ITO 17(3)(3), MUMBAI V. MOHMAD AKHTAR SHAIKH, MUMBAI

ITA 3110/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78744 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-04-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 07-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIM K MODI
• Assessee Lawyers: DHIREN P SHROFF
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI . . , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO. 3110/MUM/2012 ( / ASSESSMENT YEAR: 2008-09) THE ITO 17(3)(3), 613, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400 012 / VS. MOHMAD AKHTAR SHAIKH 222-C, PRABHATWADI COMPOUND, BELASIS ROAD, NAGPADA, MUMBAI-400 008 ./ ./PAN/GIR NO. AIWPS 3261 K ( /APPELLANT ) : ( !' / RESPONDENT ) # $ / APPELLANT BY : SHRI ASHIM K. MODI !' # $ / RESPONDENT BY : SHRI DHIREN P. SHROFF % &'( # )* / DATE OF HEARING : 21.04.2014 +,- # )* / DATE OF PRONOUNCEMENT : 21.04.2014 . / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE REVENUE DIRECTED AGAINST T HE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-29, MUMBAI (CIT(A) FOR SH ORT) DATED 29.02.2012, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSES SMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMEN T YEAR (A.Y.) 2008-09 VIDE ORDER DATED 27.12.2010. 2. THE ONLY ISSUE ARISING IN THE INSTANT APPEAL IS THE MAINTAINABILITY IN LAW OF THE DELETION OF THE ADDITION BY THE LD. CIT(A) OF THE I MPUGNED SUM OF RS.42,38,445/-, 2 ITA NO. 3110/MUM/2012 (A.Y. 2008-09) ITO VS. MOHMAD AKHTAR SHAIKH REPRESENTING CREDITS ON ACCOUNT OF PURCHASES DURING THE YEAR (RS.40,14,332/-) AND LIABILITIES OTHERWISE REFLECTED IN ACCOUNTS AS CARR IED OVER FROM AN EARLIER YEAR (RS.12,26,088/-). THE ASSESSING OFFICER (A.O.) PROC EEDED TO VERIFY THE SAME BY POSTING NOTICES U/S.133(6) OF THE ACT TO THE CREDITORS. THE SAME CAME BACK UN-SERVED ON THE PURCHASE CREDITORS, WHILE THERE WERE DIFFERENCES IN THE AMOUNTS AS CONFIRMED BY THE OTHER PARTIES, AS IT APPEARS, AT RS.2,24,113/-. ACCORDING LY, THE ENTIRE UNCONFIRMED CREDIT WAS ADDED AS THE ASSESSEES INCOME FOR THE CURRENT YEAR U/S.68, TREATING IT AS UNEXPLAINED. THE ASSESSEE FURNISHING ADDITIONAL EVIDENCE/S BEFORE TH E LD. CIT(A), HE ADMITTED THE SAME AND, BEING SATISFIED, DELETED THE ADDITION. AGGRIEV ED, THE REVENUE IS IN APPEAL. 3. THE REVENUES GRIEVANCE, AS PROJECTED PER ITS GR OUNDS OF APPEAL, AND EVEN AS ARGUED BEFORE US, IS PRIMARILY IN TERMS OF NON-OBSE RVING THE PROCEDURE SPECIFIED UNDER RULE 46A OF THE INCOME TAX RULES, 1962 BY THE FIRST APPELLATE AUTHORITY. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE LD. CIT(A) HAS NOT RECORDED ANY REASON, AS IS REQUIRED TO UNDER RU LE 46A(1), FOR ADMISSION OF THE ADDITIONAL EVIDENCE/S. EVEN SO, ASSUMING THE ASSESS EE BEING PREVENTED FROM PRODUCING THE SAME ON ACCOUNT OF PAUCITY OF TIME ALLOWED FOR THE PURPOSE, AS EXPLAINED BY THE LD. AUTHORIZED REPRESENTATIVE (AR) BEFORE US, HE OUGHT TO HAVE ALLOWED REASONABLE OPPORTUNITY TO THE A.O. TO EXAMINE AS WELL AS MEET THE SAME, I.E., IN CASE HE DESIRED TO, DULY CONSIDERING HIS OBSERVATIONS, IF ANY, THERE-UP ON (R.46A(3)). THE REVENUES GRIEVANCE IS, THUS, JUSTIFIED. UNDER THE CIRCUMSTANCES, WE THEREFORE ONLY CONSIDER IT FIT AND PROPER, BOTH LEGALLY AS WELL AS IN THE INTEREST OF JUSTICE AND FAIRNESS, THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE A.O. FOR A DECISION IN ACCORDANCE WITH LAW A FTER ALLOWING PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE BEFORE HIM, AND WHICH HE SHALL PER A SPEAKING ORDER, ISSUING DEFINITE FINDINGS OF FACT IN-AS-MUCH AS WE DISCERN THE MATTER TO BE ESSENTIALLY FACTUAL. WE DECIDE ACCORDINGLY. 3 ITA NO. 3110/MUM/2012 (A.Y. 2008-09) ITO VS. MOHMAD AKHTAR SHAIKH 5. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED O N THE AFORESAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 21, 201 4 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER % ( MUMBAI; /& DATED : 21.04.2014 '.&../ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. % 0) ( ) / THE CIT(A) 4. % 0) / CIT - CONCERNED 5. 3'45 !)&67 , * 67- , % ( / DR, ITAT, MUMBAI 6. 589 :( / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , % ( / ITAT, MUMBAI