ACIT RG 6(1), MUMBAI V. JAYANT OIL & DERIVATIVES LTD, MUMBAI

ITA 3255/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9244 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 28-01-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 15-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K BHALODIA
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI N.V.VASUDEVAN, JM ITA NO.3255/MUM/2009 : ASST.YEAR 2005-2006 THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 6(1) MUMBAI. VS. M/S.JAYANT OIL & DERIVATIVES LIMITED 13, SITAFALWADI, MAZGAON MUMBAI 400 010. PA NO.AAACJ2845F. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N.K.BHALODIA RESPONDENT BY : --- NONE --- O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 18.03.2009 IN RELATION TO THE ASSESSMENT YEAR 2005-2006. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE DELETION OF ADDITION OF RS.7 LAKHS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF P ROFESSIONAL FEES RECEIVED BY THE ASSESSEE FROM M/S.JAYANT OIL MILLS, BARODA. BRI EFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER, ON THE BASIS OF INF ORMATION AVAILABLE WITH THE DEPARTMENT ON AIR SYSTEM, OBSERVED THAT THE ASSESSE E HAD RECEIVED PROFESSIONAL FEES AMOUNTING TO RS.7 LAKHS FROM M/S.JAYANT OIL MI LLS, BARODA. ON VERIFICATION IT WAS SEEN THAT THE ASSESSEE HAD NOT SHOWN THIS RECEI PT IN ITS RETURN OF INCOME. IN THE ABSENCE OF THE ASSESSEE RECONCILING OR EXPLAINING T HE DISCREPANCY, THE A.O. MADE ADDITION OF RS.7 LAKHS, WHICH CAME TO BE DELETED IN THE FIRST APPEAL. 3. THERE IS NO APPEARANCE FROM THE SIDE OF THE ASSE SSEE DESPITE NOTICE. AFTER GOING THROUGH THE RELEVANT MATERIAL ON RECORD IN TH E LIGHT OF SUBMISSIONS MADE BY THE LD. DR, IT IS OBSERVED THAT THE CASE OF THE ASS ESSEE BEFORE THE LEARNED CIT(A) WAS THAT THE BARODA UNIT OF THE ASSESSEE-COMPANY HA D REMITTED THE SUM OF RS.7 ITA NO.3255/MUM/2009 M/S.JAYANT OIL & DERIVATIVES LIMITED. 2 LAKHS TO THE ASSESSEES HEAD OFFICE AND SINCE THE P AYER AND PAYEE REMAINED THE SAME, THERE WAS NO QUESTION OF ANY INCOME. WE FIND THAT THIS CONTENTION WAS RAISED BEFORE THE LEARNED CIT(A) FOR THE FIRST TIME , WHO ACCEPTED THE SAME WITHOUT CALLING FOR THE REPORT FROM THE ASSESSING OFFICER, MORE SPECIFICALLY IN VIEW OF THE FACT THAT THE ASSESSEE FAILED TO FURNISH ANY RECONC ILIATION OR EXPLANATION ABOUT THIS INCOME RECEIVED FROM M/S.JAYANT OIL MILLS, BARODA B EFORE THE AO. OBVIOUSLY IF THE PAYER AND PAYEE ARE ONE PERSON, THEN THERE CANN OT BE ANY QUESTION OF INCOME ARISING FROM ASSESSEE TO ITSELF. IN VIEW OF THE FAC T THAT THE NAME OF THE PAYER HAS BEEN MENTIONED AS M/S.JAYANT OIL MILLS, BARODA WHER EAS THE ASSESSEE IS NAMED AS M/S.JAYANT OIL & DERIVATIVES LIMITED, IT NEEDS VER IFICATION WHETHER BOTH THE PARTIES ARE SAME OR NOT. UNDER SUCH CIRCUMSTANCES W E ARE OF THE CONSIDERED OPINION THAT IT WILL BE IN THE INTEREST OF JUSTICE IF THE I MPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFF ICER. WE ORDER ACCORDINGLY AND DIRECT HIM TO DECIDE THIS ISSUE AFRESH AS PER LAW A FTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLES S TO SAY THE ASSESSEE WILL FURNISH COMPLETE DETAILS AS CALLED FOR BY THE ASSESSING OFF ICER TO PROVE HIS CASE. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 28 TH DAY OF JANUARY, 2010. SD/- SD/- (N.V.VASUDEVAN) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT ME MBER MUMBAI : 28 TH JANUARY, 2010. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A)-VI, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. ITA NO.3255/MUM/2009 M/S.JAYANT OIL & DERIVATIVES LIMITED. 3 TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI. ITA NO.3255/MUM/2009 M/S.JAYANT OIL & DERIVATIVES LIMITED. 4 DATE INITIAL 1. DRAFT DICTATED ON 28.01.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 28.01.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER.