RAMESH B BUSWALLA, MUMBAI V. ITO 19(3)(2), MUMBAI

ITA 2964/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2496 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 23-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 30-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS JADHAV
• Keywords: Period of limitation; Time period of passing order
• Section: 234B; 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.2964/M/2014 ASSESSMENT YEAR: 2009-10 SHRI RAMESH B. BUSWALLA, PLOT NO.3, KHERWADI FIRST ROAD, KHERWADI, BANDRA (EAST), MUMBAI - 400051 PAN: AAAPB9537H VS. ITO, 19(3)(2), MUMBAI. (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI VIMAL PUNMIYA, A.R. REVENUE BY : SHRI VISHWAS JADHAV, D.R. DATE OF HEARING : 23.11.2015 DATE OF PRONOUNCEMENT : 23.11.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 26.02.2014 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2009-10. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1) THE LD. CIT(A) ERRED IN CONFIRMING DISALLOWANCE OF 10% OF THE TOTAL EXPENDITURE OF RS. 56,56,100/- I.E. RS. 5,65,610/- INCURRED IN LABOUR CHARGES AND SITE EXPENSES. 2) THE LD. CIT(A) HAS ERRED IN CONFIRMING DISALLOWA NCE OF RS. 29,253/- I.E. 10% OF THE EXPENSES ON ADHOC BASIS U/S 37(1) O F THE I.T. ACT, 1961. 3) THE LD. CIT(A) HAS WRONGLY CONFIRMED EXCESS DISA LLOWANCE OF RS. 1,92,370/-. 4) THE LD. CIT(A) ERRED IN PASSING THE EX-PARTE ORD ER WITHOUT REFUSING ITA NO.2964/M/2014 SHRI RAMESH B. BUSWALLA 2 THE LETTER OF ADJOURNMENT FILED BY THE ASSESSEE REP RESENTATIVE. 5) THE LEARNED ASSESSING OFFICER HAS ERRED IN CHARG ING INTEREST U/S 234B AND 234C OF THE INCOME TAX ACT, 1961. 6) THE LEARNED ASSESSING OFFICER HAS ERRED IN INVOK ING AND INITIATING THE PROVISIONS OF SECTION 271(1)(C ) OF THE INCOME TAX ACT, 1961. 7) THE ASSESSEE CRAVES LEAVE TO ADD FURTHER GROUNDS OR TO AMEND OR ALTER THE EXISTING GROUNDS OF APPEAL ON OR BEFOR E THE DATE OF HEARING. 2. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS STATED THAT THE ORDER OF THE LD. CIT(A) IS AN EX-PARTE ORDER. HE HAS SUBMITTED THAT THE ASSESSEE IS AN ILLITERATE PERSON AND IS NOT FAMILIAR TO INCOME TAX PROCEEDINGS. IT HAS BEEN THE FIRST YEAR WHEN THE ASSESSEES CASE HAS BEEN SELECT ED INTO SCRUTINY ASSESSMENT. THE ASSESSEE HAD FILED THE APPEAL BEFORE THE LD. CI T(A) WITHIN THE LIMITATION PERIOD. HOWEVER, DUE TO CERTAIN REASONS, THE ASSES SEE COULD NOT FILE THE REQUIRED DETAILS BEFORE THE LD. CIT(A) AND SOUGHT A DJOURNMENT FOR FURNISHING THE SAME. HOWEVER, THE LD. CIT(A) REJECTED THE ADJ OURNMENT APPLICATION AND DECIDED THE MATTER ON MERITS WITHOUT GIVING PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE. THE LD. A.R., WHILE INVITING OUR ATTENTION TO GROUND NO.2 OF THE APPEAL HAS SUBMITTED THAT THE DISALLOWANCE O F RS.1,92,370/- HAS BEEN MADE IN EXCESS BY THE ASSESSING OFFICER (HEREINAFTE R REFERRED TO AS THE AO). HE HAS FURTHER INVITED OUR ATTENTION TO PAGE 10 WHI CH IS THE COPY OF THE PROFIT & LOSS ACCOUNT FOR THE RELEVANT YEAR WHEREIN THE TO TAL SITE EXPENSES HAVE BEEN CLAIMED AT RS.1,73,505/-. HOWEVER, THE AO, WHILE M AKING THE DISALLOWANCE, HAS NOTED THE TOTAL SITE EXPENSES AT RS.20,97,200/- . HE HAS FURTHER STATED THAT THE AO WRONGLY MADE THE DISALLOWANCE ON ADHOC BASIS AT 10%. 3. THE LD. CIT(A) WITHOUT GOING INTO THESE DETAILS HAS PASSED AN EX-PARTE ORDER. ITA NO.2964/M/2014 SHRI RAMESH B. BUSWALLA 3 4. UNDER SUCH CIRCUMSTANCES, WE FEEL THAT THE MATTE R NEEDS RECONSIDERATION AT THE LEVEL OF THE LD. CIT(A). WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER BACK TO THE LD. CIT(A) FOR DECID ING THE APPEAL OF THE ASSESSEE ON MERITS AFRESH AFTER GIVING THE ASSESSEE A PROPER OPPORTUNITY TO PRESENT HIS CASE. NEEDLESS TO SAY, THE LD. CIT(A), IF SO DEEMS FIT, MAY CALL FOR A REMAND REPORT FROM THE AO IN RESPECT OF THE EXCES S/WRONG DISALLOWANCE OF EXPENSES, IF ANY, AS DISCUSSED ABOVE. THE ASSESSEE IS ALSO DIRECTED TO PROMPTLY FILE THE NECESSARY DETAILS AND EVIDENCES BEFORE THE LD. CIT(A) UPON WHICH HE WANTS TO RELY UPON. 5. WITH THE ABOVE OBSERVATIONS, THE APPEAL OF THE A SSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23.11.2015. SD/- SD/- (ASHWANI TANEJA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 23.11.2015. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.