DEEPAK NAGINDAS SHAH, MUMBAI V. ACIT CIR. 19(1), MUMBAI

ITA 3355/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5350 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 20-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARJU GARODIA
• Keywords: Business income; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER ITA NO. 3355 /MUM/2019 (A.Y: 2015 - 16) DEEPAK NAGINDAS SHAH 506 - B, WALKESHWAR CHANDANBALA CHS LTD ., 4, R.R . THAKKAR ROAD WALKESHWAR, MUMBAI 400 006 PAN: AAQPS1861H V. ACIT, CIRCLE 19(1) 2 ND FLOOR MATRU MANDIR TARDEV ROAD MUMBAI 400 007 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : MS. ARJU GARODIA DATE OF HEARING : 21.09.2020 DATE OF PRONOUNCEMENT : 29 .09.2020 O R D E R PER C.N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 30, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 29.03.2019 FOR THE ASSESSMENT YEAR 2015 - 16. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DISMISSING THE APPEAL FILED WITHOUT PROVIDING AN OPPORTUNITY OF BEING HEARD. 2 ITA NO. 3355/MUM/2019 (A.Y: 2015 - 16) DEEPAK NAGINDAS SHAH 2. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS. 60,76,295/ - ON ACCOUNT OF DISALLOWANCE OF INTEREST PAID ON UNSECURED LOANS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT BUSINESS INCOME IS TAXABLE INCOME AND NOT TAX FREE INCOME. 4. ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT IT IS NOT MANDATORY TO HAVE POSITIVE BUSINESS INCOME TO CLAIM EXPENSES. 5 ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) FAILED TO APPRECIATE THAT ALL BORROWED MONEY IS DEPLOYED IN PARTNERSHIP FIRM TO EARN BUSINESS INCOME. 6. O N THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE AP PELLANT HAS EARNED RS. 1,71,64,6207 - AS BUSINESS INCOME FROM M/S . RITESH EXPORTS WHICH IS SIGNIFICANTLY HIGHER THAN THE INTEREST EXPENSES CLAIMED. 7. THE APPELLANT CRAVES LEAVES TO ADD, ALTER, AMEND, WITHDRAW OR MODIFY ANY OR ALL GROUNDS OF APPEAL, EACH OF WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER. 3. INSPITE OF ISSUE OF NOTICE NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT WAS SOUGHT. THEREFORE, I PROCEED TO DISPOSE OF THIS APPEAL ON HEARING THE LD. DR ON MERITS. 4. HEARD LD. DR , PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON A P ERUSAL OF THE LD.CIT(A) ORDER, I FIND THAT EVEN THOUGH THE LD.CIT(A) PROVIDED OPPORTUNITY ON SEVERAL OCCASIONS ASSESSEE COULD NOT APPEAR AND ASSES SEE FILED ADJOURNMENT PETITION ON THE LAST OCCASION I.E. 14.02.2019 3 ITA NO. 3355/MUM/2019 (A.Y: 2015 - 16) DEEPAK NAGINDAS SHAH WH EN THE MATTER HAS BEEN TAKEN UP AND THIS ADJOURNMENT WAS REJECTED BY THE LD.CIT(A) . CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE AND KEEPING IN VIEW THE ADDITIONS/DISALLOWANCE MADE BY THE ASSESSING OFFICER, IN THE INTEREST OF JUSTICE I AM OF THE OPINION THAT ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD. THUS, THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) FOR DENOVO ADJUDICATION IN ACCORDANCE WITH LAW. ASSESSEE SHALL COOPERATE WITH THE PROCEEDINGS BEFORE THE LD.CI T(A) WITHOUT TAKING UNNECESSARY ADJOURNMENTS. THUS, THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) ACCORDINGLY. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 29 . 09.2020 AS PER RULE 34(4) OF ITAT RULES BY PLACING THE PRONOUNCEMENT LIST IN THE NOTICE BOARD. S D / - (C.N. PRASAD) JUDICIAL MEMBER MUMBAI / DATED 29 / 0 9 / 2020 GIRIDHAR , S R. PS 4 ITA NO. 3355/MUM/2019 (A.Y: 2015 - 16) DEEPAK NAGINDAS SHAH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM