UDAY C. ABHANG, NAVI MUMBAI V. DCIT (-SD-II) C.R-7, MUMBAI

ITA 3359/MUM/2013

• Counselvise Citation: 335919914 RSA 2013
• Duration Of Justice: 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 01-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 144

Judgement Text

- 1 - VK;DJ VIHYH; VF/KDJ.K LH U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI JH ,U JH ,U JH ,U JH ,U- -- - DS DSDS DS- -- - LSUH] YS[KK LNL; ,OA JH LAT; XXZ] U;KF;D LNL; DS LE{ K LSUH] YS[KK LNL; ,OA JH LAT; XXZ] U;KF;D LNL; DS LE{K LSUH] YS[KK LNL; ,OA JH LAT; XXZ] U;KF;D LNL; DS LE{K LSUH] YS[KK LNL; ,OA JH LAT; XXZ] U;KF;D LNL; DS LE{K BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER VK;DJ VIHY LA[;K /ITA NO. 3359/MUM/2013 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2010-11 SHRI UDAY C. ABHANG 47, KUBER, SECTOR -17, VASHI NAVI MUMBAI 400 703. CUKE@ VS. DCIT (OSD-II)-C.R.-7, ROOM NO. 413, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA[;K /ITA NO. 3358/MUM/2013 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2010-11 SHASHIKALA C. ABHANG PLOT NO. 428, VARDHMAN MARKET, SECTOR-17, VASHI NAVI MUMBAI 400 703.. CUKE@ VS. DCIT (OSD-II)-C.R.-7, ROOM NO. 413, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. PAN:- ADPPA1557J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA[;K /ITA NO. 3360/MUM/2013 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2010-11 SHRI CHANDRAKANT M. ABHANG, 47, KUBER, SECTOR -17, VASHI NAVI MUMBAI 400 703. CUKE@ VS. DCIT (OSD-II)-C.R.-7, ROOM NO. 413, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. PAN:- ADPPA1555L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VIHYKFKHZ DH VKSJ LS @ ASSESSEE BY SHRI NEELKANTH KAHNDELWAL . IZR;FKHZ DH VKSJ LS @ REVENUE BY SHRI RAVI PRAKASH VKNS'K@ VKNS'K@ VKNS'K@ VKNS'K@ ORDER PER N.K. SAINI, AM. THESE THREE APPEALS BY THE DIFFERENT ASSESSEES ARE DIR ECTED AGAINST THE ORDER DATED 28.2.2013 OF CIT(A)-40, MUMBAI. SINCE THE ISSU E INVOLVED IN THESE APPEALS ARE SIMILAR HAVING IDENTICAL FACTS AND THE APPEALS WERE HEARD TOGEHER SO, THESE ARE BEING LQUOKBZ DH RKJH[K@ DATE OF HEARING 05-02-2014 ?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT 05-02-2014 - 2 - DISPOSED OF BY A SINGLE CONSOLIDATED ORDER FOR THE S AKE OF CONVENIENCE. FIRST WE WILL DEAL WITH THE APPEAL IN ITA NO. 3359/MUM2013 . FOLLOWING GROUNDS HAS BEEN RAISED. 1. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE CIT (APPEALS) HAS ERED IN NOT TAKING INTO CONSIDERATION THE DETAI LS/DOCUMENTS PRODUCED BEFORE HIM DURING THE COURSE OF HEARING. 2. ON FACT AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(AAPPEALS) HAS ERRED IN NOT ADJUDICATING THE GROUNDS TAKEN BEFORE HIM ON ACCOUNT OF VARIOUS ADDITIONS MADE BY THE ASSESSING OFFICER. 3. ON FACT AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW THE CIT(AAPPEALS) HAS ERRED IN CONFIRMING ADDITION OF RS. 8,58,677/- ON A CCOUNT OF DISALLOWANCE OF EXPENSES. 4. ON FACT AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(AAPPEALS) HAS ERRED IN CONFIRMING ADDITION OF RS. 13,96,002/- ON ACCOUNT UNSECURED LOANS EVEN THOUGHT THE SAME IS FULLY EXPLAINABLE 5. ON FACT AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(AAPPEALS) HAS ERRED IN CONFIRMING ADDITION OF RS. 6,61,254/- ON ACCOUNT OF SUNDRY LOANS EVEN THOUGH THE SAME IS FULLY EXPLAINABLE. 6. ON FACT AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(AAPPEALS) HAS ERRED IN CONFIRMING ADDITION OF RS. 74,952/- ON ACC OUNT OF OTHER LIABILITIES EVEN THOUGH THE SAME IS FULLY EXPLAINABLE. 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILE D E RETURN OF INCOME ON 14/7/2011 DECLARING TOTAL INCOME OF RS. 5,48,181/-. T HEREAFTER THE CASE WAS SELECTED FOR SCRUTINY. HOWEVER THE ASSESSMENT WAS FRAMED EX PARTE U/S 144 OF INCOME TAX ACT., 1961.(HEREINAFTER REFERRED TO AS THE ACT.) AT AN IN COME OF RS. 14,06,858/- BY MAKING VARIOUS DISALLOWANCES. AGAINST THE ASSESSMENT O RDER THE ASSESSEE PREFERRED AN APPEAL BEFORE CIT(A) AND FILED CERTAIN DETAILS AS ADDITIONAL EVIDENCES WHICH WERE NOT AVAILABLE TO THE AO. 3. THE LD. CIT(A) DID NOT ADMIT THOSE DETAILS AND CONF IRMED THE VIEW TAKEN BY THE AO BY OBSERVING IN PARA 4.2 OF HE IMPUGNED ORDER AS UNDER:- DURING THE COURSE OF APPELLATE PROCEEDINGS, THE A PPELLANT HAS FILED CERTAIN DETAILS WHICH AS DISCUSSED ABOVE ARE NOT BEING CONSIDERED, SINCE THEY AMOUNT TO ADDITIONAL EVIDENCE, WHICH WERE NOT AVAILABLE TO THE AO. IN VIEW OF THESE FACTS, I HAVE NO REASON TO DEVIATE WITH THE FINDING GIVEN BY AO IN THE ASSESSMENT ORDER AND THE ADDITIONS MADE BY AO ARE U PHELD. 4. NOW THE ASSESSEE IS IN APPEAL. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NEITHER AO NOR LD. CIT(A) APPRECIATED THE FACT IN RIGHT PERSPECTIVE AND EVEN DID NOT CONSIDER THE DETAILS FILED BY THE ASSESSEE. THEREFORE, THE ISSUE MAY BE SENT BACK TO THE FILE OF AO TO BE ADJUDICATED AFTER PROVIDING OPPOR TUNITY OF BEING HEARD TO THE - 3 - ASSESSEE. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGL Y SUPPORTED THE ORDER OF LD. CIT(A) BUT DID NOT OBJECT IF THE MATTER IS SENT BACK TO TH E FILE OF AO. 5. WE HAVE GIVEN OUR CAREFUL CONSIDERATION TO THE SU BMISSIONS OF BOTH THE PARTIES. IT IS NOTICED THAT THE LD. CIT(A) HAS NOT DECID ED THE ISSUE ON MERIT. HE ALSO HAS NOT ADMITTED THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE FOR THE REASON THAT THE ASSESSEE HAD NOT MADE ANY APPLICATION FOR ADM ISSION OF ADDITIONAL EVIDENCES. IT IS AN ADMITTED FACT THAT THE AO FRAMED THE A SSESSMENT EX PARTE AND THE LD. CIT(A) HAD NOT CONSIDERED THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE UNDER RULE 46A OF IT RULES 1962 ON TECHNICAL GROUND THAT NO APPLICATION WAS MADE FOR ADMISSION OF THOSE ADDITIONAL EVIDENCES. WE, THE REFORE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF AO TO BE ADJUDIC ATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING TRUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN OTHER APPEALS I.E. ITA NO. 3358//MUM/2013 AND 3360/MUM/2013, THE FACTS ARE IDENTICAL AND EVEN THE OBSERVATIONS OF LD. CIT(A ) ARE THE SAME WHICH WERE IN THE CASE OF SHRI UDAY C. ABHANG VS. DCIT CENTRAL CIRCLE- 7, MUMBAI WHICH WE HAVE ALREADY ADJUDICATED IN THE FORMER PART OF THIS ORDER, THEREFORE OUR FINDING GIVEN THEREIN SHALL APPLY TO THESE TWO APPEALS MUTATIS MUTANDIS . 4. IN THE RESULT APPEALS OF THE ASSESSEES ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5/02/201 4 SD/- SD/- (SANJAY GARG) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED 05 /02/2014 SKS SR. P.S COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI