ITO WD 20(3)(2), MUMBAI V. SHREE DEEPAK EXPORTS, MUMBAI

ITA 4481/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3800 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 27-02-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 01-06-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Assessee Lawyers: S A TINWALA
• Keywords: Additional evidence

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F MUMBAI . . , / , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO. 4481/MUM/2010 / ASSESSMENT YEAR 2001-02 I.T.O. WARD 20(3)(2), MUMBAI. VS. M/S. SHREE DEEPAK EXPORTS, 402, PITAMBER LANE, MAHIM, MUMBAI 400 016. PAN: AAGES 7984 K ( ! / APPELLANT ) ( '# ! / RESPONDENT ) REVENUE BY : SHRI OM PRAKASH MEENA ASSESSEE BY : SHRI S.A. TINWALA $ %& / DATE OF HEARING : 10-04-2013 '( $ %& / DATE OF PRONOUNCEMENT : 10-04-2013 ) / O R D E R PER RAJENDRA, A.M. FOLLOWING GROUNDS OF APPEAL HAVE BEEN FILED BY THE ASSESSING OFFICER (AO) AGAINST THE ORDER DT. 18-03-2010 OF CIT(A)-31, MUMB AI: 1.THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE IN DELETING THE ADDITION ON ACCOUNT OF FOREIGN TRAVELLING EXPENSES TO THE EXTENT OF RS. 21,79,465/- BY ADMITTING EVIDENCES WH ICH WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER, DURING THE ASSESSMENT PROCEE DINGS. 2.THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE BY ADMITTING FRESH EVIDENCES IN CONTRAVENTION OF RULE 46A OF IT RULES, 1962, AND ALLOWING THE FOREIGN TRAVELLING EXPENSES WITHOU T GIVING THE AO AN OPPORTUNITY TO EXAMINE THE FRESH EVIDENCES. 3.THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED. 4.THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR TO SUBMIT ADDITIONAL NEW GROUND WHICH MAY BE NECESSARY. 2. ASSESSEE-FIRM, ENGAGED IN THE BUSINESS OF EXPORT O F TEXTILE PRODUCTS, FILED ITS RETURN OF INCOME ON 24 TH SEPT. 2001 DECLARING TOTAL INCOME AT RS. 10,550/-. ITA NO. 4481/MUM/2010 M/S. SHREE DEEPAK EXPORTS 2 ASSESSMENT WAS FINALISED BY THE ASSESSING OFFICER ( AO) ON 25-02-2004 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 24,62,030/- . 3. THE EFFECTIVE GROUND OF APPEAL FILED BY THE ASSESS ING OFFICER (AO) IS ABOUT ADMITTING ADDITIONAL EVIDENCES BY THE FIRST APPELLA TE AUTHORITY (FAA). DURING THE ASSESSMENT PROCEEDINGS, AO FOUND THAT ASSESSEE HAD CLAIMED FOREIGN TRAVEL EXPENSES OF RS. 23.32 LAKHS. HE DIRECTED THE ASSES SEE TO FURNISH DETAILS OF SAID EXPENSES ALONG WITH DOCUMENTARY EVIDENCES. AFTER C ONSIDERING THE LETTER OF ASSESSEE OF 17-02-2004, AO HELD THAT ASSESSEE COULD NOT SUBM IT ANY DOCUMENTARY EVIDENCE IN RESPECT OF CLAIM MADE ON ACCOUNT OF FOREIGN TRAVEL EXPENSES. AS A RESULT, HE DIS- ALLOWED RS. 23.32 LAKHS CLAIMED BY THE ASSESSEE UND ER THE HEAD FOREIGN TRAVEL EXPENSES. ASSESSEE PREFERRED AN APPEAL BEFORE THE FAA. WE FIND THAT ASSESSEE HAD SUBMITTED SAMPLE COPIES OF BILLS AND INVOICES BEFOR E THE FAA. IT IS FURTHER FOUND THAT ASSESSEE HAD ALSO FILED SOME DETAILS ABOUT THE EXPE NDITURE INCURRED BY DAUGHTER OF DEEPAK JHUNJHUNWALA - MISS POOJA JHUNJHUNWALA. 4. WE HAVE GONE THROUGH THE EX.A TO EX.E FILED BY THE AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE BEFORE US VIDE HIS LETTER DT. 03-09-2012. AR HAS NOT CERTIFIED AS BEFORE WHICH AUTHORITIES THESE PAP ERS WERE SUBMITTED. WE FIND THAT EVEN IN THE FORM NO. 35, IT HAS NOT BEEN MENTIONED BY THE ASSESSEE THAT DOCUMENTS WERE FURNISHED BEFORE THE AO. BEFORE US, DEPARTMEN TAL REPRESENTATIVE (DR) SUBMITTED THAT FAA HAD ADMITTED FRESH EVIDENCES, TH AT HE DID NOT CALL FOR ANY REMAND REPORT FROM THE ASSESSEE, THAT DECIDING THE ISSUE W ITHOUT REFERRING THE ADDITIONAL EVIDENCES TO THE AO WAS VIOLATION OF RULE 46A OF TH E INCOME TAX RULES, 1962 (RULES). HE RELIED UPON THE CASE OF RAJAN MANHAZI AYROORKAROT [15 TAXMANN.COM 297 (MUM)]. 5. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT IN VIEW OF THE INTEREST OF JUSTICE, MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE FAA IN VIOLATION OF PROVISIONS OF RULE 46A(3) OF THE RULES. HE IS DIRECTED TO DEC IDE THE ISSUE AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO AO AND THE ASS ESSEE. HE IS FURTHER REQUESTED TO FOLLOW THE PROVISIONS OF RULE 46A OF THE RULES. AS A RESULT APPEAL FILED BY THE AO STANDS PARTLY AL LOWED ORDER PRONOUNCED IN THE OPEN C OURT 10 TH APRIL, 2013 ) $ '( + , 10 '/, 2013 ( $ 3 4 SD/- SD/- ( . . / I.P. BANSAL ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, , / DATE: 10 TH APRIL, 2013 TNMM ITA NO. 4481/MUM/2010 M/S. SHREE DEEPAK EXPORTS 3 ) ) ) ) $ $$ $ '%5 '%5 '%5 '%5 65% 65% 65% 65% / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR F BENCH, ITAT, MUMBAI 6. GUARD FILE #5% '% //TRUE COPY// ) ) ) ) / BY ORDER, 7 77 7 / 8 8 8 8 DY./ASST. REGISTRAR , / ITAT, MUMBAI