PLUS TECH FABRICATORS P.LTD, NAVI MUMBAI V. ASST CIT 10(3), MUMBAI

ITA 3439/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71082 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 15-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T ROUMUAN PAITE
• Assessee Lawyers: DR P DANIEL
• Section: 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI . . , / !' , # $ % BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER . / ITA NO. 3439/MUM/2012 ' ' ' ' / ASSESSMENT YEAR 2009-10 M/S. PLUS TECH FABRICATORS PVT. LTD., 214, J.K.CHAMBERS, PLOT NO.76, SECTOR 17, NAVI MUMBAI 400 703 / VS. THE ACIT, CIR. 10(3), MUMBAI. ( # ./ )* ./ PAN/GIR NO. : AAACP 6612Q ( (+ / APPELLANT ) .. ( ,-(+ / RESPONDENT ) APPELLANT BY DR. P.DANIEL RESPONDENT BY : SHRI T.ROUMUAN PAITE . /# / DATE OF HEARING : 23/09//2013 01' . /# / DATE OF PRONOUNCEMENT : 23/09/2013 2 / O R D E R PER I.P.BANSAL, JM: THIS APPEAL IS FILED BY THE ASSESSEE. IT IS DIRE CTED AGAINST THE ORDER PASSED BY LD. CIT(A)-22 MUMBAI DATED 3/12/2010 FOR ASSESSMENT YEAR 2009- 10. GROUNDS OF APPEAL READ AS UNDER: 1. THE LEARNED CIT(A) ERRED IN SETTING ASIDE THE ISSUE TO THE A.O WITHOUT GRANTING RELIEF TO THE ASSESSEE. . / ITA NO. 3439/MUM/2012 ' ' ' ' / ASSESSMENT YEAR 2009-10 2 2. THE LEARNED CIT(A) ERRED IN NOT GRANTING REDUCT ION OF INCOME TO THE TUNE OF RS.2,26,00,000/- OUT OF THE ADVANCES RECEIV ED, TREATED AS INCOME OF THE APPELLANT EVEN THOUGH CONFIRMATION WAS GIVEN TO THE CIT(A). 3. THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISA LLOWANCE OUT OF SALARIES AND WAGES OF RS.1,86,55,342/- BEING 20% WI THOUT ANY REASONS WHATSOEVER OR MERE PRESUMPTION AND ASSUMPTIONS. 2. AT THE OUTSET IT WAS SUBMITTED BY LD. AR THAT GR OUND NO.1 AND 2 RELATE TO GRIEVANCE OF THE ASSESSEE REGARDING ADDITION OF RS.2,26,00,000/-. LD. CIT(A) HAS DISPOSED OF THIS GRIEVANCE OF THE ASSESSEE IN A VERY SUMMERY MANNER I.E. AS PER HIS OBSERVATION IN PARA 3.3. HE SUBMITTED T HAT LD. CIT(A) HAS DIRECTED THE AO TO CONSIDER THE APPLICATION FILED BY THE ASS ESSEE UNDER SECTION 154 OF THE INCOME TAX ACT, 1961 (THE ACT) AND DISPOSE OF T HE SAME EXPEDITIOUSLY. HE SUBMITTED THAT THE AO HAS DISPOSED OF THE SAID APPL ICATION OF THE ASSESSEE VIDE HIS ORDER DATED 26/3/2012 BY OBSERVING THAT D URING THE COURSE OF ASSESSMENT PROCEEDINGS THE DETAILS WERE NOT FURNISH ED AND THE INFORMATION FURNISHED AFTER COMPLETION OF ASSESSMENT CANNOT BE ENTERTAINED AND CANNOT FORM BASIS OF RECTIFICATION. HE SUBMITTED THAT A SSESSEE IS A CONTRACTOR AND A SUM OF RS.2,26,00,000/- WAS RECEIVED BY THE ASSESSE E FROM L&T AS CONTRACT RECEIPT ON WHICH TAX WAS DEDUCTED AND ASSESSEE HAS ALL THE MATERIAL TO SUBSTANTIATE THAT THE SAID RECEIPT WAS DULY ACCOUNT ED FOR IN THE BOOKS OF ACCOUNT AND INCOME WAS COMPUTED. HE IN THIS REGARD REFERRED TO RECONCILIATION OF ALL THE PAYMENTS, THE DETAILS OF WHICH ARE SUBMITTED IN THE PAPER BOOK FROM PAGES 18 TO 26. HE FURTHER SUBMITT ED THAT CONFIRMATION WAS ALSO OBTAINED FROM L&T HEAVY ENGINEERING CLEARLY SH OWING THAT ADVANCE AMOUNT OF RS.2,26,00,000/- WAS ADJUSTED AGAINST THE BILLS. THEREFORE, LD. AR SUBMITTED THAT THE MATTER MAY BE RESTORED BACK TO T HE FILE OF AO WITH A DIRECTION TO CONSIDER ALL THESE EVIDENCES AND RE-AD JUDICATE THE MATTER AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEA RING. . / ITA NO. 3439/MUM/2012 ' ' ' ' / ASSESSMENT YEAR 2009-10 3 3. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY CONSIDERED. ALL THE SUBMISSIONS MADE BEFORE US WER E ALSO SUBMITTED BEFORE LD. CIT(A) BUT HE DID NOT DISPOSE OF THE GRIEVANCE OF THE ASSESSEE. IT WAS THE CASE OF THE ASSESSEE THAT AO HAD GIVEN ONLY THREE D AYS TO SUBSTANTIATE THE CLAIM MADE BY THE ASSESSEE. THUS THERE WAS A LACK OF OPPORTUNITY AT THE LEVEL OF AO. LD. CIT(A) INSTEAD OF DISPOSING OF THE GRI EVANCE OF THE ASSESSEE HAS ONLY DIRECTED THE AO TO DISPOSE OF THE APPLICATION FILED BY THE ASSESSEE UNDER SECTION 154 EXPEDITIOUSLY. THE AO DENIED TO CONSIDER THE SUBMISSIONS OF THE ASSESSEE ON THE GROUND THAT SUBSEQUENT DOCUMENTS CANNOT BE C ONSIDERED UNDER SECTION 154 OF THE ACT. THUS THE ASSESSEE HAS REMAINED UNA BLE TO GET JUSTICE EITHER FROM AO OR FROM LD. CIT(A). THEREFORE, IN THE FACT S AND CIRCUMSTANCES OF THE CASE WE CONSIDER IT JUST AND PROPER TO RESTORE THIS MATTER TO THE FILE OF AO WITH A DIRECTION TO GIVE AMPLE AND SUFFICIENT OPPORTUNIT Y TO THE ASSESSEE TO PLACE ALL MATERIALS ON RECORD AND AFTER GIVING SUCH OPPORTUNI TY AND AFTER ASKING EXPLANATION OF THE ASSESSEE ON THE ISSUE, THE AO WI LL DISPOSE OF THIS ISSUE AS PER PROVISIONS OF LAW. WE DIRECT ACCORDINGLY. FOR STATISTICAL PURPOSES, GROUND NO.1 & 2 ARE CONSIDERED TO BE ALLOWED. 5. APROPOS GROUND NO.3, LD. AR SUBMITTED THAT THE G ROUND RELATES TO THE DISALLOWANCE MADE BY THE AO @20% OF THE TOTAL SALAR Y AT A SUM OF RS. 1,86,55,342/-. HE SUBMITTED THAT ASSESSEE HAS ALL T HE RECORDS TO SUBSTANTIATE THE CLAIM REGARDING THE PAYMENT OF SALARY. HE SUB MITTED THAT IF FIRST ISSUE IS RESTORED BACK TO THE FILE OF AO AS SUFFICIENT OPPO RTUNITY WAS NOT GIVEN, THEN THE SECOND ISSUE ALSO MAY BE RESTORED TO THE FILE OF AO IN THE SIMILAR MANNER. 6. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. CONSIDERING THE FACT THAT FIRST ISSUE IS RESTORED BACK TO THE FILE OF AO, WE CONSIDER IT JUST AND PROPER TO RESTORE THIS ISSUE ALSO TO THE FILE OF AO WITH SIMI LAR DIRECTION. WE DIRECT . / ITA NO. 3439/MUM/2012 ' ' ' ' / ASSESSMENT YEAR 2009-10 4 ACCORDINGLY. THIS GROUND IS ALSO CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 23/09/2013 2 . 01' # 3 45 23 /09/2013 1 . 6 % SD/- SD/- ( !' / N.K.BILLAIYA ) ( . . / I.P. BANSAL ) # / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 4 DATED 23 /09/2013 2 2 2 2 . .. . ,/78 ,/78 ,/78 ,/78 98'/ 98'/ 98'/ 98'/ / COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. : ( ) / THE CIT(A)- 4. : / CIT 5. 8;6 ,/ , , / DR, ITAT, MUMBAI 6. 6< = / GUARD FILE. 2 2 2 2 / BY ORDER, -8/ ,/ //TRUE COPY// > >> > / ? ? ? ? ) ) ) ) (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS