SUNRISE ENTERPRISES, MUMBAI V. ITO 32(3)(4), MUMBAI

ITA 3166/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8783 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 05-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: IN CIRCUMSTANCES OF CA SE
• Keywords: Opportunity of being heard
• Section: 142(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNALH BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.3166/MUM/2016 ( / ASSESSMENT YEAR: 2011-12) SUNRISE ENTERPRISES SHOP NO.16, SHREEJI SHOPPING ARCADE, M.G.ROAD, BORIVALI EAST MUMBAI - 400066 / VS. ITO 32(3)(4) MUMBAI ./ ./ PAN/GIR NO. AAZFS4806M ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 04.01.2017 /DATE OF PRONOUNCEMENT: 20.01.2017 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 19.02.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-44, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y.2011- 12. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME TAX (APPEALS) ASSESSEE BY: NONE DEPARTMENT BY: SHRI M. C. OMI NINGSHEN ITA NO.3166.M.16 A.Y. 2011-12 2 44 HAS ERRED IN NOT PROVIDING AN OPPORTUNITY TO EXPLAIN THE DIFFERENCE BETWEEN THE MARKET VALUE ADOPTED BY THE STAMP DUTY AUTHORITIES AND AGREEMENT VALUE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME-TAX (APPEALS) 44 HAS ERRED IN UPHOLDING THE ADDITION OF RS.11,01,606/- WHICH IS ON AN ADHOC BASIS, BEING 10% OF THE WAGES PAID TO THE WORKERS ON THE GROUND THAT THE IDENTITIES OF THESE WORKERS NOT PROVED. HE FAILED TO APPRECIATE THE NATURE OF WORK AND FREQUENCY OF LABOUR TURNOVER IN THE BUSINESS OF THE APPELLANT. 3. THE ABOVE GROUNDS ARE INDEPENDENT OF THE OTHER. THE APPELLANT CRAVES LEAVE TO ADD ALTER AND DELETE ANY OF THE OTHER GROUND ON OR BEFORE THE COMPLETION OF THE APPELLATE PROCEEDINGS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ELECTRONICALLY ON 30.09.2011 DECLARING TOTAL INCOME TO THE TUNE OF RS.7,47,360/-. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S.143(2) AND 142(1) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) WERE ISSUED AND DULY SERVED UPON THE ASSESSEE. THE ASSESSEE WAS DERIVING THE INCOME FROM BUSINESS OF LABOUR CONTRACTOR AND HAD TAKEN CONTRACTS AT SITES OF OTHER BUILDERS DURING THE YEAR UNDER CONSIDERATION. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY ASSESSING TOTAL INCOME TO THE TUNE OF RS.64,05,342/-. THEREAFTER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. FEELING AGGRIEVED THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ITA NO.3166.M.16 A.Y. 2011-12 3 ISSUE NO.1 TO 3:- 4. HOWEVER, THE ASSESSEE DID NOT APPEAR BEFORE US DESPITE REPEATED CALLS DESPITE SERVICE. ON APPRAISALS OF THE RECORD, WE FOUND THAT THE ASSESSEE SOUGHT THE OPPORTUNITY TO EXPLAIN THE DIFFERENCE BETWEEN MARKET VALUE ADOPTED BY THE STAMP DUTY AUTHORITIES AND AGREEMENT VALUE. ON APPRAISAL OF THE FINDING ON THIS ISSUE IN PARA NO.3 OF THE CIT(A), WE OBSERVED THAT THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE DIFFERENCE BETWEEN THE MARKET VALUE ADOPTED BY THE STAMP DUTY AUTHORITY AND AGREEMENT VALUE. NO DOUBT, IN THE INTEREST OF JUSTICE AN OPPORTUNITY TO EXPLAIN THE VALUATION PROPERLY IS REQUIRED TO BE GIVEN IN ACCORDANCE WITH LAW. THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE FINDING GIVEN BY THE CIT(A) ON THIS ISSUE AS WELL AS ON THE OTHER ISSUES IS NOT JUSTIFIABLE, THEREFORE, THE FINDING OF THE CIT(A) IS HEREBY ORDERED TO BE SET ASIDE AND CIT(A) IS HEREBY DIRECTED TO DECIDE THE MATTER AFRESH AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ALL THE ISSUES IN ACCORDANCE WITH LAW. 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JANUARY, 2017 . SD/- SD/- (D.KARUNAKARA RAO) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 20 TH JANUARY, 2017 MP ITA NO.3166.M.16 A.Y. 2011-12 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI