RUKHMINI M IYER ( PROP P.P. INTERNATIONAL), MUMBAI V. ASST CIT 25(3), MUMBAI

ITA 3662/MUM/2012

• Counselvise Citation: 366219914 RSA 2012
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-01-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV JAIN
• Assessee Lawyers: HARESH P SHAH
• Keywords: Principle of natural justice; Additional evidence
• Section: 143(3)

Judgement Text

, MH MHMH MH INCOME TAX APPELLATE TRIBUNAL MUMB AI - D BENCH MUMBAI . . , / ! ! ! ! , BEFORE S/SH.B.R.MITTAL,JUDICIAL MEMBE R & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO. 3662/MUM/2012, ' ' ' ' # # # # / ASSESSMENT YEAR 2008-09 RUKHMINI M IYER (PROP P.P. INTERNATIONAL) 1002, DOLL APARTMENTS, BHATT LANE, KANDIVILI WEST, MUMBAI-400067 VS. ASST CIT 25(3) BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI. PAN: AABPO1931A ( $% / ASSESSEE ) ( &'$% / RESPONDENT) $% $% $% $% ( (( ( ) ) ) ) / ASSESSEE BY : SHRI HARESH P. SHAH &'$% ( ) / RESPONDENT BY : SHRI SANJEEV JAIN ' ' ' ' ( (( ( +, +, +, +, / DATE OF HEARING : 07 . 01 .201 4 -.# ( +, / DATE OF PRONOUNCEMENT : 07 . 01 .201 4 ' ' ' ' , 1961 ( (( ( 254 )1( +/+ +/+ +/+ +/+ 0 0 0 0 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,A.M: CHALLENGING THE ORDER DATED 03.02.2011 OF THE CIT(A )-35, MUMBAI,ASSESSEE HAS FILED FOLLOWING GROUNDS OF APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF REGISTRATION CHARGES AMOUNTING TO R S. 35,55,000/- WHICH IS PAID SUBSEQUENTLY. 2. THE ORDER OF THE LEARNED CIT(A) IS AGAINST THE WEIG HT OF EQUITY, NATURAL JUSTICE AND GOOD CONSCIENCE. 3. THE APPELLANT RESERVES THE RIGHT TO ADD, ALTER, AME ND, DELETE AND MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE FINAL HEARING. 2. ASSESSEE, AN INDIVIDUAL,ENGAGED IN THE BUSINESS OF EXPORT OF PHARMACEUTICAL PRODUCTS FILED HER RETURN OF INCOME ON 30.09.2008 DECLARING TOTAL INCOME OF RS. 40.36 LACS.AO FINALISED THE ASSESSMENT ON 14.12.2010 U/S. 143(3) OF THE ACT DET ERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 1.21 CRORES. EFFECTIVE GROUND OF APPEAL IS ABOUT DISALLOWANCE OF REGISTRATION CHARGE AMOUNTING TO RS. 35.55 LACS. DURING THE ASSESSMENT PROCEEDINGS, ASSESSING OFFICER(AO) FOUND THAT ASSESSEE HAD DEBITED RS. 35,55,000/-TOWARDS REGISTRATION CHARGES. AO CAL LED FOR DETAILS IN THIS REGARD. IT WAS SUBMITTED BY THE ASSESSEE THAT REGISTRATION CHARGES PROVIDED FOR THE YEAR UNDER CONSIDERATION WAS PAYABLE TO HIL DRUGS/HOODIE INVESTMENTS LTD., THAT BEFORE EXPORTING ANY PHARMACEUTICAL PRODUCTS TO ANY COUNTRY ONE HAD TO REGISTER THE PRO DUCT WITH THE GOVERNMENT OF THAT COUNTRY, THAT ONLY AFTER REGISTERING THE PRODUCT WITH THE GOVERNM ENT OF THAT COUNTRY, GOODS COULD BE EXPORTED, THAT FOR REGISTERING THE PRODUCT THE CUSTOMER HAD T O GO TO THAT COUNTRY, THAT ASSESSEE HAD MADE AN 2 ITA NO. 3662/MUM/2012 RUKHMINI M IYER UNDERSTANDING WITH THE CUSTOMER, THAT AS PER THE UN DERSTANDING THE CUSTOMER HAD TO GET THE PRODUCT REGISTERED WITH THE GOVERNMENT, THAT CUSTOM ER WAS TO CHARGE USD 5000 PER PRODUCT AS REGISTRATION CHARGES, THAT DURING YEAR CUSTOMER HAD REGISTERED 18 PRODUCTS FOR AND ON BEHALF OF THE ASSESSEE, THAT THE ASSESSEE HAD MADE PROVISION OF USD$ 90,000 AGAINST REGISTRATION CHARGES. 2.1 AFTER CONSIDERING THE SUBMISSION OF THE ASSESSE E, AO HELD THAT ASSESSEE WAS NOT ABLE TO GIVE ANY EXPLANATION AS TO WHY THE EXPENSES UNDER THE HE AD REGISTRATION CHARGE WERE PAYABLE AT THE END OF THE YEAR, THAT ASSESSEE HAD NOT ESTABLIS HED AS TO WHEN THE PAYMENTS WERE ACTUALLY MADE. HE HELD THAT LIABILITY TOWARDS REGISTRATION E XPENSES AND ITS SUBSEQUENT SETTLEMENT HAD NOT BEEN SUBSTANTIATED. AS A RESULT, HE DISALLOWED AN A MOUNT OF RS. 35.55 LACS TOWARDS REGISTRATION CHARGES. 3. ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPEL LATE AUTHORITY(FAA). DURING THE APPELLATE PROCEEDING, ASSESSEE REQUESTED THE FAA TO ADMIT ADD ITIONAL EVIDENCES. IT WAS SUBMITTED THAT THE DOCUMENTS TO BE PRODUCED BEFORE THE AO WERE NOT TRA CEABLE DUE TO SHIFTING OF OFFICE, THAT CIRCUMSTANCES WERE BEYOND THE CONTROL OF THE ASSESS EE, THAT THE FRESH EVIDENCE SHOULD BE ADMITTED. REFERRING TO THE PROVISIONS OF RULE 46A O F THE INCOME TAX RULES, 1962 (RULES), FAA HELD THAT ASSESSEE WAS NOT PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCES BEFORE THE AO. AS A RESULT, DOCUMENTS SUBMITTED BY THE ASSESSE E WERE NOT CONSIDERED BY HIM AND ADDITION MADE BY THE AO, WITH REGARD TO REGISTRATION CHARGES , WAS UPHELD. 4. BEFORE US, AN APPLICATION WAS MADE BY THE ASSESS EE TO ADMIT ADDITIONAL EVIDENCES ALONG WITH THE APPLICATION SUBMITTED TO THE FAA AND THE DOCUME NTS RELATED TO REGISTRATION CHARGES AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE SUBM ITTED THAT FAA HAD REFUSED TO ADMIT THE DOCUMENTS THAT WERE VITAL TO DECIDE THE ISSUE, DOCU MENTS COULD NOT BE SUBMITTED BEFORE THE AO BECAUSE OF SHIFTING OF OFFICE AND NON-AVAILABILITY OF THE PAPERS AT THE TIME OF ASSESSMENT PROCEEDINGS. DEPARTMENTAL REPRESENTATIVE (DR) SUBMI TTED THAT ASSESSEE HAD FAILED TO PRODUCE THE EVIDENCES BEFORE THE AO. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE ARE AWARE THAT IT IS THE DUTY OF THE ASSESSEE TO PRODUCE THE DOCUMENT ARY EVIDENCES AT THE FIRST AVAILABLE OPPORTUNITY. WE FIND THAT ASSESSEE HAD NOT PRODUCED THE DOCUMENTS BEFORE THE AO, BUT HAD MADE AN APPLICATION BEFORE THE FAA FOR ADMISSION OF FRESH EVIDENCES. IT WAS SUBMITTED THAT BECAUSE OF SHIFTING OF OFFICE DOCUMENTS COULD NOT B E PRODUCED DURING THE ASSESSMENT PROCEEDING.WE ARE OF THE OPINION IN THE INTEREST OF JUSTICE THESE DOCUMENTS SHOULD BE CONSIDERED TO DETERMINE THE TAX LIABILITY OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. THEREFORE, IN THE INTEREST OF JUSTICE WE REMITTING BACK THE MATTER TO THE FILE OF THE AO TO PASS A FRESH ORDER AFTER ADMITTING THE ADDITIONAL EVIDENCES PRODUCED BEFORE US AND AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, SUBJECT TO PAYMENT OF COST OF RS. 5000/-. WE WANT TO CLARIFY THAT WE ARE NOT DECIDING THE ISSUE ON MERIT S. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS A LLOWED FOR STATISTICAL PURPOSES. 1 2 '1+ 3 4 5( 67 8 9+ ( + :;. ORDER PRONOUNCED IN THE OPEN COURT TODAY I.E. 7 TH JANUARY, 2014. 0 ( -.# = VKT VKTVKT VKT 7 TUOJH] TUOJH] TUOJH] TUOJH] 2014 . ( /. SD/- SD/- ( . . . B.R.MITTAL ) ( ! ! ! ! / RAJENDRA ) / JUDICIAL MEMBER /ACCOUNTANT MEMBER 3 ITA NO. 3662/MUM/2012 RUKHMINI M IYER / MUMBAI, >' /DATE: 07.01.2014 SK 0 0 0 0 ( (( ( &+? &+? &+? &+? @ ?#+ @ ?#+ @ ?#+ @ ?#+ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / $% 2. RESPONDENT / &'$% 3. THE CONCERNED CIT(A)/ A B , 4. THE CONCERNED CIT / A B 5. DR D BENCH, ITAT, MUMBAI / ?C/ &+' MH MHMH MH , . . . 6. GUARD FILE/ / D . '?+ &+ //TRUE COPY// 0' / BY ORDER, 6 / : DY./ASST. REGISTRAR , /ITAT, MUMBAI.