BHARAT S. SHAH, MUMBAI V. ITO 15(2)(2), MUMBAI

ITA 2937/MUM/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1728 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 21-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Assessee Lawyers: MUKUND JALGAOKAR
• Keywords: Opportunity of being heard
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO.2937/MUM/2016 (ASSESSMENT YEAR 2010-11) BHARAT S. SHAH (PROPRIETOR OF M/S. STATUS), 54/55,BHARAT BUILDING NO.3, ZAKARIA BUNDER ROAD, COTTON GREEN, MUMBAI 400033 PAN: AYCPS9994D ...... APPELLA NT VS. THE INCOME TAX OFFICER 15(2)(2), MUMBAI .... R ESPONDENT APPELLANT BY : SHRI MUKUND JALGAOK AR RESPONDENT BY : MS. BEENA SANTOSH DATE OF HEARING : 06/12/2016 DATE OF PRONOUNCEMENT : 09/12/2016 ORDER THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERT AINING TO ASSESSMENT YEAR 2010-11 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-32, MUMBAI DATED 08/01/2016, WHICH IN TURN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX A CT, 1961 (IN SHORT THE ACT) DATED 23/03/2013. 2. IN THIS APPEAL, THOUGH THE ASSESSEE HAS RAISED MULTIPLE GROUNDS OF APPEAL, BUT THE GRIEVANCE REVOLVES AROUND THE INC OME ASSESSED BY THE ASSESSING OFFICER AT RS.20,08,030/- AS AGAINST THE RETURNED INCOME OF RS.6,04,831/- AFTER MAKING VARIOUS ADDITIONS/DISAL LOWANCES. 2 ITA NO.2937/MUM/2016 (ASSESSMENT YEAR 2010-11) 3. AT THE TIME OF HEARING, LD. REPRESENTATIVE FOR T HE ASSESSEE POINTED OUT THAT THE PRIMARY REASON WEIGHING WITH THE ASSESSING OFFICER TO MAKE THE ADDITION WAS THE INABILITY OF THE ASSESSEE TO PRODU CE BOOKS OF ACCOUNT AND OTHER VOUCHERS, ETC. THE LD. REPRESENTATIVE FOR TH E ASSESSEE POINTED OUT THAT AT THE TIME OF ASSESSMENT PROCEEDINGS ASSESSEE HAD EXPLAINED THAT THE CONCERN RESPONSIBLE FOR WRITING AND MAINTENANCE OF BOOKS OF ACCOUNT FOR THE ASSESSEE WAS IN DISPUTE WITH THE ASSESSEE AND, THER EFORE, THEY WERE UNWILLING TO HAND OVER THE DOCUMENTS SO AS TO PRESENT THEM B EFORE THE ASSESSING OFFICER. HOWEVER, AT THE STAGE OF APPEAL BEFORE TH E CIT(A), ASSESSEE HAD ASSERTED THAT THE ASSESSEE HAD RECOVERED HIS BOOKS OF ACCOUNT FROM HIS BOOK KEEPER AND WAS IN A POSITION TO PRODUCE THE SAME. IN SPITE OF THE SAME, THE CIT(A) HAS NOT ALLOWED APPROPRIATE RELIEF AND HAS N EITHER GIVEN REGARD TO THE ABILITY OF THE ASSESSEE TO PRODUCE THE BOOKS OF ACC OUNT. UNDER THESE CIRCUMSTANCES, THE PRELIMINARY PLEA RAISED IS TO T HE EFFECT THAT THE MATTER BE REMANDED BACK TO THE FILE OF ASSESSING OFFICER FOR AN ASSESSMENT AFRESH, SINCE ASSESSEE WAS IN A POSITION TO FURNISH THE RELEVANT BOOKS OF ACCOUNT AND OTHER DOCUMENTS. 4. THE LD. DEPARTMENTAL REPRESENTATIVE HAD NO OBJE CTION TO THE AFORESAID PRELIMINARY PLEA RAISED ON BEHALF OF THE ASSESSEE. 5. CONSIDERING THE SUBMISSIONS PUT-FORTH BY THE ASS ESSEE, I DEEM IT FIT AND PROPER TO SET-ASIDE THE ORDER OF THE CIT(A) AND RES TORE THE MATTER FOR A DENOVO ASSESSMENT BY THE ASSESSING OFFICER, WHO SHALL ALLO W THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD BEFORE PASSING AN ORDER AFRESH IN ACCORDANCE WITH LAW. 3 ITA NO.2937/MUM/2016 (ASSESSMENT YEAR 2010-11) IN THE RESULT, WITHOUT GOING INTO THE MERITS OF VAR IOUS POINTS RAISED, THE APPEAL IS DISPOSED OFF ON THE PRELIMINARY ISSUE AS ABOVE. 6. RESULTANTLY, APPEAL OF THE ASSESSEE IS ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 09/12/2016 SD/- (G.S.PANNU) ACCOCUNTANT MEMBER MUMBAI, DATED 09/12/2016 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI