ASHISH INDUSTREIS, MUMBAI V. ITO WD 17(3)(1), MUMBAI

ITA 3894/MUM/2010

• Counselvise Citation: 389419914 RSA 2010
• Duration Of Justice: 1 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2000-2001
• Appeal Filed On: 13-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Reason to believe; Set aside
• Section: 147; 148

Judgement Text

1 ITA NO. 3894/MUM/2010 (ASST YEAR 2000-01) IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI A AA A BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI R S SYAL, AM R S SYAL, AM R S SYAL, AM R S SYAL, AM & SHRI & SHRI & SHRI & SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM ITA NO. 3894/MUM/2010 ITA NO. 3894/MUM/2010 ITA NO. 3894/MUM/2010 ITA NO. 3894/MUM/2010 (ASST YEAR 2000 (ASST YEAR 2000 (ASST YEAR 2000 (ASST YEAR 2000- -- -01) 01) 01) 01) M/S ASHISH INDUSTRIES 47 ESSA MANSION 26 BYCULLA STN ROAD BYCULLA MUMBAI 11 VS THE INCOME TAX OFFICER WARD 17(3)(1), MUMBAI ( (( (APPELLANT APPELLANT APPELLANT APPELLANT) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO.AAAFA2177Q AAAFA2177Q AAAFA2177Q AAAFA2177Q A SSESSEE BY SHRI PRAKASH JHUNJHUNWALA REVENUE BY SHRI K V SAMPATH KUMAR PER PER PER PER VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO, , , , JM JMJM JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 26.2.2010 OF THE CIT(A) RELATING TO AY 2000-01. 2 THE ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE G ROUNDS IN THIS APPEAL. I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE ASSESSING OFFICER ERRED ISSUING NOTICE U/S 148 WITHOUT HAVING A REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT HEREBY THE ASSESSMENT U/S 147 IS BAD IN LAW; II) ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD CIT(A) ERRED IN CONFIRMING THE ADDITIONS OF RS. 9,05,432/- WITHOUT ADJUDICATING THE CASE ON MERITS AND IGNORING THE ACT THAT THE ASSESSING OFFI CER HAD ERRONEOUSLY ASSUMED THE SUPPRESSED SALES. III) THE ASSESSING OFFICER ERRED IN GROSSLY IGNORIN G THE FACT THAT THE ALLEGATION OF POWER THEFT HAD BEEN TURNED DOWN BY A DDL SESSION COURT, THEREBY THE ESTIMATION OF SUPPRESSED PRODUCTIONS ER RONEOUS; IV) ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD CIT(A) ERRED IN ASSUMING THE SUPPRESSION OF PRODUCTION ON IGNORING THE FACT THAT ELECTRICITY CONSUMPTION CANNOT BE A SOLE FACTOR TO ESTIMATE THE PRODUCTION. 2 ITA NO. 3894/MUM/2010 (ASST YEAR 2000-01) 3 AT THE TIME OF HEARING, THE LD AR OF THE ASSESSEE HAS STATED THAT THE ASSESSEE DOES NOT PRESS GROUND NO.1 WHICH RELATES T O REOPENING OF THE ASSESSMENT AND THE SAME MAY BE DISMISSED AS NOT PRE SSED. THE LD DR HAS NO OBJECTION, IF THE GROUND NO.1 IS DISMISSED BEING NO T PRESSED. 4 ACCORDINGLY THE GROUND NO1 IS DISMISSED BEING NOT PRESSED. FURTHER, WE FIND THAT THIS ISSUE HAS BEEN DECIDED AGAINST THE A SSESSEE BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN ASSOCIATE IN ITA NO. 405 9 TO 4063/MUM/209 VIDE ORDER DATED 15.7.2010 . 5 GROUND NOS 2 TO 5 REGARDING ADDITION ON ACCOUNT O F SUPPRESSION OF PRODUCTION AND ESTIMATION OF SUCH SUPPRESSION OF PR ODUCTION. 6 WE HAVE HEARD THE LD AR AND THE LD DR AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED BY THE CIT(A) IN LIMINE FOR NON PROSECUTION. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THIS ISSUE OF ADDITION ON ACCOUNT OF SUPPRESSI ON OF PRODUCTION IN SALE HAS ALSO BEEN DECIDED BY THE COORDINATE BENCH OF THE TR IBUNAL IN THE CASE OF AN ASSOCIATE CONCERN OF THE ASSESSEE IN ITA NO.4059 TO 4063/MUM/29. HE HAS FILED A COPY OF THE ORDER OF THE TRIBUNAL AND SUBMITTED T HAT THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 3 ITA NO. 3894/MUM/2010 (ASST YEAR 2000-01) 6.1 ON THE OTHER HAND, THE LD DR RELIED ON THE ORD ERS OF THE AUTHORITIES BELOW. 7 AT THE OUTSET WE FIND THAT THE TRIBUNAL IN THE CA SE OF M/S BOON INDUSTRIES, AN ASSOCIATE CONCERN OF THE ASSESSEE IN ITA NO.4059 TO 4063/M/2009 HAS ADJUDICATED IDENTICAL ISSUE. HOWEVER, SINCE THE AP PEAL OF THE ASSESSEE HAS BEEN DISMISSED IN LIMINE BY THE CIT(A) WITHOUT GOING INT O THE MERITS OF THE CASE. ACCORDINGLY, WE SET ASIDE THE ISSUE TO THE RECORD O F THE CIT(A) FOR DECIDING THE APPEAL ON MERIT AFTER CONSIDERING THE DECISION OF T HE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S BOON INDUSTRIES (SUPRA ). 8 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THE 27 TH , DAY OF MAY 2011. SD/- SD/- ( (( ( R S SYAL R S SYAL R S SYAL R S SYAL ) )) ) ACCOUNTANT MEMBER ( (( ( VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO ) )) ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 27 MAY 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI