WIN CABEL AND DATACOM P.LTD, MUMBAI V. DCIT 9(3), MUMBAI

ITA 2975/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1937 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 07-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V TRIPATHI
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.2975/M/2013 ASSESSMENT YEAR: 2009-10 M/S. WIN CABLE AND DATACOM PVT. LTD., RAHEJAS, 4 TH FLOOR, PLOT NO.8C, CORNER OF MAIN AVENUE AND V.P. ROAD, SANTACRUZ (WEST), MUMBAI 400 054 PAN: AAACW 2239G VS. THE DY. COMMISSIONER OF INCOME TAX 9(3), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESP ONDENT) PRESENT FOR: ASSESSEE BY : SHRI NITESH JOSHI, A.R. REVENUE BY : SHRI V. TRIPATHI, D.R. DATE OF HEARING : 07.10.2015 DATE OF PRONOUNCEMENT : 18.12.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 04.02.2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2009-10. 2. THE SOLE ISSUE RAISED IN THIS APPEAL IS RELATING TO THE ADDITIONS MADE ON ACCOUNT OF NON RECONCILIATION OF RECEIPTS OF SALES WITH THE AIR INFORMATION. THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS T HE AO) MADE THE ADDITION OF RS.99,68,520/- ON THE GROUND THAT AS PER AIR DATA A VAILABLE, THE ASSESSEE COULD NOT RECONCILE THE RECEIPTS OF THE ABOVE AMOUNT. 3. DURING THE APPEAL BEFORE THE LD. CIT(A), THE ASS ESSEE SUBMITTED VARIOUS NEW EVIDENCES ALONG WITH WRITTEN SUBMISSIONS WHICH WERE FORWARDED TO THE ITA NO.2975/M/2013 M/S. WIN CABLE AND DATACOM PVT. LTD. 2 AO AND THE REMAND REPORT WAS CALLED FOR. IN THE RE MAND REPORT, THE AO NOTED THAT THE ASSESSEE COULD NOT RECONCILE THE PAYMENT T O 12 PARTIES. FURTHER, IN RESPECT OF 9 PARTIES, THE AO MENTIONED THAT THERE W AS A DIFFERENCE OF DATES. THE ASSESSEE SUBMITTED THE EXPLANATION IN THIS RESP ECT. AFTER CONSIDERING THE EXPLANATION GIVEN BY THE ASSESSEE, THE LD. CIT(A) C ONFIRMED THE ADDITIONS SO MADE BY THE AO. THE ASSESSEE HAS, THUS, COME IN AP PEAL BEFORE US. 4. THE LD. A.R. OF THE ASSESSEE, BEFORE US, HAS STA TED THAT THE ASSESSEE HAD RECONCILED THE VARIOUS AMOUNTS. SO FAR AS THE DIFF ERENCE OF DATES WAS CONCERNED, THE ASSESSEE HAD SHOWN THE RECEIPTS ON A CCRUAL BASIS IN THE ASSESSMENT YEAR 2008-09 WHEREAS THE OTHER PARTIES H AVE SHOWN THE SAID EXPENDITURE AS ON PAYMENT BASIS IN THE A.Y. 2009- 10. APART FROM THAT, THE ASSESSEE WAS NOT PROVIDED THE COMPLETE INFORMATION REGARDING THE MISMATCH AS TO THE DATE OF RECEIPTS ON THE AIR INFORMATION AND THE NAME OF PARTIES. IT HAS BEEN FURTHER SUBMITTED THAT EVEN THE 12 PARTIES, AS REPORTED BY THE AO, DID NOT COME FORWARD TO GIVE THE CONFIRMATIONS BUT THAT DOE S NOT MEAN THAT THE TRANSACTIONS DID NOT HAPPEN WITH THEM. IT WAS NOT IN THE HANDS OF THE ASSESSEE TO SUMMON THOSE PARTIES. THE AO SHOULD HAVE EXERCI SED HIS POWERS TO SUMMON OR CALL FOR INFORMATION FROM THE SAID PARTIE S BY EXERCISING HIS POWERS UNDER SECTION 133(6) OF THE ACT. 5. CONSIDERING THE ABOVE SUBMISSIONS OF THE ASSESSE E, WE FIND THAT THE ISSUE REQUIRES REEXAMINATION AT THE HANDS OF AO. W E THEREFORE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO THE FILE O F THE AO FOR A FRESH DECISION. THE AO WILL GIVE COMPLETE AIR INFORMATIO N TO THE ASSESSEE REGARDING THE RECEIPTS AND THE ASSESSEE WOULD ALSO PROVIDE THE NAME, PAN NUMBER AND FULL ADDRESS OF THE 12 PARTIES REGARDING WHICH HE COULD NOT FURNISH THE CONFIRMATION AND THEREAFTER THE AO WILL CALL FO R THE NECESSARY INFORMATION, CONFIRMATION, LEDGER ACCOUNTS ETC. FROM THE SAID PA RTIES EXERCISING HIS JURISDICTION UNDER SECTION 133(6) OF THE ACT OR AS HE MAY DEEM FIT IN THIS RESPECT. THE AO WILL ALSO EXAMINE THE MISMATCH OF DATES AND THE CONTENTION ITA NO.2975/M/2013 M/S. WIN CABLE AND DATACOM PVT. LTD. 3 OF THE ASSESSEE THAT THE PART OF THE AMOUNT IN QUES TION HAS ALREADY BEEN REFLECTED IN THE RETURN OF INCOME FOR A.Y. 2008-09. NEEDLESS TO SAY THAT THE AO WILL GIVE PROPER OPPORTUNITY OF HEARING TO THE A SSESSEE. 6. WITH THE ABOVE OBSERVATIONS, THE APPEAL OF THE A SSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18.12.2015. SD/- SD/- (N.K. BILLAIYA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 18.12.2015. * 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.