ITO 13(3)(1), MUMBAI V. RECKON TRADING PVT. LTD., MUMBAI

ITA 4116/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0749 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 05-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: DHARMENDRA SINGH
• Keywords: Reopening of assessment; Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 69C; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI M. BALAGANESH , HON'BLE ACCOUNTANT MEMBER ITA NO. 4116 /MUM/201 7 (A.Y: 20 0 9 - 10) INCOME TAX OFFICER - 13(3)(1) ROOM NO . 227, 2 ND FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI - 400 020 V. M/S. RECKON TRADING PVT. LTD., 002, GULMOHAR COMPLEX STATION ROAD, GOREGAON (E) MUMBAI 400 063 PAN: AADCR7049A (APPELLANT) (RESPONDENT) CO NO. 285/MUM/2018 [ARISING OUT OF ITA NO. 4116 /MUM/201 7 (A.Y: 20 09 - 10)] M/S. RECKON TRADING PVT. LTD., 002, GULMOHAR COMPLEX STATION ROAD, GOREGAON (E) MUMBAI 400 063 PAN: AADCR7049A V. INCOME TAX OFFICER - 13(3)(1) ROOM NO. 227, 2 ND FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI - 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DHARMENDRA SINGH DEPARTMENT BY : SHRI CHAITANYA ANJARIA DATE OF HEARING : 26.07.2019 DATE OF PRONOUNCEMENT : 08 .08.2019 O R D E R PER C. N. PRASAD (JM) 1. TH E APPEAL AND CROSS OBJECTION ARE FILED BY THE REVENUE AND ASSESSEE RESPECTIVELY AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF 2 ITA NO. 4116/MUM/2017 (A.Y: 2009 - 10) CO NO. 285/MUM/2018 M/S. RECKON TRADING PVT. LTD., INCOME TAX (APPEALS) - 21 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 20.03.2017 FOR THE A.Y. 2009 - 10. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: - 1. THE ID. CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS.1,50,00,000/ - O N ACCOUNT OF SHARE PREMIUM/SHARE APPLICATION MONEY /UNEXPLAINED CASH CREDIT U/S 68 OF INCOME - TAX ACT, 1961 AND ADDITION OF RS.7,50,000/ - BE ING 5% OF THE UNEXPLAINED CASH CREDIT VALUE, AS UNEXPLAINED OF EXPENDITURE U/S 69C OF THE I . T.ACT. 2. T HE APPELLANT PRAYS THAT THE ORDER OF THE ID.CIT(A) ON THE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ALL OR ANY OF THE GROUNDS OF APPEAL WHICH MAY BE NECESSARY . 3. IN THE CROSS OBJECTION ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE RESPONDENT CHALLENGES THE RE - OPENING U/S. 148 ISSUED BY A.O. IS BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, ALTERNATIVELY THE RESPONDENT PLEASE THAT THE LEARNED CIT(A) HAS NOT DECIDED THE ISSUE RAISED BY RESPONDENT ON RE - OPENING U/S. 148 OF THE ACT BY THE ASSESSING OFFICER IS BAD IN LAW AND AGAINST THE PRINCIPLE OF NATURAL JUSTICE . 4. AT THE TIME OF HEARING , AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE GROUND RAISED BY THE ASSESSEE CHALLENGING THE REOPENING OF ASSESSMENT HAS NOT BEEN DIS POSED OF BY THE LD.CIT(A). ON A PERUSAL OF THE RECORD BEFORE US , WE FIND THAT NO SUCH GROUND HAS BEEN RAISE D BEFORE THE LD.CIT(A). HOWEVER, SINCE THE GROUND RAISED BY THE ASSESSEE IS PURELY A LEGAL GROUND GOING TO THE VERY JURISDICTION AND THE VALIDITY OF T HE ASSESSMENT O RDER, WE FEEL IT APPROPRIATE TO RESTORE THIS ISSUE TO THE FILE OF THE LD.CIT(A) FOR ADJUDICATION. THE ASSESSEE IS AT LIBERTY TO RISE THE LEGAL GROUND BEFORE THE LD.CIT(A). THUS , WE RESTORE THIS APPEAL TO THE FILE OF 3 ITA NO. 4116/MUM/2017 (A.Y: 2009 - 10) CO NO. 285/MUM/2018 M/S. RECKON TRADING PVT. LTD., THE LD.CIT(A) FOR FRESH ADJUDICATION. SINCE T HE DECISION O N THE VALIDITY OF RE ASSESSMENT , HAS BEARING ON THE MERITS OF THE ADDITION MADE IN THE ASSESSMENT , W ITHOUT MAKING ANY COMMENTS ON MERITS THE APPEAL OF THE REVENUE IS ALSO RESTORED TO THE FILE OF THE LD.CIT(A ) FOR D ENOVO ADJUDICATION IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 5. IN THE RESULT, BOTH APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 08 TH AUGUST , 2019 SD/ - SD/ - ( M. BALAGANESH ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 08 / 0 8 / 2019 GIRIDHAR , S R. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM