ATMARAM K. BHANDARI, MUMBAI V. ITO, WARD-24(1)-3, MUMBAI

ITA 3266/MUM/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59864 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 25-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: S S KELWADI
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI D. MANMOHAN (VICE PRESIDENT) AND SHRI B.RAMAKOTAIAH (ACCOUNTANT MEMBER) ITA NOS. 3266 & 3267/MUM/2011 ASSESSMENT YEARS-2004-05 & 2005-06 M/S. ATMARAM K. BHANDARI, A/104 KRISHNA RESIDENCY, NEAR DALMIA COLLEGE, MALAD (W), MUMBAI-400 064 PAN-AADPB 5938K VS. THE ITO, WARD-24(1)-3, C0-13 PRATYAKSHAKAR BHAVAN, BKC, BANDRA, MUMBAI-400 051 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI S.S. KELWADI RESPONDENT BY: SHRI P.K.B. MENON DATE OF HEARING :23 .02.2012 DATE OF PRONOUNCEMENT: 29.02.2012 O R D E R PER B. RAMAKOTAIAH, AM : THESE TWO ASSESSEES APPEALS ARE FOR ASSESSMENT YE ARS 2004-05 AND 2005-06. 2. WE HAVE HEARD THE LD. COUNSEL FOR THE ASSESSEE A ND LD. DEPARTMENTAL REPRESENTATIVE. 3. THE ASSESSEE HAS RAISED VARIOUS GROUNDS WHICH AR E IN FACT SUBMISSIONS ON THE ISSUE OF DETERMINING THE INCOME FOR THE ASSE SSMENT YEAR WHEN ASSESSEE HAS NOT EARNED ANY INCOME OR HAD ANY BUSIN ESS ACTIVITY INCLUDING CHALLENGE TO ISSUE OF REOPENING U/S 147. 4. BRIEFLY STATED, ASSESSEE FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2006-07 ADMITTING INCOME OF RS. 8,14,040/-. SINCE ASSESSEE HAS NOT FILED ITA NO.3410/M/2011 2 RETURNS IN EARLIER TWO YEARS, THE ASSESSING OFFICER REOPENED THE ASSESSMENT U/S. 147 CALLING FOR RETURNS. THE ASSESSEE DID NOT FILE ANY RETURN NOR THERE WAS ANY COMPLIANCE. THEREFORE, THE AO DETERMINED T HE INCOME AT 90% OF HIS INCOME DECLARED IN A.Y. 2006-07 FOR A.Y. 2005-06 A ND 80% OF SAME INCOME FOR A.Y. 2004-05. THE ASSESSEE CONTESTED THE SAME BEFORE LD. CIT(A). SINCE ASSESSEE DID NOT FURNISH ANY OTHER SUBMISSION OR EV IDENCES OTHER THAN WHAT WAS STATED BEFORE THE AO, HE CONFIRMED THE ESTIMATI ON OF INCOME AS WAS DONE BY AO. 5. BEFORE US, LD. COUNSEL FOR THE ASSESSEE FILED A PAPER BOOK WHEREIN STATEMENT OF RESPECTIVE ASSESSMENT YEARS WERE PLACE D WHICH WERE NOT FILED BEFORE AO. MOREOVER, IT WAS SUBMITTED THAT THERE I S NO BASIS FOR ESTIMATING THE INCOME AS WAS DONE BY AO AND RELIED ON THE SUBM ISSION MADE BEFORE LD. CIT(A) THAT ASSESSEES DEVELOPMENT AGREEMENT ITSELF WAS DATED 2.4.2005. THEREFORE, THERE IS NO BUSINESS IN THE RESPECTIVE A SSESSMENT YEARS SO AS TO EARN INCOME. THE LD. DR WHILE ADMITTING THE ASSESS EE HAS NOT PLACED ANY DOCUMENTS BEFORE THE AO, HOWEVER REFERRED THE BALAN CE SHEET PLACED IN THE PAPER BOOK TO SUBMIT THAT ASSESSEES CAPITAL AND OT HER ISSUES REQUIRE EXAMINATION PARTICULARLY, IN THE JOINT VENTURE OF M /S. KRISHNAATMA REALTIES. 6. WE HAVE CONSIDERED THE ISSUE. IT SEEMS THERE IS NO COMPLIANCE BEFORE AO IN RESPONSE TO VARIOUS NOTICES ISSUED THEREFORE , HE HAS NO OTHER OPTION THAN TO ESTIMATE THE INCOME U/S. 144. HOWEVER, WE ARE OF THE OPINION THAT THERE IS NO BASIS FOR ESTIMATING INCOME AT 80% AND 90% OF THE INCOME RETURNED FOR A.Y. 2006-07 WITHOUT EXAMINING WHETHER THERE WAS ANY BUSINESS IN THE IMPUGNED ASSESSMENT YEARS. SINCE THERE IS N O BASIS FOR ESTIMATING THE INCOME BY AO CONSEQUENTLY CONFIRMATION BY LD. CIT(A ) ALSO SUFFERS FROM THE SAME UNREASONABLE ESTIMATE. THEREFORE IN THE INTER EST OF JUSTICE, WE ARE OF THE OPINION THAT THE MATTER SHOULD BE RESTORED TO T HE FILE OF AO TO GIVE OPPORTUNITY TO THE ASSESSEE FOR MAKING THE SUBMISSI ONS. THE ASSESSEE IS DIRECTED TO PRODUCE DOCUMENTS BEFORE AO AND FILE NE CESSARY RETURN OF INCOME IN THE RESPECTIVE ASSESSMENT YEARS AND THE AO IS DI RECTED TO GIVE DUE ITA NO.3410/M/2011 3 OPPORTUNITY TO THE ASSESSEE FOR MAKING NECESSARY SU BMISSIONS. THEREFORE THE ORDERS OF AO AND LD. CIT(A) IN THE RESPECTIVE ASSES SMENT YEARS ARE SET ASIDE AND THE ASSESSMENT PROCEEDINGS ARE RESTORED TO THE FILE OF AO TO DO IT AFRESH ACCORDING TO LAW AND FACTS. THE ASSESSEE IS DIRECT ED TO COMPLY WITH THE DIRECTIONS OF AO IN THIS REGARD WITHOUT ANY FAILURE . 7. IN THE RESULT, APPEALS FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 29 TH DAY OF FEBRUARY, 2012 SD/- SD/- ( D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED 29 TH FEBRUARY,2012 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR E BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI