NOOPUR DEVELOPERS, MUMBAI V. DCIT CIR 25(1), MUMBAI

ITA 324/MUM/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6217 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-11-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 15-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S RAWAL
• Assessee Lawyers: S C KAPADIA
• Keywords: Opportunity of being heard
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, B, MUMBAI BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 324/MUM/2009 (ASSESSMENT YEAR 2004-05) NOOPUR DEVELOPERS FLAT NO.4, GR. FL, VISHAL APARTMENTS LTD ROAD, BORIVALI (W), MUMBAI-400092 PAN: AAAFN1362Q . APPELLANT VS DCIT CIR 25(1), C-11 PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI-400051 .. RESPONDENT APPELLANT BY : SHRI S C KAPADIA RESPONDENT BY : SHRI R S RAWAL O R D E R PER VIJAY PAL RAO,JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 15.12.2008 OF CIT(A) ARISING FROM THE ORDER PASSED U/S 271(1)( C ) OF THE ACT FOR THE ASSESSMEN T YEAR 2004-05.. 2. THE ASSESSEE RAISED VARIOUS GROUNDS IN THIS APPE AL, HOWEVER, THE ONLY ISSUE ARISES FOR OUR CONSIDERATIO N AND ADJUDICATION IS WHETHER IN THE FACTS AND CIRCUMSTAN CES OF THE ITA NO. 324/MUM/2009 (ASSESSMENT YEAR 2004-05) 2 CASE, THE CIT(A) IS JUSTIFIED IN CONFIRMING THE PEN ALTY OF RS.71,90,262/- LEVIED BY THE AO U/S 271(1)(C) OF THE ACT IN RELATION TO THE DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80IB . 3. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED TH E RELEVANT RECORD. AT THE OUTSET, IT IS POINTED OU T THAT THE ISSUE OF DISALLOWANCE ON THE BASIS OF WHICH THE PENALTY H AS BEEN LEVIED, HAS BEEN SET ASIDE TO THE RECORD OF THE A O BY THIS TRIBUNAL VIDE ORDER DATED 11.06.2009 PASSED IN ITA NO.6870/MUM/2006. WE NOTE THAT THIS TRIBUNAL HAS SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORED TH E ISSUE TO THE RECORD OF THE AO IN PARAGRAPH 3 AS UNDER : 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE DENIAL OF DEDUCTION IS PRIMARILY BASED ON THE STATEMENTS OF SHRI RUPAL SHYAM PRABHAKAR, ASSISTANT ENGINEER, BMC, MUMBAI AND SHRI VIJAY GARODIA, THE ARCHITECT FOR THE PR OJECT. IT WAS CLAIMED THAT THE COPIES OF THE STATEMENTS WE RE NOT PROVIDED TO THE ASSESSEE NOR ANY OPPORTUNITY T O CROSS-EXAMINE THESE PERSONS WAS AFFORDED. FROM THE ASSESSMENT ORDERS IT IS NOT COMING UP AS TO WHETHER THE ASSESSEE WAS ALLOWED ANY OPPORTUNITY TO CROSS- EXAMINE THESE TWO PERSONS. WITHOUT GOING INTO THE MERITS OF THE CASE WE ARE OF THE CONSIDERED OPINION THAT IT WILL BE JUST AND FAIR IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO. WE ORDER ACCORDINGLY AND DIRECT HIM TO SUPPLY THE COPIES OF THE STATEMENTS OF THESE TWO PARTIES, IF N OT SUPPLIED EARLIER AND ALSO ALLOW OPPORTUNITY TO CROS S- EXAMINE THESE PERSONS. THEREAFTER HE WILL DECIDE T HIS ISSUE AFRESH AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ITA NO. 324/MUM/2009 (ASSESSMENT YEAR 2004-05) 3 4. THUS, WHEN THE DISALLOWANCE AND ADDITION ON THE BASIS OF WHICH THE PENALTY WAS LEVIED BY THE AO AND CON FIRMED BY THE CIT(A) ITSELF SET ASIDE TO THE FILE OF THE A O FOR FRESH CONSIDERATION THE PENALTY WOULD NOT SURVIVE AND BEC OMES INFRUCTUOUS. ACCORDINGLY, WE DELETE THE PENALTY. H OWEVER, THE AO MAY RE-INITIATE THE PENALTY AS PER THE OUTCOME OF THE QUANTUM PROCEEDINGS. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11.2010 SD S D (T.R.SOOD) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 30 TH NOV 2010 SRL:251110 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI