P. DALAL & CO. P.LTD, MUMBAI V. ITO 7(1) (3), MUMBAI

ITA 4593/MUM/2013

• Counselvise Citation: 459319914 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 01-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHLIP
• Assessee Lawyers: VIKRAM D DALAL
• Keywords: Principle of natural justice
• Section: 68; 43B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE HONBLE S/SHRI H.L. KARWA, PRESIDENT AND B. R.BASKARAN (AM) . . , . . , ./ I.T.A. NO.4593/MUM/2013 ( / ASSESSMENT YEAR :2008-09) M/S P.DALAL AND CO. PVT.LTD., C/O VIKRAM V DALAL, 10C MAKER APARTMENT, 232, WALKESHWAR ROAD, MALABAR HILL, MUMBAI-400006 / VS. INCOME TAX OFFICER, WARD 7 (1)(3), AAYAKAR BHAVAN, M K ROAD, MUMBAI-400020. ( / APPELLANT) .. ( ! / RESPONDENT) ./ #$ ./ PAN/GIRNO.:AAACP4713E % / ASSESSEE BY : SHRI VIKRAM D DALAL ! & % /RESPONDENT BY : SHRI NEIL PHLIP. ' ( & ) * / DATE OF HEARING : 1.1.2015 +, & ) * /DATE OF PRONOUNCEMENT : 07.1.2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 26.3.2013 PASSED BY THE LD. CIT(A)-13, MUMBAI AND I T RELATES TO THE ASSESSMENT YEAR 2008-09. 2. FOLLOWING ISSUES ARE CONSTITUTED IN THIS APPEAL: A) DISALLOWANCE OF PF/ESIC OF RS.30,941/- ON ACCO UNT OF DELAYED PAYMENT U/S 43B OF THE INCOME TAX ACT, 1961 (THE A CT) AND ; B) ASSESSMENT OF CASH CREDIT U/S 68 OF THE ACT. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORD. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE ASSES SEE HAD DEPOSITED PF/ESIC AMOUNT BEFORE THE DUE DATE OF FILING OF RETURN OF I NCOME AND HENCE THE SAME IS ITA NO.4593/M/13 2 ALLOWABLE AS EXPENDITURE U/S 43B OF THE INCOME TAX ACT, 1961 (THE ACT) IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CAS E OF CIT V/S ALOM EXTRUSION LTD (2009) 319 ITR 306 (SC) AND ALSO IN VIEW OF THE RECENT DECISION OF THE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF CI T V/S GHATGE PATIL TRANSPORT LTD, DATED 14 OCTOBER, 2014 IN INCOME TAX APPEAL NO S.1002 OF 2012 AND INCOME TAX APPEAL NO.1034 OF 2012. HOWEVER, THE A SSESSEE COULD NOT FURNISH DETAILS RELATING TO THE ACTUAL DATE OF PAYMENT OF P F/ESIC DUES. THE RELEVANT DETAILS ARE NOT AVAILABLE IN THE ORDERS OF TAX AUTH ORITIES ALSO. HENCE, WE ARE OF THE VIEW THAT THE CLAIM OF THE ASSESSEE REQUIRES FRESH EXAMINATION AT THE END OF THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFI CER WITH A DIRECTION TO EXAMINE THE SAME AFRESH AS PER THE DECISION OF HONBLE SUP REME COURT AND JURISDICTIONAL HIGH COURT ( REFERRED SUPRA). 4. THE NEXT ISSUE RELATES TO THE ASSESSMENT OF CASH CREDIT U/S 68 OF THE ACT. THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE COULD NOT FURNISH RELEVANT DOCUMENTS BEFOR E THE ASSESSING OFFICER. HE ALSO SUBMITTED THAT THOUGH THE ASSESSEE FURNISHED T HOSE DOCUMENTS BEFORE THE LD. CIT(A), YET THE FIRST APPELLATE AUTHORITY(FAA ) REFUSED TO ADMIT THE SAME. ACCORDINGLY HE PRAYED THAT THIS ISSUE MAY BE RESTOR ED TO THE FILE OF AO FOR FRESH EXAMINATION IN THE INTEREST OF NATURAL JUSTICE. 5. WE NOTICE THAT THE ASSESSEE HAS GATHERED CERTAIN DOCUMENTS TO PROVE CASH CREDIT AND THE SAME WAS NOT PRODUCED BEFORE TH E ASSESSING OFFICER. THE LD CIT(A) HAS ALSO REFUSED TO ADMIT THE SAME ON TECHNI CAL GROUND. IN OUR VIEW, THE TECHNICAL REASONS SHOULD NOT HAMPER THE CAUSE OF JU STICE. ACCORDINGLY, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION BY DULY CONSIDERING THE DOCUMENTS THAT MAY BE FURNISHED BY THE ASSESSEE BEF ORE THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD.CIT(A) AND RESTORE THI S ISSUE ALSO TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE S AME AFRESH BY DULY CONSIDERING ALL THE DOCUMENTS THAT MAY BE FURNISHED BEFORE HIM BY THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO FULLY CO-OPERATE WITH THE AS SESSING OFFICER. ITA NO.4593/M/13 3 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OP EN COURT ON 7 TH JAN,2015 . +, ' - ./ 0 1 7TH JAN, 2015 , & 2( 3 SD SD ( . . / H.L. KARWA) ( . . , / B.R. BASKARAN ) / PRESIDENT / ACCOUNTANT MEMBER . ' ( MUMBAI: JAN, 2015. . . ./ SRL , SR. PS ! ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT. 3. ' 5) ( ) / THE CIT(A)- CONCERNED 4. ' 5) / CIT CONCERNED 5. 6. 67 2 )8 , * 8 , . ' ( / DR, ITAT, MUMBAI CONCERNED 2 9 : ( / GUARD FILE. ; ' / BY ORDER, TRUE COPY < # (ASSTT. REGISTRAR) * 8 , . ' ( /ITAT, MUMBAI