DCIT 22(2), NAVI MUMBAI V. BABAN KATWATE, MUMBAI

ITA 3306/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2726 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-08-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 11-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VINITA MENON
• Assessee Lawyers: RAJEEV MANNADIAR; AJAY L THAKORE
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO 3306/MUM/2012 ASSESSMENT YEAR: 2007-08 THE DCIT - 22(2) , TOWER NO. 6, 4 TH FLOOR, VASHI RAILWAY STATION BLDG. COMPLEX, VASHI, NAVI MUMBAI- 400 703. VS. SHRI. BABAN B. KATWATE, T-223,02, OLD BARRACK, BEHIND MUNCIPAL HINDI SCHOOL, CHEMBUR CAMP, MUMBAI- 400 074. PAN:- AHYPK1263C (APPELLANT) (RESPONDENT) & ITA NO 3253 & 3254/MUM/2012 ASSESSMENT YEAR: 2007-08 SHRI. BABAN B. KATWATE, T-223,02, OLD BARRACK, BEHIND MUNCIPAL HINDI SCHOOL, CHEMBUR CAMP, MUMBAI- 400 074. PAN:- AHYPK1263C VS. THE ACIT, TOWER NO. 6, 4 TH FLOOR, VASHI RAILWAY STATION BLDG. COMPLEX, VASHI, NAVI MUMBAI- 400 703. (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. VINITA MENON. RESPONDENT BY : SHRI . AJAY L. THAKORE, & RAJEEV MANNADIAR. DATE OF HEARING : 16/06/2016 DATE OF PRONOUNCEMENT: 2 3/09/2016 O R D E R PER RAM LAL NEGI, JM THE ASSESSEE AND THE REVENUE HAVE FILE D CROSS APPEALS ITA NO 3253 & 3306/MUM/2012 RESPECTIVELY AGAINST THE IMPUGNED ORD ER PASSED BY THE LD. 2 ITA NO. 3306/MUM/2012 & ITA NO. 3253 & 3254/MUM/2012 ASSESSMENT YEAR: 2007-08 CIT(APPEALS)- 33 MUMBAI, WHEREBY THE LD. CIT(A) HA S PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAINST ASSESSMENT ORD ER DATED 29/12/2009 PASSED U/S 144 OF THE INCOME TAX ACT, 1961 (IN SHOR T THE ACT) AND ITA NO 3254/MUM/2012 HAS BEEN FILED BY THE ASSESSEE AGAINS T IMPUGNED ORDER PASSED BY THE LD. CIT(A) FOR THE ASST. YEAR 2007-08 WHEREBY THE LD. CIT(A) HAS CONFIRMED PENALTY ORDER PASSED BY THE AO U/S 271(1( C) OF THE ACT. SINCE ALL THE THREE APPEALS PERTAIN TO THE SAME ASSESSEE FOR THE SAME ASSESSMENT YEAR, THE SAME WERE HEARD TOGETHER AT THE REQUEST OF THE LD. AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE AND ARE BEING DISPOSED OF BY T HIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 3253/MUM/2012 A.Y. 2007-08 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR DECLARING THE TOTAL IN COME OF RS. 16,74,370/-. SINCE THE ASSESSEE DID NOT RESPOND TO THE NOTICES I SSUED U/S 142(1) & 143(2), AND ALSO FAILED TO APPEAR AND PRESENT ITS CASE ON D IFFERENT DATES AS MENTIONED IN THE ASSESSMENT ORDER, THE A.O PROCEED TO COMPLET E THE ASSESSMENT EX-PARTE U/S 144 OF THE ACT AND ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT RS. 89,07,620/- AFTER MAKING ADDITIONS UNDER DIFFERENT HEAD. AGGRIEVED, THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE LD. CIT(A). THE LD. CIT(A) AFTER HEARING THE ASSESSEE PARTLY ALLOWED THE APPEA L OF THE ASSESSEE. THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST T HE IMPUGNED ORDER PASSED BY THE LD. CIT(A) RAISING FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- A. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF ADVANCE AGAINS T ORDERS AGGREGATING TO RS. 13,95,078/-. 3 ITA NO. 3306/MUM/2012 & ITA NO. 3253 & 3254/MUM/2012 ASSESSMENT YEAR: 2007-08 B. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT PRI OR TO THE DATE OF ASSESSMENT ORDER, OUT OF RS. 13,95,078/- ADVANCES OF RS. 11,54,304/- WAS TAXED IN A.Y. 2008-09, PART AMOUNT WAS TAXED IN THE SAME ASSESSMENT YEAR FOR WHICH ADVANCE WAS REC EIVED, PART AMOUNT IN THE EARLIER ASSESSMENT YEAR AND BALANCE AMOUNT IN A.Y. 2009-10 AND THEREBY CONFIRMING DOUBLE ADDITION. C. THE LEARNED CIT(A) ERRED IN GIVING DIRECTION, FO R TAXING THE OPENING ADVANCES AGGREGATING TO RS. 5,65,000/- EITH ER IN EARLIER YEARS OR THE SUBSEQUENT YEARS ON THE BASIS OF RECEI PT. WITHOUT CONSIDERING THE LEGAL POSITION THAT, DIRECTION CAN BE GIVEN ONLY FOR THE YEAR OF APPEAL AND NOT FOR ANY PRIOR OR SUBSEQU ENT YEARS. THE DIRECTION SO GIVEN IS ILLEGAL AND WITHOUT THE AUTHO RITY OF LAW AND THEREFORE DESERVES TO BE DELETED. D. THE LEARNED CIT(A) ERRED IN GIVING DIRECTION, TO MAKE ADDITION OF RS. 76,450/- IN THE NAME OF SHRI. VILAS KATWATE IN EARLIER YEARS, BEING OPENING BALANCE CARRIED FORWARD FROM THE PREC EDING YEARS. WITHOUT CONSIDERING THE LEGAL POSITION THAT, DIRECT ION CAN BE GIVEN ONLY FOR THE YEAR OF APPEAL AND NOT FOR ANY PRIOR O R SUBSEQUENT YEARS. THE DIRECTION SO GIVEN IS ILLEGAL AND WITHOU T THE AUTHORITY OF LAW AND THEREFORE DESERVES TO BE DELETED. ITA NO. 3254/MUM/2012 A.Y. 2007-08 1. ON THE OTHER HAND THE REVENUE HAS FILED THIS CR OSS APPEAL AGAINST THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) ON THE FOLL OWING EFFECTIVE GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF EXPEND ITURE AMOUNTING TO RS. 54,15,128/- OVERLOOKING THE FACT THAT THIS R EPRESENTED 25% OF 4 ITA NO. 3306/MUM/2012 & ITA NO. 3253 & 3254/MUM/2012 ASSESSMENT YEAR: 2007-08 THE EXPENSES CLAIMED BY THE ASSESSEE ON ACCOUNT OF PURCHASE, SALARIES, & WAGES AND LABOUR CHARGES AND THAT THE C LAIM FOR SUCH EXPENSES HAD NOT BEEN SUBSTANTIATED IN TERMS OF SEC TION 37(1)OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF EXPEND ITURE AMOUNTING TO RS. 54,15,128/-, INSPITE OF THE FACT THAT NO EVI DENCE OF ANY KIND HAD BEEN PRODUCED DURING THE ASSESSMENT PROCEEDINGS IN SUPPORT OF THE ASSESSEES CLAIM, THOUGH ADEQUATE OPPORTUNITIE S WERE GIVEN TO SUBSTANTIATE THE CLAIM FOR DEDUCTION. 2. AT THE OUTSET THE LD. AR SUBMITTED THAT AO HAS COMPLETED THE ASSESSMENT ORDER WITHOUT CONSIDERING THE DETAILS FURNISHED BY THE ASSESSEE BEFORE HIM. IT WAS FURTHER SUBMITTED THAT THE DURING THE APPELLATE PROCEEDINGS, LD.CIT(A) CALLED FOR THE REMAND REPORT FROM THE AO AND IN THE SAID PROCEEDINGS ALSO THE AO DID NOT CONSIDER ALL THE DETAILS. ON THE OTHER H AND THE LD. DEPARTMENTAL REPRESENTATIVE (DR) CONTENDED THAT THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY TO PRESENT HIS CASE AND THE ASSESSMENT AND APPELLATE ORDERS HAVE BEEN PASSED BY THE RESPECTIVE AUTHORITIES AFTER TAK ING IN CONSIDERATION OF THE SUBMISSIONS OF THE ASSESSEE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PE RUSED THE MATERIAL PLACED ON RECORD. IN VIEW OF THE FACT THAT THE TAX AUTHORI TIES HAVE NOT CONSIDERED THE DOCUMENTS/MATERIALS IN ENTIRETY, WE ARE OF THE CONS IDERED VIEW THAT ALL THE ISSUES CONTENDED BY THE ASSESSEE AND THE REVENUE RE QUIRE FRESH CONSIDERATION BY THE AO. ACCORDINGLY, WE SET ASIDE THE IMPUGNED O RDER AND RESTORE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO PASS TH E ORDER AFRESH AFTER HEARING THE ASSESSEE. 5 ITA NO. 3306/MUM/2012 & ITA NO. 3253 & 3254/MUM/2012 ASSESSMENT YEAR: 2007-08 ITA NO. 3254/MUM/2012 A.Y. 2007-08 1. THE ASSESSEE HAS PREFERRED THIS APPEAL AGAINST THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) WHEREBY THE LD. CIT(A) HAS CONFIR MED THE PENALTY ORDER PASSED BY THE AO U/S 271(1)(C) OF THE ACT. 2. SINCE ALL THE ISSUES HAVE BEEN SET ASIDE TO AO THE PENALTY ORDER DOES NOT SURVIVE. HOWEVER, THE AO MAY INITIATE PENALTY PROCE EDINGS U/S 271(1)(C) OF THE ACT IN SET ASIDE PROCEEDINGS. 3. IN THE RESULT, ALL THE THREE APPEALS ARE TREATE D AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD SEPTEMBER, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 23/09/2016 / 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. 6 ITA NO. 3306/MUM/2012 & ITA NO. 3253 & 3254/MUM/2012 ASSESSMENT YEAR: 2007-08 / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA