ITO 23(2)(4), MUMBAI V. MAHESH V. CHANDWANI, MUMBAI

ITA 3707/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1421 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 23-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 10-05-2013
• Court: TRIBUNAL
• Assessee Lawyers: DR K SHIVRAM
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.3707/MUM/2013 ASSESSMENT YEARS: 2009-10 INCOME TAX OFFICER - 23(2)(4) BLDG. NO.C-10, 02 ND FLOOR, ROOM NO.201, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 / VS. SHRI MAHESH V. CHANDWANI, A, 19, INDRAPRASTHA SOCIETY, SARVODAYA NAGAR, JAIN, MANDIR ROAD, MULUND (WEST), MUMBAI-400080 ( / REVENUE) ( ! ' /ASSESSEE) PA NO.:-AAAPC4003B ITA NOS.3707 & 3747/MUM/2013 SHRI MAHESH V. CHANDWANI 2 ITA NO.3747/MUM/2013 ASSESSMENT YEARS: 2009-10 SHRI MAHESH V. CHANDWANI, A, 19, INDRAPRASTHA SOCIETY, SARVODAYA NAGAR, JAIN, MANDIR ROAD, MULUND (WEST), MUMBAI-400080 / VS. INCOME TAX OFFICER - 23(2)(4) BLDG. NO.C-10, 02 ND FLOOR, ROOM NO.201, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 ( ! ' / ASSESSEE) ( / REVENUE) PA NO.:-AACCP6245F ! ' / ASSESSEE BY DR. K. SHIVRAM / REVENUE BY SHRI SUMAN KUMAR-DR ' ( ) ' * / DATE OF HEARING : 05/04/2017 ) ' * / DATE OF ORDER: 07/04/2017 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE AS WELL AS ASSESSEE IS IN CROSS APPEAL AGAINST THE IMPUGNED ORDER DATED 08/03/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI. 2. DURING HEARING OF THESE APPEALS, SHRI SUMAN KUMAR, LD. DR, STRONGLY CONTENDED THAT BOTH THESE A PPEALS REQUIRES RECONSIDERATION AT THE HANDS OF THE LD. AS SESSING OFFICER. ON THE OTHER HAND, DR. K. SHIVRAM, LD. SR. ADVOCATE ALONG WITH SHRI RAHUL K. HAKANI, FAIRLY AGREED WITH THE CONTENTION OF THE LD. DR THAT THE ISSUE/ISSUES REQU IRES RECONSIDERATION. ITA NOS.3707 & 3747/MUM/2013 SHRI MAHESH V. CHANDWANI 3 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE AP PEAL OF THE ASSESSEE, CONFIRMING THE ADDITION OF RS.34,50,0 00/- MADE U/S 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTE R THE ACT), BEING LOAN TAKEN FROM ELEVEN PARTIES HAS BEEN CHALLENGED. IT WAS CONTENDED THAT THE FACTS WERE NO T PROPERLY APPRECIATED BY THE ASSESSING OFFICER AS WE LL AS BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AS THE LENDERS HAVE CONFIRMED THE TRANSACTION AND CONFIRMATION WER E FILED ALONG WITH COPIES OF THE PAN, INCOME TAX RETURNS OF THE PARTIES ALONG WITH OTHER DETAILS, REQUIRED BY THE A SSESSING OFFICER. IN THE CASE OF THE REVENUE, THE DEPARTMENT HAS CHALLENGED DELETION OF ADDITION OF RS.1,46,81,000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED/UNSECURED LOANS AS THERE WAS NO BASIS T O HOLD THAT THE OTHER PARTIES WERE ALSO NOT CAPABLE OF ADV ANCING ANY LOAN TO THE ASSESSEE. IN THE LIGHT OF THIS ARGU MENT AND THE MATERIAL EVIDENCE AVAILABLE ON RECORD, WE ARE O F THE CONSIDERED OPINION, AS AGREED BY LD. REPRESENTATIVE S FROM BOTH SIDES THAT THE ISSUES REQUIRES RECONSIDERATIO N AT THE LEVEL OF THE ASSESSING OFFICER. THE ASSESSEE IS DIR ECTED TO ESTABLISH THE GENUINENESS OF THE LOAN TRANSACTION A LONG WITH THE IDENTITY AND CREDITWORTHINESS OF THE PARTIES. THE LD. ASSESSING OFFICER IS DIRECTED TO EXAMINE THE CLAIM OF THE ASSESSEE AND DECIDE AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD. ITA NOS.3707 & 3747/MUM/2013 SHRI MAHESH V. CHANDWANI 4 3. IN THE APPEAL OF THE REVENUE, THE ADDITION OF RS.27,71,715/- MADE ON ACCOUNT OF VALUATION OF CLOS ING STOCK BY ADOPTING CONTRADICTORY STAND FROM THE APPE LLATE DECISION FOR ASSESSMENT YEAR 2007-08 HAS BEEN CHALL ENGED. CONSIDERING THE TOTALITY OF FACTS AND THE CIRCUMSTA NCES NARRATED BEFORE US, THIS GROUND IS ALSO REMANDED BA CK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDIC ATION. THUS, THE APPEAL OF THE ASSESSEE AS WELL AS OF THE REVENU E IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, BOTH THE APPEALS ARE ALLOWED FOR STATISTIC AL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 05/04/2017. SD/- SD/- ( RAMIT KOCHAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ' ( MUMBAI; + DATED : 07/04/2017 F{X~{T? P.S / , %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. -./0 / THE APPELLANT 2. 12/0 / THE RESPONDENT. 3. 3 3 ' 4' ( -. ) / THE CIT, MUMBAI. 4. 3 3 ' 4' / CIT(A)- , MUMBAI 5. 56 1' , 3 -.* - 7 , ' ( / DR, ITA NOS.3707 & 3747/MUM/2013 SHRI MAHESH V. CHANDWANI 5 ITAT, MUMBAI 6. 8 9( / GUARD FILE. / BY ORDER, 25.' 1' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI,