NILU ASHOK GOYAL, MUMBAI V. ITO WD 24(2)1, MUMBAI

ITA 3301/MUM/2010

• Counselvise Citation: 330119914 RSA 2010
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2001-2002
• Appeal Filed On: 27-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RK GUPTA
• Assessee Lawyers: S C TIWARI
• Keywords: Deemed dividend
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SMT.ASHA VIJAYARAGHAVAN , JM ITA NO.3301/MUM/2010 : ASST.YEAR 2001-2002 MRS.NILU ASHOK GOYAL B-303, SHAGUN TOWER GEN.A.K.VAIDYA MARG, DINDOSHI GOREGAON (EAST), MUMBAI 400 097. PAN :AFYPG4748J. VS. THE INCOME TAX OFFICER WARD 24(2)(1) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.C.TIWARI RESPONDENT BY : SHRI R.K.GUPTA O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE CIT(A) ON 26.02.2010 IN RELATION TO ASSESSMENT YEAR 2001-2002 . 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E RETURN IN THIS CASE WAS FILED DECLARING TOTAL INCOME OF RS.1,09,366 ASSESSMENT OF WHICH WAS DONE U/S 143(1) OF THE ACT. THEREAFTER NOTICE U/S.148 WAS ISSUED ON TH E GROUND THAT THE ASSESSEE HAD ENTERED INTO TRANSACTIONS WITH M/S.BLR INDIA PRIVAT E LIMITED AMOUNTING TO RS.4,34,676 WHICH WERE COVERED U/S.2(22)(E) OF THE ACT. THE ASSESSEE SUBMITTED DETAILS BEFORE THE ASSESSING OFFICER ARGUING THAT T HE PROVISIONS OF DEEMED DIVIDEND WERE NOT ATTRACTED IN THIS CASE. THE AO GOT CONVINC ED WITH THE ASSESSEES SUBMISSION AND DID NOT MAKE ANY ADDITION U/S.2(22)( E) OF THE ACT. HE HOWEVER MADE DISALLOWANCES AMOUNTING TO RS.5,88,487 UNDER C ERTAIN HEADS OF EXPENSES. THE ASSESSEE CHALLENGED BEFORE THE LEARNED CIT(A) B Y WAY OF GROUND NO.1 THAT WHEN NO ADDITION WAS MADE U/S.2(22)(E) WHICH WAS TH E ONLY REASON FOR REOPENING THE ASSESSMENT, THEN THE A.O. SHOULD NOT HAVE MADE OTHER ADDITIONS. APART FROM THAT, THE MAKING OF ADDITION ON MERITS WAS ALSO CH ALLENGED BEFORE THE LEARNED ITA NO.3301/MUM/2010 MRS.NILU ASHOK GOYAL. 2 CIT(A). THE LD. CIT(A) DID NOT CONCUR WITH THE SUBM ISSIONS ADVANCED BEFORE HIM AND CHOSE TO UPHOLD THE ASSESSMENT ORDER. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS NOTICED THAT THE REASSESSMENT WAS INI TIATED BY WAY OF NOTICE U/S 148 FOR THE REASON THAT THE PROVISIONS OF SECTION 2(22) (E) OF THE ACT WERE APPLICABLE. HOWEVER NO ADDITION ON THAT ISSUE WAS MADE AS HE GO T SATISFIED WITH THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE ON THAT COUNT. IN THAT VIEW OF THE MATTER THE ASSESSING OFFICER SHOULD NOT HAVE PROCEE DED WITH THE REASSESSMENT IF THE GROUNDS MENTIONED IN REASSESSMENT NOTICE WERE N ON-EXISTENT. THE HONBLE JURISDICTIONAL HIGH COURT IN CIT VS. JET AIRWAYS (I.) LTD. [(2011) 331 ITR 236 (BOM.)] HAS HELD SO. SINCE THE DISALLOWANCE OF EXPENSES WAS NOT THE SUBJECT MATTER OF REOPENING OF THE ASSESSMENT, IN OUR CONSIDERED O PINION, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING SUCH ADDITIONS, WHEN NO ADDITION WAS MADE U/S.2(22)(E), BEING THE SOLE REASON FOR WHICH THE A SSESSMENT WAS REOPENED. RESPECTFULLY FOLLOWING THE AFORE-NOTED JUDICIAL PRO NOUNCEMENT, WE SET ASIDE THE IMPUGNED ORDER AND ORDER FOR THE DELETION OF THE IN STANT ADDITIONS. 4. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED ON THIS 27 TH DAY OF APRIL, 2011 . SD/- SD/- (ASHA VIJAYARAGHAVAN) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 27 TH APRIL, 2011. DEVDAS* ITA NO.3301/MUM/2010 MRS.NILU ASHOK GOYAL. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) XXXIV, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.