AAKAR ENTERPRISES, MUMBAI V. ITO 25(1)(3), MUMBAI

ITA 3044/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1379 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 22-02-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 19-04-2013
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: GAURANG UNAD KOT
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI DT GARASIA, JM AND SHRI MANOJ KUMAR AGG AR WAL, AM I.T.A. NO. 3044/MUM/2013 ASSESSMENT YEAR: 2007 - 08 AAKAR ENTERPRISES A - 11, ALKA, 1 ST FLOOR, DADABHAI RAOD, NEXT TO FLYOVER, NEAR CNMS SCHOOL, VILE PARLE(W) MUMBAI VS. ITO 25(1)(3) MUMBAI PAN: AA GCA5402R (APPELLANT) : (RESPONDENT) APPELLANT BY : SHRI GAURANG UNAD KOT RESPONDENT BY : SHRI RAJESH KUMAR YADAV DATE OF HEARING : 14 /03/2017 DATE OF PRONOUNCEMENT : 07 /04 /2017 O R D E R PER D. T. GARASIA, JM: THIS APPEAL IS FILED BY THE ASSESSE E AGAINST THE ORDER OF CIT(A) - 35 MUMBAI, DATED 23/01/2013 ARISING OUT OF ORDER OF ITO 25(1)(3), MUMBAI DATED 29/12/2009 PASSED U/S 143(3) OF THE INCOME TAX ACT, 1 961 FOR THE ASSESSMENT YEAR 2007 - 08 . 2 AAKAR ENTERPRISES ITA NO. 3044/M/2013 2. THE FOLLOWING GROUNDS ARE RAISED IN THIS APPEAL ARE AS UNDER: - 1. ADDITIONS U/S 68 AT RS.66,45,000/ - . 2. ADDITIONS OF INTEREST DISALLOWANCES AT RS.1,79,400/ - 3. ADDITIONS OF INTEREST U/S 40A(IA) AT RS.18,60,404/ - . 4. ADDITIONS OF INTEREST PAID TO DAYARAM AT RS.65,753/ - . 5. ADDITIONS OF BROKERAGE U/S 40A(IA) AT RS.22,993/ - . 6. ADDITIONS OF COMPENSATION PAID TO TENANT AT RS.81,50,000/ - . 3. THE SHORT FACTS OF THE CASE ARE AS UND ER: - THE ASSESSEE IS A PARTNERSHIP FIRM. THE ASSESSEE HAS FILED THE APPEAL BEFORE CIT(A) AND CIT(A) DISMISSED THE APPEAL, THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE US. 4. DURING THE COURSE OF HEARING , THE LD. AR SUBMITTED THAT THE A.O. AS WELL AS CIT(A) HAS DECIDED THE APPEAL WITHOUT CONSIDERING THE EVIDENCE WHICH WAS FILED BEFORE THE AO AND CIT(A) LIKE LEDGER ACCOUNT, LOAN CONFIRMATION LETTER, BANK STATEMENT, INCOME TAX RETURN ACKNOWLEDGEMENT AND CONFIRMATION ACCOUNT IN SUPPORT OF DILI P SWADI HUF. SIMILARLY , IN THE CASE OF KAN JI PITAMBER, DAYARAM DHARMASHI, THE AO AND CIT(A) HAS NOT CONSIDERED ALL THE CONFIRMATION COPY OF PAN CARD INCOME - TAX RETURN AND THE MATTER WAS DECIDED WITHOUT CONSIDERING ALL THESE EVIDENCES. THE CIT(A) HAS ALSO N OT CONSIDERED ALL DOCUMENTARY EVIDENCE. THEREFORE, IN THE INTEREST OF JUSTICE THIS MATTER MAY BE RESTORED TO THE AO. 5. ON THE OTHER HAND THE LD. DR SUBMITTED THAT THE ASSESSEE DID REMAIN PRESENT BEFORE CIT(A) AND EXPLAIN THE CASE, THEREAFTER, THE ASSESSE E, THE LD. COUNSEL DID NOT REMAIN PRESENT. THEREFORE, THE MATTER CANNOT BE RESTORED TO THE AO OR CIT(A) AND ORDER MAY BE CONFIRMED. 3 AAKAR ENTERPRISES ITA NO. 3044/M/2013 6. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS DRAWN OUR ATTENTION TO THE PAPER BOOK WHEREIN THE ASSESSEE SPECIFICALLY DRAWN OUR ATTENTION ON PAGE NO . 19, PAGE NO. 38 OF PAPER BOOK, IN WHICH IT IS SPECIFICALLY SUBMITTED ALL THE DOCUMENTS WERE BEFORE THE AO AND THOUGH ALL THE DOCUMEN TS WERE SUBMITTED BEFORE THE AO, T HE ASSESSING OFFICER HAS NOT CONSIDERED THIS EVIDENCE. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY WE RESTORE THE MATTER TO THE AO. THE AO IS DIRECTED TO DECIDE ALL THE ISSUES ON MERIT AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO CO - OPERATE THE DEPARTMENT AND THE AO IS DIRECTED T O DECIDE THE MATTER AS PER LAW. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. JUDGMENT PRONOUNCED IN THE OPEN COURT ON 7 TH APRI L 2017 . SD/ - SD/ - (MANOJKUMAR AGGARWAL ) ACCOUNTANT MEMBER (D.T.GARASIA) JUDICIAL MEMBER MUMBAI, DATE: 07 /04 / 2017 *RAHUL SHARMA* COPY TO: 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI