ACIT CEN CIR 1(2), MUMBAI V. ROBERT MCLEAN & CO. LTD, KOLKATTA

ITA 4398/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1445 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2017
• Appeal Filed By: Department
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 21-07-2015
• Court: TRIBUNAL
• Department Lawyers: VINITA J MENON
• Assessee Lawyers: HARESH KENIA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAVISH SOOD , JM ITA NO. 4398 / MUM/20 1 5 ( ASSESSMENT YEAR : 2009 - 10 ) ACIT CC 1(2), MUMBAI VS. M/S. ROBERT MCLEAN & CO. LTD.,9, ROWDON STREET, UDYANCHAL BUIL DING, FLAT NO.20, 5 TH FLOOR, KOLKATA 700 017 PAN/GIR NO. AACCR9418E APPELLANT ) .. RESPONDENT ) REVENUE BY SMT. VINITA J MENON ASSESSEE BY SHRI HARESH KENIA DATE OF HEARING 04 / 04 /201 7 DATE OF PRONOUNCEME NT 06 / 04 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - 47, MUMBAI DATED 11/05/2015 FOR THE A.Y.2009 - 10 IN THE MATTER OF PENALTY IMPOSED U/S.271(1)(C) OF THE I.T. ACT. 2. AT THE OUTSET, LEARNED AR PLACED ON RECORD THE QUANTUM ORDER OF THE TRIBUNAL DATED 17/08/2015 WHEREIN QUANTUM ADDITION WAS RESTORED BACK TO THE FILE OF THE AO AFTER HAVING THE FOLLOWING OBSERVATION: - 6. FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. LEARNED COUNSEL APP EARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) HAVE OVERLOOKED THE FACT THAT SUFFICIENT OPPORTUNITY OF BEING HEARD, AT ANY STAGE OF PROCEEDINGS, WAS NOT GIVEN AND THE TAX AUTHORITIES HAVE ERRED IN COMING TO A CONCLUSION THAT THERE WAS CESSATION OF LIABILITY, OVERLOOKING THE CLAIM OF THE ASSESSEE THAT THE MAIN DIRECTOR WAS UNDER JUDICIAL CUSTODY SINCE MARCH, 2011 AND THE REGULAR STAFF OF THE ASSESSEE HAVE ALREADY LEFT DUE TO PECULIAR CIRCUMSTANCES OF ITA NO. 4398/MUM/2015 ROBERT MCLEAN & CO. LTD., 2 THE C ASE; THUS, THE ASSESSEE COULD NOT FURNISH ALL THE DETAILS BEFORE THE ASSESSING OFFICER. LD. COUNSEL NOW SUBMITS THAT THE ASSESSEE IS WILLING TO COOPERATE WITH THE ASSESSING OFFICER AND PREPARED TO FURNISH THE DETAILS SUCH AS PAN ETC., OF THE PARTIES AND OT HER REQUISITE DETAILS TO PROVE THAT THE CURRENT LIABILITY AND UNSECURED LOAN CANNOT BE TREATED AS HAVING BEEN CEASED TO EXIST IN THE YEAR UNDER CONSIDERATION. SIMILARLY WITH REGARD TO THE NORMAL EXPENDITURE INCURRED FOR RUNNING DAY - TODAY BUSINESS, THE LEAR NED COUNSEL REQUESTED FOR ONE MORE OPPORTUNITY SO AS TO FURNISH THE DETAILS BY CONTENDING THAT EVEN WRITTEN SUBMISSIONS AND BASIC DETAILS FURNISHED WERE NOT PROPERLY VERIFIED BY THE TAX AUTHORITIES. LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT RAISED ANY SE RIOUS OBJECTION WITH REGARD TO SETTING ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR PROPER VERIFICATION. NEEDLESS TO OBSERVE THAT THE BURDEN IS UPON THE ASSESSEE TO PROVE THAT THE LIABILITIES DID NOT CEASE TO EXIST AND DAY - TO - DAY EXPENDITURE W AS INCURRED BY THE ASSESSEE FOR RUNNING SKELETON BUSINESS. 7. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF SUBSTANTIAL JUSTICE, WE SET ASIDE THE ORDERS PASSED BY THE TAX AUTHORITIES AND DIRECT THE ASSESSING OFFICER TO RECONSIDER THE M ATTER IN ACCORDANCE WITH LAW. THE ASSESSEE IS DIRECTED TO FURNISH ALL REQUIRED DETAILS AT THE EARLIEST BEFORE THE ASSESSING OFFICER SO AS TO ENABLE HIM TO ARRIVE AT A PROPER FINDING ON THE ISSUES WHICH ARE IN DISPUTE. WE MAY REITERATE THAT THE PRIMARY BURD EN IS UPON THE ASSESSEE TO PROVE THAT THE LIABILITIES ARE STILL IN EXISTENCE. 8, WITH THESE REMARKS, WE HEREBY SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER AND TREAT THE APPEAL AS ALLOWED FOR STATISTICAL PURPOSES. 3. IN VIEW OF THE QUANTUM ORD ER FOR WHICH PENALTY HAS BEEN IMPOSED HAVE ALREADY BEEN RESTORED BACK BY TRIBUNAL, WE ALSO RESTORE BACK THE PENALTY ORDER TO THE FILE OF THE AO FOR DECIDING AFRESH AFTER PASSING THE QUANTUM ORDER AS PER DIRECTION OF TRIBUNAL IN ITS ORDER DATED 17/08/2015. 4. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 06 / 04 /2017 S D/ - ( RAVISH SOOD ) S D/ - ( R.C.SHARMA ) JUDICIAL MEMBER AC COUNTANT MEMBER MUMBAI ; DATED 06 / 04 /201 7 ITA NO. 4398/MUM/2015 ROBERT MCLEAN & CO. LTD., 3 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUM BAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//