HITESH BHUPENDRA SHAH, MUMBAI V. ITO 27(1)(3), MUMBAI

ITA 3221/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2016 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 15-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 142(1); 37(1); 143(1); 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B. R. BASKARAN , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 3221 /MUM/201 8 ( / ASSESSMENT YEAR: 20 13 - 14 ) HITESH BHUPENDRA SHAH A/2, SINDHU BAUG, TILAK ROAD , GHATKOPAR E, MUMBAI - 400077. . / VS. ITO 27(1)(3) IT OFFICE, VASHI RAILWAY STATION BUILDING NAVI MUMBAI. ./ ./ PAN/GIR NO. : AAIPS6410J ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 09 / 0 4 / 201 9 / DATE OF PRONOUNCEMENT : 17 / 06 / 201 9 / O R D E R PER AMARJIT SINGH, J M: T HE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 09 . 0 3 .201 8 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 25 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 13 - 1 4 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUN DS: - 1. THE LD. ASSESSING OFFICER ERRED IN ASSESSING THE INCOME AT RS.17,31,200/ - INSTEAD OF THE RETURN INCOME OF RS.13,06,200/ - AND THE CIT(A) ERRED IN CONFIRMING THE SAME. 2. THE LD. ASSESSING OFFICER ERRED IN DISALLOWING RS.4,25,000/ - COMMISSION PAID TO SHRI BHUPENDRA SHAH, REVENUE BY : SH RI CHAITANYA ANJARIA (DR) ASSESSEE BY: SHRI ASHOK MEHTA ITA NO. 3221 / M/201 8 A.Y.20 13 - 1 4 2 ASSESSEES FATHER, U/S 40(A)(2)(B) R.W. SECTION 37 OF THE INCOME TAX ACT, 1961 WITHOUT PROVIDING ANY JUSTIFICATION FOR THE EXPENSE BEING EXCESSIVE AND THE CIT(A) ERRED IN CONFIRMING THE SAME. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 26 . 09 .20 13 DECLARING TO TAL INCOME TO THE TUNE OF RS.13,06,200/ - FOR THE A.Y. 2013 - 14 . T HE RETURN WAS PROCESSED U/S 143(1) OF THE I.T. ACT, 1961. THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY. NOTICES U/ S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSE. THE ASSESSEE IS THE PROPRIETOR OF M/S. H IND RASAYAN WHO IS ENGAGED IN THE BUSINESS OF RESELLER IN CHEMICALS. THE INCOME OF THE ASSESSEE CONSISTS OF INCOME FROM THE BUSINESS AND PROFESSIO N. THE ASSESSEE CLAIM ED COMMISSION EXPENSES IN SUM OF RS.51,39,436/ - BUT FAILED TO SUBSTANTIATE CLAIM IN CONNECTION WITH RS.4,25,000/ - , THEREFORE, THE SAME WAS DISALLOWED U/S 40A(2)(B) OF THE ACT R.W.S. 37(1) OF THE ACT AND ADDED TO THE INCOME OF THE ASSES SEE. THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS. 17,31,200/ - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE, THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE DID NOT ARGUE THE CASE ON MERITS. THE ASSESSEE TOOK THE PLEA BY MOVING THE APPLICATION THAT HE HAS RECEIVED THE CONFIRMATION FROM THIRD PARTY AND ALSO RECEIVED RETURN OF SHRI BHUPENDRA SHAH AND AFFIDAVIT OF BHUPENDRA SHAH TO PROVE THE SERVICE PROVIDE TO HIM THEREFORE HE SHOULD BE ALLOWED ADDUCE THE SAME IN ADDITIONAL EVIDENCE . IT IS ON RECORD THAT ALL THE DOCUMENTS WERE NOT PRODUCED BEFORE THE AO AS WELL AS CIT(A), THEREFORE, THE ASSESSEE MOVED ITA NO. 3221 / M/201 8 A.Y.20 13 - 1 4 3 AN APPLICATION FOR ADDITIONAL EVIDENCE . T HE ASSESSEE WANT ED TO PROVE THE CONFIRMATION, RETURN O F BHUPENDRA SHAH AND AFFIDAVIT IN THE SHAPE OF ADDITIONAL EVIDENCE AND THE SAID PIECE OF EVIDENCE BEARING UPO N THE MERITS OF THE CASE, THEREFORE, WE ARE OF THE VIEW THAT THE ADDITIONAL EVIDENCE IS SHOULD BE ADMITTED IN THE INTEREST OF JUSTICE. ACCORDINGLY, WE ADMIT THE ADDITIONAL EVIDENCE AND SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND RESTORED THE MATT ER OF CONTROVERSY BEFORE THE AO TO DECIDE THE MATTER OF CONTROVERSY AF RESH IN THE LIGHT OF EVIDENCE ADDUCED BEFORE US B Y GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HERE BY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 17 /06 /2019 . SD/ - SD/ - ( B. R. BASKARAN ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 17 /06 /2019 V IJAY SR. P.S. / 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// (SR. PRIVATE SECRETARY) , / ITAT, MUMBAI