DHWAJA SECRUITIES & SERVICES PVT.LTD. NOW KNOWN AS M/S. DHWAJA SHARES AND SECRUITIES PVT.LTD., MUMBAI V. ITO., WARD-9(1)(3), MUMBAI

ITA 4436/MUM/2011

• Counselvise Citation: 443619914 RSA 2011
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 02-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Assessee Lawyers: HITESH P SHAH
• Keywords: Additional evidence; Revised return
• Section: 144; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D, MUMBAI BEFORE SHRI DINESH KUMAR AGARWAL (JM) AND SHRI RAJE NDRA(AM) ITA NO.4436/MUM/2011 (ASSESSMENT YEAR: 2007-08) M/S DHWAJA SECURITIES & SERVICES PRIVATE LIMITED, NOW KNOWN AS M/S DHWAJA SHARES AND SECURITIES PVT. LTD., 603,SANJAR ENCLAVE, OPP. MILAP CINEMA, S.V.ROAD, KANDIVALI (WEST), MUMBAI-400067. PAN: AACCD1313L INCOME TAX OFFICER, WARD 9(1)(3), R.NO.224, AAYAKAR BHAVAN, MAHARSHI KARVE ROAD, MUMBAI-400020 APPELLANT V/S RESPONDENT DATE OF HEARING : 9.4.2012 DATE OF PRONOUNCEMENT : 25.4.2012 APPELLANT BY : SHRI HITESH P.SHAH RESPONDENT BY : SHRI C.G.K.NAIR O R D E R PER DINESH KUMAR AGARWAL (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 14.1.2011 PASSED BY THE L D. CIT(A) FOR THE ASSESSMENT YEAR 2007-08. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE COMPANY IS ENGAGED IN THE BUSINESS OF TRADING IN SH ARES AND SECURITIES. THE RETURN WAS FILED DECLARING TOTAL I NCOME AT ITA NO.4436/MUM/2011 (ASSESSMENT YEAR: 2007-08) 2 RS.29,67,550/- AND SUBSEQUENTLY REVISED RETURN WAS FILED DECLARING LOSS OF RS.67,22,481/-. THE AO AFTER PROCESSING OF THE RETURN SELECTED THE CASE FOR SCRUTINY AND ACCOR DINGLY ISSUED STATUTORY NOTICES U/S 143(2) AND 142(1) OF THE INC OME TAX ACT, 1961 (THE ACT). IN THE ABSENCE OF ANY PROPER COMPLIANCE, THE AO PASSED EX-PARTE ORDER DETERMINING THE TOT AL INCOME OF THE ASSESSEE AT RS.55,33,090/- VIDE ORDER DATED 27.11.2009 PASSED U/S 144 OF THE ACT. ON APPEAL, THE LD. CIT (A) NOTED THAT THE APPELLANT SOUGHT ONLY ADJOURNMENT AFTER ADJOURNMENTS. SINCE AMPLE OPPORTUNITIES HAVE BEE N GRANTED BUT TILL DATE THERE IS NO PROPER APPEARANCE NOR AN Y MATERIAL HAS BEEN PLACED, THE LD. CIT(A) DISMISSED THE ASSE SSEES APPEAL EX-PARTE BY HOLDING THAT THE APPELLANT IS N OT INTERESTED IN PROSECUTING THE APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN A LL THE GROUNDS THE VALIDITY OF THE ORDER PASSED BY THE LD.CIT(A) AND SUSTENANCE OF ADDITION/DISALLOWANCE MADE BY THE AO. 4. AT THE TIME OF HEARING, THE LD. COUNSEL FOR TH E ASSESSEE, AT THE OUTSET, SUBMITS THAT THE ASSESSEE HAS FILED APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE APPELLATE TRIBUNAL RULES, 1963, THEREFORE, THE SA ME MAY BE ITA NO.4436/MUM/2011 (ASSESSMENT YEAR: 2007-08) 3 ADMITTED. HE ALSO PLACED ON RECORD THE PAPER BOOK CONTAINING 30 PAGES. IN THE LIGHT OF THE ABOVE HE SUBMITS THA T ON THE LAST DATE OF HEARING I.E. ON 13.1.2011 , THE ASSESSEE REQUESTED THE LD. CIT(A) TO ALLOW HIM TO TAKE CERTAIN COPIES FROM THE FILE. HOWEVER, THE LD. CIT(A) REFUSED TO GIVE COPIES FR OM THE FILE OR TO ACCEPT THE ADJOURNMENT LETTER DATED 13.1.2 011. HE, THEREFORE, SUBMITS THAT IN VIEW OF THE ABOVE AND IN THE INTERESTS OF JUSTICE THE MATTER MAY BE SET ASIDE T O THE FILE OF THE LD.CIT(A) TO DECIDE THE SAME AFRESH. 5. ON THE OTHER HAND, THE LD.DR WHILE RELYING ON TH E ORDER OF THE AO AND LD.CIT(A) SUBMITS THAT HE HAS NO OBJE CTION, IF THE MATTER IS SET ASIDE TO THE FILE OF THE LD. CIT (A). 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. WE FIND THAT THERE IS NO DISPUTE THAT DESPITE VARIOUS OPPO RTUNISTS, PROVIDED TO THE ASSESSEE, THE ASSESSEE MADE NO PR OPER COMPLIANCE BEFORE THE AO AND THE LD. CIT(A), THERE FORE, BOTH THE REVENUE AUTHORITIES HAVE PASSED EX-PARTE ORDERS . WE FURTHER FIND THAT AT THIS STAGE THE ASSESSEE HAS FILED PAPER BOOK CONTAINING THE 30 PAGES. SINCE, THE ABOVE MAT ERIAL WAS NOT AVAILABLE BEFORE THE AO AND THE LD. CIT(A) AND KEEPING IN ITA NO.4436/MUM/2011 (ASSESSMENT YEAR: 2007-08) 4 VIEW THAT THE SAID EVIDENCE/COPIES OF ACCOUNTS GO TO THE ROOT OF THE MATTER AND ALSO KEEPING IN VIEW THAT THE LD . CIT(A) HAS NOT PASSED ANY SPEAKING ORDER IN TERMS OF THE PROV ISIONS OF SECTION 250 (6) OF THE ACT, THEREFORE, IN THE INTE RESTS OF JUSTICE, WE ADMIT THE ADDITIONAL EVIDENCE FILED BY THE ASSES SEE AND CONSIDER IT FAIR AND REASONABLE THAT THE MATTER SHO ULD GO BACK TO THE FILE OF THE LD.CIT(A) AND ACCORDINGLY, WE S ET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND RESTORE BACK T HE MATTER BACK TO THE FILE OF THE LD.CIT(A) TO DECIDE THE SAM E AFRESH AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTLY ALLOWED FOR STATIS TICAL PURPOSE. 7. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25TH APRIL, 2012. SD SD ( RAJENDRA ) ( DINESH KUMAR AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, 25TH APRIL, 2012 SRL: ITA NO.4436/MUM/2011 (ASSESSMENT YEAR: 2007-08) 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI