SANKET FOOD PRODUCTS PVT.LTD., JALNA V. ASST.C.I.T. CENTRAL CIRCLE 11, MUMBAI

ITA 2951/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2275 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 07-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E: MUMBAI BEFORE SHRI P.M. JAGTAP (AM) AND SHRI R.S. PADVEKAR (JM ) ITA NO. 2951/MUM/2009 (ASSTT. YEAR : 2005-06) SANKET FOOD PRODUCTS PVT. LTD. APPELLANT A-9/26 ADDITIONAL M.I.D.C. AREA, AURANGABAD ROAD, JALNA 431 203 PAN : AAECS 0131 P V/S. ASST. COMMISSIONER OF INCOME TAX RESPONDENT CENTRAL CIRCLE 11, MUMBAI APPELLANT BY :MR. DHARMESH SHAH RESPONDENT BY :MR. NAVEEN GUPTA : O R D E R : PER R.S. PADVEKAR, J.M IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IMP UGNED ORDER OF THE LD CIT(A)- CENTRAL III, MUMBAI DATED 23.2.2009 FOR THE A.Y. 2005-06. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APPEAL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN DECIDING THE APPEAL EXPARTE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE D IRECTOR IN CHARGE DID NOT RECEIVE ANY NOTICE OF HEARING OF APPEAL FOR THE REASONS THAT MOST OF THE EMPLOYEES HAVE LEFT THE COMPANY AND PREMISES WAS CLOSED AT THE RELEVANT TIME. WITHOUT PREJUDICE TO THE ABOVE THE APPELLANT RAISED THE FOLLOWING GROUNDS : ITA NO. 2951/MUM/2009 2 3A. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 11,4 0,061/- ON ACCOUNT OF ALLEGED EXCESS WASTAGE OF RAW MATERIAL. 3B. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) FAILED TO APPRECIATE THE FACT THAT SIMILA R ADDITIONS ON ACCOUNT OF WASTAGE OF RAW MATERIAL WERE MADE IN A.Y. 2004-0 5 BUT THE LD.CIT(A) HAS DELETED THE ADDITIONS. 4A. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 12,45,231/- ON ACCOUNT OF ALLEGED EXCESS CONSUMPTION OF PACKING M ATERIALS. 4B. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN NOT COMPARING THE CONSUMPTION OF PACKING MATERIALS FOR A.Y. 2004-05 WHERE THE PRODUCTS MANUFACTURE ARE SIMILAR AND CONSUMPTION OF PACKING MATERIAL @ 30.8% HAVE BEEN A CCEPTED BY THE LD. A.O. HIMSELF. 5A. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 7 ,31,906/- ON ACCOUNT OF DIFFERENCE BETWEEN THE ACCOUNTS FURNISHED BY THE PARTIES IN RESPONSE TO NOTICE U/S. 133(6) ISSUED TO THEM AND OUTSTANDIN G AMOUNT SHOWN BY ASSESSEE. 5B. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. A.O. AND CIT(A) ERRED IN NOT GIVING PROPER OPPORTUN ITY TO THE ASSESSEE TO RECONCILE THE ACCOUNTS BY FURNISHING A COPY OF A CCOUNTS RECEIVED BY THE A.O. IN RESPONSE TO THE PROCEEDINGS U/S. 133(6) . 3. WE HAVE HEARD THE PARTIES. THE ASSESSEE IS A MA NUFACTURER OF SCENTED SUPARI, ZERDA, SUPARI MIX ETC., THE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 2005-06 DECLARING THE TOTAL LOSS OF RS. 2,40,4 6,313/-. THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS FRAMED U/S. 143(3) OF THE ACT. THE A.O. MADE THE DISALLOWANCE TO THE EXT ENT OF RS. 31,17,198/-, ITA NO. 2951/MUM/2009 3 WHICH WAS IN RESPECT OF CLAIM OF WASTAGE, PACKING MATERIAL AND ALSO ADDITION FOR DISCREPANCY IN THE BALANCES. THE ASSESSEE CHAL LENGED THE ADDITIONS BEFORE THE LD CIT(A). THE LD CIT(A) DECIDED THE APPEAL OF THE ASSESSEE EX-PARTE VIDE HIS ORDER DT. 23.1.2008 AS THE ASSESSEE DID NO T APPEAR ON THE DATE OF HEARING. IN OUR OPINION, THE LD CIT(A) COULD HAVE GIVEN ONE MORE OPPORTUNITY TO THE ASSESSEE. WE, THEREFORE, CONSIDER IT FIT TO RESTORE THIS MATTER TO THE FILE OF THE LD CIT(A) FOR DECIDING ALL THE ISSUES ON ME RIT, AFTER GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE BY PROPER SERVICE OF NO TICE OF HEARING. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH THE LD CIT(A) FOR DISPOSAL OF THE APPEAL. THE ASSESSEE IS ALSO DIRECTED TO FILE HIS ADDRESS FOR THE SERVICE OF THE NOTICE IN THE OFFICE OF THE LD. CIT(A), IF THERE IS CHANGE IN THE SAME WITHIN TWO WEEKS FROM THE DATE OF RECEIPT OF THIS ORDER. ACCO RDINGLY, THE ORDER OF THE LD CIT(A) IS SET ASIDE. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 8TH DAY OF A PRIL, 2010. SD/- SD/- (P.M. JAGTAP) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, ON THIS 8TH DAY OF APRIL, 2010. :US COPY TO: 1. APPELLANT 2. RESPONDENT , 3.THE CIT(A)- CENTRAL III, MUMBAI 4.THE CIT CENTRAL-I, MUMBAI 5.THE DR, E BENCH, MUMBAI 6.GUARD FILE BY ORDER TRUE COPY ASSTT..REGISTRAR, ITAT, MUMBAI. ITA NO. 2951/MUM/2009 4 US DATE INITIALS 1. DRAFT DICTATED ON 31/3/10 --------------- SR.P.S . 2. DRAFT PLACED BEFORE AUTHORITY 01/4/10 -------- ------ SR.P.S. 3. DRAFT PROPOSED & PLACED ----------- ---------- --- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED ----------- ----------- -- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO ----------- ------------ - SR.P.S. THE SR. P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON --------- ----------- -- SR.P.S. 7. FILE SENT TO THE BENCH CLERK --------- --------- ---- SR.P.S. 8. DATE ON WHICH FILE GOES TO THE ------- --------- ---- 9. DATE OF DISPATCH OF ORDER --------- --------- ----