M/S HEALTY PROTEINS (INDIA) LIMITED, MUMBAI V. THE ITO 1(2)3, MUMBAI

ITA 366/MUM/2011

• Counselvise Citation: 36619914 RSA 2011
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 26-08-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G M MAKWANA
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO.366/MUM/2011 ASSESSMENT YEAR : 2003-04 HEALTHY PROTEINS (INDIA) LIMITED MAKER BHAVAN NO.1,2 ND FLOOR SIR V.T. MARG MUMBAI-400 020. PAN NO.AAACM 4321 P VS. INCOME TAX OFFICER - 1(2)(3) AAYAKAR BHAVAN M.K. ROAD MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. GOPAL REVENUE BY : SHRI G .M. MAKWANA DATE OF HEARING : 29/08/2013 DATE OF PRONOUNCEMENT : 06 / 0 9 /2013 O R D E R PER B. RAMAKOTAIAH, AM: THIS IS AN APPEAL BY ASSESSEE AGAINST THE EXPARTE ORDER PASSED BY THE ASSESSING OFFICER DATED 28/10/2005 AND CIT(A) DATED 15/09/2010 FOR THE ASSESSMENT YEAR 2003-04. 2. IN THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTI CED THAT ASSESSEE WAS CARRIED FORWARD SUNDRY CREDITORS RS.17,33,401/- FROM EARLIER YEARS AND ALSO DEBTORS TO THE TUNE OF RS.7,57,915/-. SINC E THERE WAS NO RESPONSE FROM THE ASSESSEE IN EXPLAINING CREDITORS, AO BROUGHT TO TAX THE NET AMOUNT OF RS.9,75,486/- U/S. 41(1). BEFORE THE LD. CIT(A) ASSESSEE APPEARED AND FILED ADDITIONAL EVIDENCE, WHICH WERE REMANDED TO AO. HOWEVER, THE LD. CIT(A) ON VARIOUS LEGAL PRINCIPLES UPHELD THE ORDER OF AO WITHOUT MENTIONING ABOUT EITHER ADDITIONAL EVIDENCE OR REMAND REPORT OF AO. ITA NO.366/M/11 A.Y.03-04 2 3. AT THE OUTSET THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE COULD NOT APPEAR BEFORE AO AT THE SAID POINT OF TIME BECAUSE OF FINANCIAL DIFFICULTIES OF THE COMPANY AND WHEN DETAILS WERE FILED BEFORE T HE CIT(A) THESE WERE NOT CONSIDERED. IT WAS THE PRAYER OF THE LD. COUNSE L THAT OPPORTUNITY MAY BE GIVEN TO THE EXPLAIN THE CREDITS WHICH ARE IN FA CT CARRIEDFORWARD IN THE BOOKS OF ACCOUNT AND CONFIRMATION FROM THOSE PARTIE S ARE AVAILABLE. 4. AS SEEN FROM THE EXPARTE ORDER OF AO, CARRIED FO RWARD CREDIT BALANCE WAS TREATED AS INCOME U/S. 41(1), WITHOUT E XAMINING WHETHER THERE IS ANY CESSATION OF LIABILITY. INSTEAD OF CON SIDERING THE ENTIRE CREDITS, HE ALSO REDUCED THE AMOUNT OF DEBIT BALANC E AVAILABLE AND ADDED ONLY NET AMOUNT. AS SEEN FROM THE ORDER OF CIT(A) H IS PREDECESSOR HAS REMANDED THE MATTER TO AO BUT RESULT OF REMAND REPO RT WAS NOT KNOWN AND COPY OF THE REMAND REPORT WAS NOT FURNISHED TO ASSESSEE. LD. CIT(A) CONFIRMED ADDITION ON LEGAL PRINCIPLES, WITHOUT EXA MINING FACTS. IN THE INTEREST OF JUSTICE WE ARE OF THE OPINION THAT THE ASSESSEE SHOULD BE GIVEN OPPORTUNITY TO EXPLAIN THE ABOVE AMOUNTS. THEREFORE , WITHOUT GOING INTO THE MERITS OF THE ACTION OF AO AND CIT(A), WE RESTO RE THE ASSESSMENT PROCEEDINGS TO THE EXTENT EXAMINING THE CREDIT BALA NCES TO THE FILE OF AO. THE ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY AND AS SESSING OFFICER IS DIRECTED TO COMPLETE THE ASSESSMENT AFTER DUE EXAMI NATION OF FACTS AND ACCORDING TO LAW. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH SEPTEMBER, 2013. SD/- SD/- (DR. S.T.M. PAVALAN ) JUDICIAL MEMBER (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER MUMBAI, DATED: 06/09/2013. JV. ITA NO.366/M/11 A.Y.03-04 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.