BALAKUMAR VETHAGIRI, MUMBAI V. DCIT 22(2), NAVI MUMBAI

ITA 3055/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4027 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 22-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N P SINGH
• Assessee Lawyers: VENUGOPAL NAIR
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice
• Section: 69C; 80C; 133A; 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN, AM AND PAWAN SINGH, JM ./ I.T.A. NO . 3055 / MUM/ 201 3 ( / ASSESSMENT YEA R S : 200 9 - 10 ) BALAKUMAR VETHAGIRI, B - 48, GURUDEV APARTMENT, OPP, CHEMBUR TELEPHONE EXGN., CHEMBUR NAKA, CHEMBUR, MUMBAI - 400071 / VS. DY. COMMISSIONER OF INCOME TAX - 22 (2) , 4TH FLOOR, TOWER NO.6 VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI - 400703 ( / APPELLA NT ) .. ( / RESPONDENT ) ./ I.T.A. NO . 4163 / MUM/ 201 3 ( / ASSESSMENT YEA R: 2009 - 10 ) DY. COMMISSIONER OF INCOME TAX - 22 (2) , 4TH FLOOR, TOWER NO.6 VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI - 400703 / VS. BA LAKUMAR VETHAGIRI, B - 48, GURUDEV APARTMENT, OPP, CHEMBUR TELEPHONE EXGN., CHEMBUR NAKA, CHEMBUR, MUMBAI - 400071 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AADPG2683A / A SSESSEE BY SHRI VENUGOPAL NAIR / RESPONDENT BY SHRI N P SINGH / DATE OF HEARING : 2 .2 .2016 / DATE OF PRONOUNCEMENT: 2 . 2. 201 6 3055 /M/201 3 AND 4163/M/2013 2 / O R D E R P ER B R BASKARAN, AM : THESE CROSS - APPEALS ARE DIRECTED AGAINST THE ORDER DATED 25.3.2013 PASSED BY THE LD.CIT(A) - 33, MUMBAI AND THEY RELATE TO THE ASSESSMENT YEARS 2009 - 10. 2. AT THE TIME OF HEARING, THE LD. AR DID NOT PRESS GROUNDS NO.1 AND 2 AND ALSO THE ADDITION OF RS. 15,97,713/ - CONFIRMED BY THE LD. CIT(A), WHICH IS STATED IN GROUND NO.3. ACCORDINGLY , THESE GROUNDS ARE DISMISSED AS NOT PRESSED. THE REMAINING GROUNDS GIVE RISE TO THE FOLLOWING ISSUES: A ) DISALLOWANCE OF DEPRECIATION OF RS.1,26,833/ - ; B ) ADDITION MADE UNDER S ECTION 68 OF THE ACT AMOUNTING TO RS.15.89 CRORES; C ) ADDITION MADE U/S 69A OF RS. 1.87 CRORES; D ) ADDITION MADE U/S 69C OF THE ACT OF RS.2,45,000/ - ; E ) ADDITION RELATING TO THE UNDISCLOSED INCOME RS.42.74 LAKHS AND ; F ) REJECTION OF CLAIM FOR DEDUCTION 80C OF T HE ACT. 3. THE REVENUE IS IN APPEAL ON THE FOLLOWING ISSUES : A ) RELIEF GRANTED AGAINST THE ADDITION MADE U/S 68 OF THE ACT VIZ.,RS.27,40,000/, RS.81,14,31 6 AND RS.25,00,000/ - . B ) RELIEF GRANTED AGAINST THE ADDITION MADE U/S 69C OF THE ACT VIZ.,RS.12,20,850 / - , RS.1,20,000/ - AND RS.2,21,500/ - ; C ) THE RELIEF GRANTED IN RESPECT OF UNDISCLOSED RECEIPTS AMOUNTING TO RS.30,00,000/ - . 4. AT THE TIME OF HEARING, THE LD.DR SUBMITTED THAT THE AO COMPLETED THE ASSESSMENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD , SINC E THE AS SESSEE DID NOT FULLY CO - OPERATE WITH THE AO IN FURNISHING THE RELEVANT DETAILS CALLED FOR BY HIM. EVEN THOUGH, THE LD. CIT(A) HAS CONFIRMED MAJOR PART OF THE ADDITIONS MADE BY THE AO , YET THE LD.CIT(A) ALSO DID NOT FULLY EXAMINED THE MATERIAL S IMP OUNDED FROM THE ASSESSEE DURING THE COURSE OF SURVEY OPERATIONS CONDUCTED UNDER SECTION 133A OF THE ACT. THE LD. DR ACCORDINGLY SUBMITTED THAT , IN THE FITNESS OF MATTER AND IN THE INTEREST OF 3055 /M/201 3 AND 4163/M/2013 3 NATURAL JUSTICE, ALL THE ISSUES THAT ARE BEING CONTESTED BY BOT H THE PARTIES MAY BE SET ASIDE TO THE FILE OF THE AO IN ORDER TO ENABLE HIM TO TAKE A JUDICIOUS VIEW OF THE MATTERS BY CONSIDERING THE MATERIALS IMPOUNDED DURING THE COURSE OF SURVEY OPERATION AND PROVIDING NECESSARY OPPORTUNITY TO THE ASSESSEE . 5. THE LD . AR ALSO AGREE D TO THE PROPOSAL PUT FORTH BY THE LD.DR . 6. HAVING REGARD TO THE RIVAL SUBMISSIONS, WE FIND MERIT IN THE SUBMISSIONS MADE BY THE LD. DR. THE CAUSE OF JUSTICE SHALL BE PROMOTED IF THE MATERIALS IMPOUNDED DURING THE COURSE OF SURVEY WERE PR OPERLY CONFRONTED TO THE ASSESSEE. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTERS THAT ARE BEING CON TE STED BY BOTH THE PARTIES BEFORE US TO THE FILE OF THE AO WITH A DIRECTION TO EXAMINE THE M AFRESH BY DULY CONSIDERING THE MATERIAL S IMPOUNDED DURING THE COURSE OF SURVEY OPERATION AND ALSO BY PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO EXTEND FULL CO - OPERATION TO THE AO BY FURNISHING ALL THE DETAILS THAT MAY BE CALLED FOR B Y THE AO FOR EXPEDITIOUS COMPLETION OF THE ASSESSMENT. 7 . IN THE RESULT, BOTH THE APPEALS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 2ND FEB , 2 01 6 . 2 ND FEB, 2 01 6 SD SD ( PAWAN SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 2 ND FEB , 2 01 6 . . . ./ SRL , SR. PS 3055 /M/201 3 AND 4163/M/2013 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI