WHISTLING WOODS INTERNATIONAL LTD, MUMBAI V. ITO 9(3)(4), MUMBAI

ITA 3115/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3784 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 11-05-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 23-04-2013
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI
• Keywords: Additional evidence

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NOS.3115 & 2348/MUM/2013 ASSESSMENT YEARS-2004-05 AND 2005-06 M/S WHISTLING WOODS INTERNATIONAL LTD. FILM CITY COMPLEX, GOREGAON (E) MUMBAI-400065 / VS. ITO - 9(3)(4), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 PA N NO. AAACW4307R ( /ASSESSEE) ( / REVENUE) / ASSESSEE BY SHRI RAHUL HAKANI / REVENUE BY SHRI S.K. BEPARI -DR ! / DATE OF HEARING : 11/05/2016 ! / DATE OF ORDER: 16/05/2016 ITA NO.3115 & 2348/MUM/2013 M/S WHISTLING WOODS INTERNATIONAL LTD. 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) BOTH THESE APPEALS FOR ASSESSMENT YEAR 2004-05 AND 2005-06 RESPECTIVELY ARE BY THE ASSESSEE, AGGRIEVED BY THE IMPUGNED ORDERS DATED 06/12/2012 AND 04/02/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI. 2. FIRST, WE SHALL TAKE UP THE APPEAL FOR ASSESSME NT YEAR 2005-06 (ITA NO.2348/MUM/2013). DURING HEARING , THE LD. COUNSEL FOR THE ASSESSEE, SHRI RAHUL HAKANI , CONTENDED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS NOT ADJUDICATED GROUND NO.3, THOUGH RA ISED BEFORE HIM. THE ASSESSEE HAS ALSO FILED ADDITIONAL EVIDENCE FOR ADMISSION. THE LD. DR, SHRI S.K. BEPARI, STRON GLY OBJECTED THE ADMISSION OF ADDITIONAL EVIDENCE AS TH E SAME WAS VERY MUCH AVAILABLE WITH THE ASSESSEE DURING ASSESSMENT STAGE AS WELL AS FIRST APPELLATE STAGE A ND WAS DELIBERATELY NOT PRODUCED BEFORE THE AUTHORITIES. ON QUESTIONING FROM THE BENCH WITH RESPECT TO AVAILABI LITY OF THE ADDITIONAL EVIDENCE WITH THE ASSESSEE, IT WAS F AIRLY ITA NO.3115 & 2348/MUM/2013 M/S WHISTLING WOODS INTERNATIONAL LTD. 3 AGREED BY THE LD. COUNSEL THAT THE ADDITIONAL EVIDE NCE WAS VERY MUCH AVAILABLE WITH THE ASSESSEE WELL BEFORE ASSESSMENT STAGE. CONSIDERING THE TOTALITY OF FACTS AND THE FACTUAL MATRIX THAT THE ADDITIONAL EVIDENCE INTENDE D TO BE PREFERRED NOW WAS VERY MUCH AVAILABLE WITH THE ASSE SSEE WELL BEFORE THE ASSESSMENT PROCEEDINGS AND WAS DELIBERATELY NOT FILED BEFORE THE REVENUE AUTHORITI ES. IT IS ALSO NOTED THAT THE MATTER AT EARLY STAGE TRAVELED TO THE TRIBUNAL AND BROADLY THE ISSUES WERE DECIDED AGAINST THE ASSESSEE. NO PLAUSIBLE REASONING WAS EXPLAINED BY T HE ASSESSEE. IT IS MERELY A TECHNIQUE OF THE ASSESSEE TO DELAY THE PROCEEDINGS, THEREFORE, IN THE ABSENCE OF ANY C OGENT REASON OF ADMISSION, AT THIS STAGE, THE ADDITIONAL EVIDENCE, IS NOT ADMITTED. 2.1. SO FAR AS, GROUND NO. 3 (RAISED BEFORE LD. COMMISSIONER OF INCOME TAX (APPEAL) TREATING THE IN TEREST OF RS.19,08,724/- AS INCOME FROM OTHER SOURCES IS CONCERNED, SINCE THE SAME INADVERTENTLY REMAINED TO BE ADJUDICATED BY THE LD. FIRST APPELLATE AUTHORITY, T HEREFORE, THE SAME IS REMANDED BACK TO THE FILE OF THE COMMIS SIONER ITA NO.3115 & 2348/MUM/2013 M/S WHISTLING WOODS INTERNATIONAL LTD. 4 OF INCOME TAX (APPEAL) TO DECIDE AFRESH IN ACCORDAN CE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEA RD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUP PORT OF ITS CLAIM. THUS, THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 2.2. FOR THE REMAINING GROUNDS, WE UPHELD THE ORDE R OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL), THU S, THIS APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATIS TICAL PURPOSES. 3. NOW, WE SHALL TAKE UP THE APPEAL FOR ASSESSMENT YEAR 2004-05 (ITA NO.3115/MUM/2013). THE CRUX OF ARGUMENT IS THAT GROUND NO. 2, RAISED BEFORE THE LD . COMMISSIONER OF INCOME TAX (APPEAL) WAS NOT ADJUDIC ATED BY HIM. CONSIDERING THE TOTALITY OF FACTS, THE COMM ISSIONER OF INCOME TAX (APPEAL) IS DIRECTED TO ADJUDICATE GR OUND NO.2 IN ACCORDANCE WITH LAW, FOR WHICH THE ASSESSEE BE GIVEN OPPORTUNITY. THE ASSESSEE IS FREE TO SUBSTANT IATE ITS CLAIM WITH DOCUMENTARY EVIDENCE, IF ANY, THUS, THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.3115 & 2348/MUM/2013 M/S WHISTLING WOODS INTERNATIONAL LTD. 5 FOR THE REMAINING GROUNDS, WE UPHELD THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AS THE MATTER TRAVELLED UP TO THE TRIBUNAL AND HAD REACHED TO FIN ALITY AT LEAST UP TO THE TRIBUNAL LEVEL. FINALLY, BOTH THE APPEALS OF THE ASSESSEE ARE PARTL Y ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 11/05/2016. SD/- SD/- (RAJENDRA) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER MUMBAI; $ DATED : 16/05/2016 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. &' () / THE APPELLANT (RESPECTIVE ASSESSEE) 2. *+() / THE RESPONDENT. 3. , , - ( &' ) / THE CIT, MUMBAI. 4. , , - / CIT(A)- , MUMBAI, 5. /01 *2 , , &' ! &23 , / DR, ITAT, MUMBAI 6. 14 5 / GUARD FILE. / BY ORDER, +/' * //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI