M/s. CHIKA PVT. LTD., MUMBAI V. ITO - 1(1)(3), MUMBAI

ITA 4009/MUM/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1569 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 17-11-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 05-06-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: B P PANCHAL
• Keywords: Opportunity of being heard; Bad and doubtful debts; Revised return; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: MUMBAI BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO 4009/MUM/2008 (ASSESSMENT YEAR: 2004-05) CHIKA PVT LTD, 5TH FLOOR, INDUSTRIAL ASSURANCE BUILD OPP CHURCHGATE STATION, MUMBAI -400 020 PAN: AAACC 4609 A VS INCOME TAX OFFICER 1(1)(3), MUMBAI APPELLANT RESPONDENT APPELLANT BY: SHRI B P PANCHAL RESPONDENT BY: SHRI SANJEEV JAIN ORDER PER R.K. GUPTA, JUDICIAL MEMBER THIS APPEAL FILED BY THE ASSESSEE AGAINST ORDER OF CIT (A) RELATING TO ASSESSMENT YEAR 2004-05. 2. GROUND NO.1 WHICH IS CONFIRMING THE ACTION OF TH E ASSESSING OFFICER HOLDING INCOME OF BUSINESS CENTRE AS INCOME FROM OTHER SOUR CES WAS NOT PRESSED, THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. 3. GROUND NO.2 IS AGAINST NOT ALLOWING DEDUCTION FR OM INCOME ON ACCOUNT WRITE BACK OF DOUBTFUL DEBTS. 4. IN COMPUTATION OF INCOME, THE ASSESSEE HAS NOT C LAIMED DEDUCTION ON ACCOUNT OF WRITTEN OFF OF PROVISION FOR DOUBTFUL DEBTS. HOWEV ER, DURING ASSESSMENT PROCEEDINGS, A LETTER REQUESTING THE ASSESSING OFFICER TO ALLOW WR ITE BACK OF PROVISION OF DOUBTFUL DEBT WAS FILED. THE ASSESSING OFFICER REJECTED THE CLAI M OF THE ASSESSEE BY OBSERVING THAT ITA 4009/M/2008 CHIKA PVT LTD 2 NEITHER THE CLAIM WAS MADE IN ORIGINAL RETURN NOR A SSESSEE HAS FILED ANY REVISED RETURN. THE CIT (A) PLACING RELIANCE ON THE DECISION ON THE APEX COURT IN CASE OF GOTEZE INDIA LTD (284 ITR 323) WHEREIN IT HAS BEEN HELD THAT THE ASS ESSING OFFICER IS NOT EMPOWERED TO ENTERTAIN THE CLAIM FOR DEDUCTION OTHERWISE FILING A REVISED RETURN, CONFIRMED THE ACTION OF THE ASSESSING OFFICER. IT WAS SUBMITTED HERE BEFOR E TRIBUNAL THAT THOUGH THE CLAIM WAS MADE DURING ASSESSMENT PROCEEDINGS BUT SAME HAS BEE N REJECTED IN VIEW OF THE DECISION OF APEX COURT IN GOTEZE INDIA LTD. HOWEVER, ON MER IT THE CLAIM OF THE ASSESSEE IS ALLOWABLE. IT WAS FURTHER SUBMITTED THAT BEFORE AP PELLATE AUTHORITY THE CLAIM CAN BE MADE AS HELD BY VARIOUS BENCHES OF THE TRIBUNAL. A TTENTION OF THE BENCH WAS DRAWN ON VARIOUS DECISIONS DECIDED BY THE TRIBUNAL IN THIS R ESPECT. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE PLACED RELIANCE ON THE ORDER OF THE AUTHORITIES BELOW. 5. AFTER CONSIDERING THE SUBMISSION AND PERUSING TH E MATERIAL ON RECORD WE FIND THAT THE MATTER SHOULD GO BACK TO THE FILES OF THE ASSES SING OFFICER TO DECIDE THE SAME AFRESH ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS WELL SETTLED PROPOSITION THAT WHERE THE CLAIM IS NO T MADE BY FILING REVISED RETURN AND IT IS MADE BEFORE THE APPELLATE AUTHORITY THEN THE CLAIM IS LIABLE TO BE CONSIDERED, THEREFORE, ACCEPTING THIS PROPOSITION, WE SET ASIDE THE ORDER OF THE CIT (A) AND RESTORE THE ISSUE TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THE CLAIM OF WRITTEN BACK OF PROVISION OF BAD DEBT ON MERIT. WE ORDER ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 25TH DAY OF NOVEMBER 2009. SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER SD/- (R.K. GUPTA) JUDICIAL MEMBER MUMBAI, DATE: 25TH NOVEMBER 2009 ITA 4009/M/2008 CHIKA PVT LTD 3 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) I, MUMBAI. 4) THE CIT-I, MUMBAI. 5) THE D.R. C BENCH, ITAT, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR CHAVAN* I.T.A.T., MUMBAI ITA 4009/M/2008 CHIKA PVT LTD 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 17.11.09 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 19/20.11.09 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS 7 FILE SENT TO THE BENCH CLERK SR.PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER