M/S. GROWMORE LEASING & INVT. LTD., MUMBAI V. DCIT, CC-31, MUMBAI

ITA 3740/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7927 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 1995-1996
• Appeal Filed On: 09-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Assessee Lawyers: K A SHETTI
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI D. K. AGARWAL, JM & SHRI R.K. PANDA, AM I.T.A. NO. 3740/MUM/2009 (ASSESSMENT YEAR 1995-96) I.T.A. NO. 3741/MUM/2009 (ASSESSMENT YEAR 1996-97) I.T.A. NO. 3539/MUM/2009 (ASSESSMENT YEAR 2000-01) M/S. GROWMORE LEASING & INVT. LTD., 32, MADHULI, 3 RD FLOOR, DR. ANNIE BESANT ROAD, NEHRU CENTRE, WORLI, MUMBAI-400 018 PAN: AAACG4397D VS. DY. CIT, CENTRAL CIRCLE 31, MUMBAI APPELLANT RESPONDENT APPELLANT BY: MR. VIJAY MEHTA & MR. K.A. SHETTI RESPONDENT BY: DR. P. DANIEL O R D E R DATE OF HEARING: 03.02.2010 DATE OF ORDER: 04.02.2010 PER R.K. PANDA, AM: THE ABOVE THREE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 13 TH MARCH, 2009, 13 TH MARCH, 2009 AND 18 TH MARCH, 2004 OF THE CIT(A), CENTRAL-IV, MUMBAI RELATING TO ASSESSMENT YEARS 1995-96, 1996-97 AND 2 000-01, RESPECTIVELY. SINCE COMMON GROUNDS ARE INVOLVED IN ALL THESE APPEALS, THEREFORE, THESE WERE HEARD TOGETHER AND A RE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF C ONVENIENCE. I.T.A. NOS. 3740 & 3741/MUM/2009 (A.YS. 1995-96 & 1 996-97): 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN TAKEN IN BOT H THESE APPEALS THE LEARNED COUNSEL FOR THE ASSESSEE DREW T HE ATTENTION OF THE BENCH TO GROUND NO. 5 IN BOTH THE APPEALS AND S UBMITTED THAT M/S. GROWMORE LEASING & INVT. LTD. ======================== 2 THIS IS THE EFFECTIVE GROUND IN WHICH THE ASSESSEE HAS CHALLENGED THE ORDER OF THE CIT(A) IN DISREGARDING THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE AND NOT ADMITTING THE SAME UNDER RULE 46A OF THE INCOME-TAX RULES, 1962 (THE RULES). REF ERRING TO A SERIES OF DECISIONS IN THE CASE OF OTHER GROUP CONCERNS, H E SUBMITTED THAT UNDER IDENTICAL FACTS AND CIRCUMSTANCES THE TRIBUNA L HAS RESTORED THE MATTER TO THE FILE OF THE CIT(A) FOR FRESH ADJU DICATION OF THE APPEAL AFTER ADMITTING THE ADDITIONAL EVIDENCE FILE D BY THE ASSESSEE BEFORE HIM. THEREFORE, BOTH THE APPEALS SHOULD BE RESTORED TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE THE I SSUE AFRESH AFTER ADMITTING THE ADDITIONAL EVIDENCES. 3. THE LEARNED DR, ON THE OTHER HAND, FAIRLY CONCEDED THE FACTS AS STATED BY THE LEARNED COUNSEL FOR THE ASSESSEE A ND SUBMITTED THAT THE ABOVE APPEALS HAVE TO BE RESTORED TO THE FILE O F THE CIT(A) FOR FRESH ADJUDICATION OF THE ISSUE IN THE LIGHT OF THE DIRECTION OF THE TRIBUNAL IN THE CASE OF OTHER SISTER CONCERNS. 4. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSESSEE WAS A NOTIFIED PERSON UNDER THE SPECIAL COURT (TRIAL OF O FFENCES RELATING TO TRANSACTIONS IN SECURITIES) ACT, 1992. THE ASSESSM ENTS IN THE ABOVE APPEALS WERE COMPLETED U/S. 144/147 OF THE INCOME-T AX ACT, 1961 (THE ACT). BEFORE THE CIT(A), THE ASSESSEE HAS POI NTED OUT VARIOUS DIFFICULTIES FOR WHICH THE VARIOUS DETAILS INCLUDIN G BOOKS OF ACCOUNT COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER. ACCORDINGLY IT WAS ARGUED THAT THE BOOKS OF ACCOUNT AND OTHER DETA ILS WHICH COULD NOT BE FILED BEFORE THE ASSESSING OFFICER SHOULD BE ADMITTED AS EVIDENCE FOR THE PURPOSE OF COMPUTATION OF INCOME U NDER THE PROVISIONS OF RULE 46A OF THE RULES. HOWEVER, THE CIT(A) DID NOT ACCEPT THOSE ADDITIONAL EVIDENCES. WE FIND THIS BE NCH OF THE TRIBUNAL IN ASSESSEES OWN CASE VIDE I.T.A. NO. 353 8/MUM/2009 (WHERE BOTH OF US ARE PARTIES) VIDE ORDER DATED 29 TH JANUARY, 2010 FOR THE A.Y. 1998-99 HAS RESTORED THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO ADMIT THE ADDITIONAL EVIDENCES AND DECIDE THE M/S. GROWMORE LEASING & INVT. LTD. ======================== 3 ISSUES ON MERIT. THE RELEVANT PARA OF THE ORDER OF THE TRIBUNAL READS AS UNDER: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF A.O AND CI T(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BE FORE US IN THE CASE OF THE SISTER CONCERNS. WE FIND TH AT THE LD. CIT(A) DID NOT ACCEPT THE ADDITIONAL EVIDENCES FILED BEFORE HIM AND PASSED THE ORDER. WE FIND UNDER IDENTICAL FACTS AND CIRCUMSTANCES THE CO-ORDINATE BENCHES OF THE TRIBUNAL IN THE CASE OF SISTER CONCE RNS OF THE ASSESSEE HAVE CONSIDERED THE ISSUE AND HAVE DIRECTED THE CIT(A) TO ADMIT ADDITIONAL EVIDENCES F ILED BEFORE HIM AND DECIDE THE ISSUE ON MERIT. RESPECTF ULLY FOLLOWING THE DECISIONS OF THE CO-ORDINATE BENCHES OF THE TRIBUNAL WE RESTORE THE MATTER TO THE FILE OF T HE CIT(A) WITH DIRECTION TO ADMIT THE ADDITIONAL EVIDE NCES FILED BEFORE HIM AND DECIDE THE ISSUE ON MERIT. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 5. FOLLOWING OUR OWN DECISION IN ASSESSEES OWN CASE F OR A.Y. 1998-99, WE RESTORE THE ISSUE TO THE FILE OF THE CI T(A) WITH A DIRECTION TO ADMIT THE ADDITIONAL EVIDENCES FILED B EFORE HIM AND DECIDE ALL THE ISSUES ON MERIT. NEEDLESS TO SAY, H E HAS TO GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. I.T.A. NO. 3539/MUM/2009 (A.Y. 2000-01): 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE GROUNDS RAISED IN THIS APPEAL ARE IDENTICAL TO THE GROUNDS RAISED IN I.T.A. NOS. 3740 & 3741/MUM/2009. REFERRING TO THE LETTER ADDRESSED TO THE CIT(A) ON 24 TH MARCH, 2008, HE DREW THE ATTENTION OF THE BENCH TO PARA 13 OF THE SAID LETTER AND SUBM ITTED THAT THE VARIOUS DIFFICULTIES FACED BY THE ASSESSEE WERE BRO UGHT TO THE NOTICE OF THE CIT(A) AND THE BOOKS OF ACCOUNT ALONG WITH C OMPUTATION OF INCOME WERE FILED BEFORE THE CIT(A) AS EVIDENCES WH ICH WERE NOT EXAMINED BY THE ASSESSING OFFICER. REFERRING TO TH E LETTER DATED 23 RD M/S. GROWMORE LEASING & INVT. LTD. ======================== 4 SEPTEMBER, 2008 ADDRESSED TO THE CIT(A), HE SUBMITT ED THAT THE ASSESSEE AGAIN HAS BROUGHT TO THE NOTICE OF THE CIT (A) THE VARIOUS REASONS FOR NON FURNISHING OF THE BOOKS OF ACCOUNT BEFORE THE ASSESSING OFFICER WITH A REQUEST TO ADMIT THE ADDIT IONAL EVIDENCES. REFERRING TO PARA 6 OF THE CIT(A)S ORDER HE SUBMIT TED THAT HE HAS MENTIONED IN THE BODY OF THE ORDER THAT THE ASSESSE E HAS MADE A SUBMISSION THAT IF THE EVIDENCES ARE TAKEN ON RECOR D, THE HIGH PITCHED DEMAND OF INTEREST AND TAX WILL BE DELETED. HE ACCORDINGLY REQUESTED THAT SINCE THE FACTS AND CIRCUMSTANCES AR E IDENTICAL TO THE FACTS AND CIRCUMSTANCES IN I.T.A. NOS. 3740 & 3741/ MUM/2009, THIS APPEAL ALSO SHOULD BE RESTORED TO THE FILE OF THE C IT(A) WITH A DIRECTION TO ADMIT THE ADDITIONAL EVIDENCE AND DECI DE THE ISSUE ON MERIT. 7. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THAT N EITHER IN THE CIT(A)S ORDER NOR IN THE TWO LETTERS ADDRESSED TO HIM CONTAIN SUBMISSIONS OF THE ASSESSEE THAT THE BOOKS OF ACCOU NT WERE PRODUCED. THEREFORE, THIS APPEAL IS NOT IDENTICAL TO THE OTHER TWO APPEALS. HE ACCORDINGLY RELIED ON THE ORDER OF THE CIT(A). 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE ASSESSEE VIDE ITS LETTER DATED 24 TH MARCH, 2008 AT PARA 13 HAS REQUESTED THE CIT(A) THAT THE BOOKS OF ACCOUNT FOR THE YEAR UNDER CONSIDERATION AND THE COMPUTATION OF INCOME ARE ENCLOSED WHICH AR E NOT EXAMINED BY THE ASSESSING OFFICER. WE FIND THE ASS ESSEE VIDE ITS LETTER DATED 27 TH SEPTEMBER,2008 ADDRESSED TO THE CIT(A) AT PARA 1 HAS MENTIONED THAT THEY ARE FILING HEREWITH THE ADD ITIONAL EVIDENCES WHICH MAY KINDLY BE PLACED ON RECORD AND CONSIDER B EFORE DECIDING THE PRESENT APPEAL. WE FIND THE CIT(A) HAS NOT DEC IDED THE ISSUE ON THE BASIS OF THE VARIOUS EVIDENCES FILED BEFORE HIM . UNDER THESE FACTS AND CIRCUMSTANCES AND FOLLOWING OUR DECISION IN I.T.A. NOS. 3740 & 3741/MUM/2009 AT PARA 5 ABOVE, WE RESTORE TH IS APPEAL TO M/S. GROWMORE LEASING & INVT. LTD. ======================== 5 THE FILE OF THE CIT(A) WITH A DIRECTION TO ADMIT TH E ADDITIONAL EVIDENCES FILED BEFORE HIM AND DECIDE THE ISSUES ON MERIT. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSE E ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 4 TH FEBRUARY, 2010 SD/- (D.K. AGARWAL) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 4 TH FEBRUARY, 2010 COPY TO: (1) THE APPELLANT, (2) THE RESPONDENT, (3) THE CIT(A), CENTRAL-IV, MUMBAI, (4) THE CIT, CENTRAL-II, MUMBAI, (5) THE DR, G BENCH, ITAT, MUMBAI. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI TPRAO