOULD GO TO THE ROOTS OF THE CASE AND WOULD UNABLE THE AO TO DEC IDE THE CONTROVERSY BETWEEN THE PARTIES MORE EFFECTIVELY WHICH WOULD MEET THE ENDS OF JUSTICE. IN CASE THE DOCUMENTS NOW PLACED ON RECORD BY WAY OF ADDITIONAL EVIDENCE ARE CONSIDERED BY THE AO THEN IN THAT EVENTUALITY IT WILL SERVE THE SUBSTANTIAL CAUSE OF JUSTICE AND IN CASE THOSE DOCUMENTS ARE NOT CONSIDERED THAN IN THAT EVENTUALITY THE RIGHTS OF THE ASSESSEE WOULD BE PREJUDICED, WHEREAS ON THE CONTRARY, ON CONSIDERATION OF THE ADDITIONAL EVIDENCE, THE RIGHTS OF THE REVENUE WOULD NOT PREJUDICE, THEREFORE, WE REMAND THE 3 ITA NO. 2882/MUM/2015 (A.Y: 2004 - 05 ) M/S. NARAYAN J THADANI VS.ITO PAPERS TO THE FILE OF THE AO FOR FRESH DECISION ON MERITS AFTER CONSIDERING THE DOCUMENTS BY WAY OF ADDITIONAL EVIDENCE. 4. IN VIEW OF THE COORDINATE BENCH REMANDIN G THE QUANTUM ADDITION/DISALLOWANCE TO THE ASSESSING OFFICER TO DECIDE T HE ISSUE A FRESH , THE PENALTY LEVIED ON THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IN RESPECT OF THE COMMISSION PAID BY THE ASSESSE E WILL NOT STAND AT THIS STAGE. THUS , WE RESTORE THE PEN ALTY PROCEEDINGS TO THE FILE OF THE ASSESSING OFFICER WHO SHALL DECI DE THE SAME AFTER THE QUANTUM PROCEEDINGS IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE . GROUNDS RAISED BY THE ASSESSE ARE ALLOWED FOR S TATISTICAL PURPOSE. 5. IN THE RESULT , THE APPEAL OF ASSESSE E IS ALLOWED FOR S TATISTICAL PURPOSE. ORDER PRONO UNCED IN THE OPEN COURT ON 17 TH JANUARY, 2017. SD/ - SD/ - ( N.K. PRADHAN ) ( C.N . PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DT : 17 TH J ANUARY, 2017 NISHANT VERMA SR. PS COPY : 1. THE APPELLANT 2. HE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REP RESENTATIVE FOR THE REVENUE, J BENCH BY ORDER ASSTT.REGISTRAR, ITAT , MUMBAI BENCHES 4 ITA NO. 2882/MUM/2015 (A.Y: 2004 - 05 ) M/S. NARAYAN J THADANI VS.ITO