ASB INTERNATIONAL, MUMBAI V. DCIT 17(3), MUMBAI

ITA 3543/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48538 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 05-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRAVAN KUMAR
• Assessee Lawyers: MRUGAKSHI K JOSHI
• Keywords: Unexplained expenditure; Principle of natural justice
• Section: 271(1)(c); 69C; 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI R,S. SYAL, A.M. AND SHRI V. DURGA RAO, J.M. ITA NO. 3543/MUM/2010 ASSESSMENT YEAR: 2003-04 M/S ASB INTERNATIONAL APPELLANT 37, BARRISTER NATH PAI MARG, COTTON GREEN, MUMBAI 400 033. (PAN AAEFA 6848 C) VS. DY. COMMISSIONER OF INCOME-TAX, RESPONDENT 17(3), MUMBAI. APPELLANT BY : MS. MRUGAKSHI K. JOSHI RESPONDENT BY : MR. SHRAVAN KUMAR . ORDER PER V. DURGA RAO, J.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A)- 29, MUMBAI, PASSED ON 26/02/2010 FOR THE AS SESSMENT YEAR 2003-04 WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUND OF APPEAL:- THIS IS AN APPEAL AGAINST THE ORDER PASSED U/S 250 BY THE CIT, APPEALS-XXIX, WHO HAS ERRED IN 1. CONFIRMING THE PENALTY OF RS. 36,750/- LEVIED BY THE ASSESSING OFFICER BY DISMISSING THE APPEAL OF THE ASSESSEE EV EN THOUGH THE ISSUE OF ADDITION HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSMEN T WAS COMPLETED U/S 143(3) OF THE ACT ON 24/03/06 DETERMINING THE T OTAL INCOME AT RS. 49,33,540/- AS AGAINST THE RETURNED INCOME DECLARED AT RS. 30,51,372/- WHEREIN INTERALIA AN AMOUNT OF RS. 1,00 ,000/- WAS TREATED AS UNEXPLAINED EXPENDITURE U/S 69C ON RUNNI NG OF MOTOR CAR ITA NO. 3543/M/2010 M./S ASB INTERNATIONAL 2 FOR BUSINESS PURPOSES AND ADDED BACK TO THE ASSESSE ES TOTAL INCOME. THEREAFTER, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) ON THE GROUND THAT THE HAD CONCEALED THE PARTICULARS OF HIS INCOME AND LEVIED PENALTY OF RS. 36,750/- U/S 271( 1)(C) AGAINST THE ADDITION ON ACCOUNT OF VEHICLE EXPENSES. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). 3. THE CIT(A) HELD THAT THE ASSESSEE WAS ALLOWED SE VERAL OPPORTUNITIES OF BEING HEARD, BUT IT DID NOT COMPLY AND, HENCE, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOLLOWI NG JUDGMENT IN THE CASE OF CIT VS. MULTIPLAN INDIA (PVT.) LTD., 38 ITD 320. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE MATERIAL ON RECORD AS WELL AS GONE THRO UGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE CIT(A) DISM ISSED THE APPEAL FOR NON-COMPLIANCE BY THE ASSESSEE AGAINST THE NOTICES ISSUED U/S 250 OF THE ACT ON VARIOUS DATES MENTIONED AT PAGE 1 BY THE CIT(A) IN HIS ORDER. WE ARE OF THE VIEW THAT THE CIT(A) DOES NOT HAVE POWER TO DISMISS THE APPEAL FOLLOWING THE JUDGMENT IN THE C ASE OF MULTIPLAN INDIA (PVT.) LTD. (SUPRA). THEREFORE, IN THE INTER EST OF NATURAL JUSTICE AND TO MEET THE ENDS OF JUSTICE, WE REMIT THE MATTE R BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL, O N MERIT, AFTER HEARING THE ASSESSEE. THE ASSESSEE IS DIRECTED TO C OMPLY WITH NOTICES OF THE CIT(A) TO DISPOSE OF THE APPEAL. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 29 TH APRIL, 2011. SD/- SD/- (R.S.SYAL) (V. DURGA R AO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: APRIL, 2011 ITA NO. 3543/M/2010 M./S ASB INTERNATIONAL 3 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, A BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV