ACIT RG 4(1), MUMBAI V. CHANNEL GUIDE INDIA P.LTD, MUMBAI

ITA 3969/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3718 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-04-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 13-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; Opportunity of being heard
• Section: 68; 144

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENC H, MUMBAI . . , . , ! ' BEFORE SHRI I.P. BANSAL, JM AND SHRI D. KARUNAKARA RAO, AM ./I.T.A. NO. 3969/M/2011 ( # $ %$ / ASSESSMENT YEAR : 2007-2008) ACIT - 4(1), 6 TH FLOOR, ROOM NO. 640, AAYAKAR BHAVAN, MUMBAI 400 053. # / VS. CHANNEL GUIDE INDIA P. LTD., A-203, GREEN VILLA, LOKHANDWALA COMPLEX, ANDHERI (W), MUMBAI-400 053. & ! ./PAN :AAACB 4506 D ( &' /APPELLANT) .. ( ()&' / RESPONDENT) &' * + / APPELLANT BY : SHRI RAJARSHI DWIVEDY, SR. DR ()&' * + / RESPONDENT BY : NONE # * ,! /DATE OF HEARING : 16.04.2013 -.% * ,! /DATE OF PRONOUNCEMENT : 08/05/2013 / / / / / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 13.5.2011 IS AG AINST THE ORDER OF CIT (A)- 10, MUMBAI FOR THE ASSESSMENT YEAR 2007-2008. 2. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROU NDS WHICH READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD CIT (A) ERRED IN RESTRICTING THE DISALLOWANCE IN RESPECT OF EXPENSES DEBITED TO THE PROFIT & LOSS ACCOUNT TO 2% OF THE EXPENDITURE OF RS. 31,15,397/- . 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD CIT (A) ERRED IN RESTRICTING THE DEPRECIATION AMOUNT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD CIT (A) ERRED IN DELETING 25% DISALLOWANCE OF DEPRECIATION MADE BY T HE AO. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE ADDITION @ 25% OF CASH CREDIT AMOUNT MADE BY THE AO. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE IMPUGNED ORDER OF THE LD CIT (A) IN CONTRARY TO LAW AND CONS EQUENTLY MERITS TO BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE TH AT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PRODUCTION, BROADCASTING, FINANCING & COMMISSION AGENT. ASSESSEE 2 FILED THE RETURN DECLARING THE TOTAL INCOME OF RS. 34,74,494/-. AS A RESULT OF SCRUTINY ASSESSMENT, AO DETERMINED THE TOTAL INCOME AT RS. 6 9,56,420/-. DURING THE ASSESSMENT PROCEEDINGS, AO MADE CERTAIN ADDITIONS / DISALLOWANCES U/S 68 OF THE ACT AMOUNTING TO RS RS.21,25,000/-; DISALLOWANCE OF CLAIM OF DEPRECIATION OF RS.11,25,422/- AND THE ADDITION OF RS. 2,31,501/- W AS MADE IN THE ABSENCE OF ANY SUPPORTING DOCUMENTS FOR EXPENSES BY PASSING AN ORD ER U/S 144 OF THE ACT. AGGRIEVED, ASSESSEE FILED AN APPEAL BEFORE THE FIRS T APPELLATE AUTHORITY. 4. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLAT E AUTHORITY, AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE, CIT (A) HAS P ARTLY ALLOWED THE ASSESSEES APPEAL. 4.1. AGGRIEVED WITH THE DECISION OF THE CIT (A), RE VENUE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE ABOVE MENTIONED GROUNDS. 5. DURING THE PROCEEDINGS BEFORE US LD DR BROUGHT T O OUR NOTICE THAT THE IMPUGNED ORDER OF THE CIT (A) HAS NOT DELIBERATED O N THE SUBMISSIONS AND CONSIDERED THE EVIDENCES FURNISHED WHILE ALLOWING T HE ASSESSEES SUBMISSIONS. IN THIS REGARD, HE MENTIONED THAT THE SAID ORDER OF TH E CIT (A) CANNOT BE DESCRIBED AS A SPEAKING ORDER AND FURTHER, HE ARGUED STATING THAT ON APPEAL OF T HIS NATURE, THE ORDER SHOULD BE A SPEAKING ORDER, DETERMINING T HE ISSUES BY GIVING THE REASONS AND DECIDING THE ISSUES ON THE FACE OF THE ORDER OF THE CIT (A). HE ALSO MENTIONED THAT THE SAID ORDER OF THE CIT (A) IS NOT IN ACCORD ANCE WITH THE PROVISIONS OF SECTION 250(6) OF THE ACT. FURTHER, LD COUNSEL REQUESTED T HAT THE ORDER OF THE CIT (A) MAY BE SET ASIDE AND THE GROUNDS MAY BE REMANDED TO THE FILES OF THE CIT (A) FOR ADJUDICATION OF THE ISSUE AFRESH FOR WANT OF A SPEA KING ORDER ON EACH OF THE ISSUES AND ARGUMENTS RAISED BY THE ASSESSEE. 6. ON THE OTHER HAND, NONE APPEARED ON BEHALF OF TH E ASSESSEE TO REPRESENT THE CASE. 7. WE HAVE HEARD THE LD DR AND PERUSED THE ORDERS O F THE REVENUE AUTHORITIES. ON PERUSAL OF THE IMPUGNED ORDER OF CIT (A), IT IS OUR OBSERVATION TOO THAT THE CIT 3 (A) MECHANICALLY RELIED ON THE ORDER OF THE AO INST EAD OF DETAILING THE ISSUES AND ADJUDICATING THEM BY GIVING REASONS FOR REJECTING T HE ARGUMENTS OF THE ASSESSEE AND DISMISSING THE EVIDENCES FURNISHED BY THE ASSESSEE. THERE IS NEED FOR CIT (A) TO ADJUDICATE THE ISSUE ONLY IN ACCORDANCE WITH THE PR OVISIONS OF SECTION 250(6) OF THE ACT, WHICH MUST BE STRICTLY FOLLOWED. HIS ORDER BEI NG AN APPEALABLE ONE, IN OUR VIEW, IT MUST BE A SPEAKING ORDER AND SHOULD CONTAIN THE REASONING AND LOGIC FOR SUSTAINING / DELETING THE ADDITIONS MADE BY THE AO. FROM THAT POINT VIEW, WE ARE OF THE OPINION THAT THE IMPUGNED ORDER CANNOT BE CALLE D AS A SPEAKING ORDER AND THEREFORE, WE SET ASIDE ALL THE ISSUES RAISED IN TH E APPEAL TO THE FILES OF THE CIT (A) FOR EXAMINING THE ISSUES AFRESH AND GIVE EFFECT TO EACH OF THE ARGUMENTS RAISED BY THE ASSESSEE / REVENUE AND THE EVIDENCES FURNISHED BY THE ASSESSEE AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE SET ASIDE . 8. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED F OR STATISTICAL PURPOSES. 0 ,1 2 * 3* 456 7 8 , * 2, 9: ORDER PRONOUNCED IN THE OPEN COURT ON 08/05/2013. . / * -.% ! ;#1 08/05/2013 . * < SD/- SD/- (I.P. BANSAL) (D. KARUNAKARA RAO) / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER MUMBAI; ;# DATED 08/05/2013 . # . ./ OKK , SR. PS / / / / * ** * (,7= (,7= (,7= (,7= >=%, >=%, >=%, >=%, / COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. ()&' / THE RESPONDENT. 3. ? ( ) / THE CIT(A)- 4. ? / CIT 5. =@< (,# , , / DR, ITAT, MUMBAI 6. <$ A / GUARD FILE. 4 )=, (, //TRUE COPY// /# /# /# /# / BY ORDER, 4 44 4 / 9 9 9 9 2 2 2 2 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI