JCIT.,-17(3), MUMBAI V. R.K.BUILDERS & DEVELOPERS, MUMBAI

ITA 4708/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3291 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 11-06-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 10-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJARSHI DWIVEDY SHRI
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Opportunity of being heard; Retraction; Revised return
• Section: 131; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI . , ! ! ! ! . ' ' ' ' ! !! ! , $ $ $ $ %&' %&' %&' %&' % % % % BEFORE SHRI D. MANMOHAN, VP, AND , SHRI D.KARUNAKARA RAO, AM ITA NO. 5015/MUM/2011 (ASSESSMENT YEAR- 2007-2008) M /S. R.K. BUILDERS AND DEVELOPERS , A/3, TEJAM SADAN, JERBAI WADIA ROAD, PAREL, MUMBAI-400012. PAN: AAHFR8021M VS JT. COMMISSIONER OF INCOME TAX, RANGE-17, PIRAMAL CHAMBERS, MUMBAI- 400 013. (APPELLANT) (RESPONDENT) ITA NO. 4708/MUM/2011 (ASSESSMENT YEAR- 2007-2008) JT. COMMISSIONER OF INCOME TAX, RANGE-17, PIRAMAL CHAMBERS, MUMBAI- 400 013. VS M/S. R.K. BUILDERS AND DEVELOPERS, A/3, TEJAM SADAN, JERBAI WADIA ROAD, PAREL, MUMBAI-400012. PAN: AAHFR8021M (APPELLANT) (RESPONDENT) ASSESSEE BY : SANJIV M. SHAH REVENUE BY : RAJARSHI DWIVEDY SHRI % ! ( )$ /DATE OF HEARING : 11-06-2013 *+ ( )$ /DATE OF PRONOUNCEMENT : 3.7.2013 & && & , ,, , O R D E R . ' ' ' ' ! !! ! , $ $ $ $ %&' %&' %&' %&' PER D. KARUNAKAR A RAO, AM THESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE A ND THE REVENUE AGAINST THE ORDER OF THE CIT-29, MUMBAI, DATED 10.0 3.2011. FOR THE SAKE OF CONVENIENCE AND AS PER THE RULE, BOTH THESE APPEALS ARE CLUBBED AND BEING 2 ITA 5051 AND 4708 M 2011 R. K. BUILDERS & DEVELOPMERS ADJUDICATED IN THIS CONSOLIDATED ORDER. APPEAL WIS E AND GROUND WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS. ITA NO.5015/M/2011 ASSESSEES APPEAL 2. FIRSTLY, WE SHALL TAKE UP ITA NO.5015/M/2011, FILED BY THE ASSESSEE FOR THE AY 2007-2008. IN THIS APPEAL, ASSESSEE RAISED IN THE GROUNDS QUESTIONING THE FOLLOWING DECISIONS OF THE CIT(A). THEY ARE: (I) NO N-CONSIDERATION OF THE FACTS AND PARTICULARS FILED BEFORE THE AO DURING THE ASSESSME NT PROCEEDINGS, STATING THAT THE SAID PARTICULARS WERE NOT FURNISHED BY WAY OF REVISED RETURN OF INCOME, IGNORING THE SUPREME COURT JUDGMENT IN THE CASE OF GOETZE (IN DIA) LTD. VS COMMISSIONER OF INCOME-TAX (SC) REPORTED IN 284 ITR 323; AND (II) ISSUE RELATING TO RETRACTION OF STATEMENT GIVEN BY THE ASSESSEE U/S 131 OF THE ACT AND OTHER RELATED ISSUES. 3. ON THESE ISSUES, AT THE OUTSET, LD COUNSEL FOR T HE ASSESSEE FILED THE COPY OF THE ORDER OF HONBLE TRIBUNAL IN THE CASE OF M/S SUN DEVELOPERS , ITA NO. 5017/M/2011 AND 4709/M/ 2011 DATED 4.1.2013 FOR THE PROPOSITION THAT THE TRIBUNAL SET ASIDE THE SAID ISSUES TO THE FILE OF THE AO FOR FRESH AD JUDICATION AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FURTHER, LD COUNSEL BROUGHT OUR ATTENTION TO PARAGRAPH 4 AND 6 OF THE SAID TRIBUNALS ORDER FOR IDENTICAL REQUEST FOR SETTING ASIDE THE SAID ISSUES AND GROUNDS TO THE AO. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED TRIBUNALS ORDER. WE HAVE ALSO PERUSED THE GROUNDS OF THE APPEAL IN THE CASE OF M/S. SUN DEVELOPERS AN D FIND THAT THE ISSUES AND THE GROUNDS ARE COMMON TO THE ONES RAISED BEFORE US IN THE PRESENT APPEAL. WE HAVE ALSO PERUSED THE CITED PARAGRAPH NO. 3 TO 6 OF THE SAID TRIBUNALS ORDER AND THE SAME ARE REPRODUCED AS UNDER. 3. GROUND NOS. 1 & 2 RELATE TO THE APPLICABILITY O F THE HONBLE SUPREME COURT JUDGMENT IN THE CASE OF GOETZ INDIA LIMITED VS. CIT [2006] 284 ITR 323. RELATING TO THE FACTS OF THESE GROUNDS WHERE ASSESSEE RAISED TH E ISSUE REGARDING THE DISALLOWANCE OF RS. 97,32,858/- WITHOUT FILING THE REVISED RETURN OF INCOME. IN THIS REGARD LD COUNSEL MENTIONED THAT CONSIDERING THE ABOVE CITED JUDGMENT THE ASSESSING OFFICER IS REQUIRED TO ENTERTAIN THE GROUNDS RAISED BY THE ASS ESSEE DURING THE ASSESSMENT PROCEEDINGS. THE GIST OF THE ABOVE CITED JUDGMENT OF THE HONBLE APEX COURT READS AS UNDER: IN CASE WHERE A DEDUCTION IS CLAIMED AFTER FILING OF RETURN OF INCOME, THE ASSESSING AUTHORITY HAS NO POWER TO ENTERTAIN SUCH CLAIM OTHERWISE THAN BY WAY OF A REVISED RETURN. 3 ITA 5051 AND 4708 M 2011 R. K. BUILDERS & DEVELOPMERS 4. CONSIDERING THE ABOVE SETTLED NATURE OF THE ISS UE, THE CIT (A) IS ALSO AN APPELLATE AUTHORITY. THE BAR IF ANY, FOR CLAIMING OF RAISING OF FRESH ISSUES, ONLY THROUGH THE FILING OF THE REVISED RETURN THROUGH TH E ASSESSING OFFICER. WE ADMIT THE SAME AND THEREFORE, AO IS DIRECTED TO ADJUDICATE THE ISSUE AFRESH AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. ACCORDINGLY, GROUND NO. 1 & 2 ARE ADMITTED BY US AND SET ASIDE TO THE FILES OF AO. 5. REGARDING GROUND NO. 3 & 4, WHERE THE ISSUE IS A BOUT RETRACTION OF STATEMENT RECORDED U/S 131, BOTH THE PARTIES MENTIONED THAT THIS ISSUE MUST ALSO GO TO THE FILES OF THE AO FOR ADJUDICATING THE ISSUE AFRESH. 6. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE AND PERUSED THE RECORD. DURING THE COURSE OF PROCEEDINGS, BOTH THE PARTIES AGREED TO REMIT THE MATTER BACK TO THE FILES OF THE AO FOR FRESH ADJUDICATION OF THE ISSUE . WE HAVE CONSIDERED THE REQUEST OF BOTH THE PARTIES AND REMIT THE MATTER BACK TO THE FILES OF THE AO FOR ADJUDICATING THE ISSUE AFRESH AFTER GRANTING A REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. THE CIT (A) IS DIRECTED TO PROVIDE SPEAK ING ORDER ON THE REASONS GIVEN BY THE ASSESSEE IN PARA 3.5 OF THE APPELLATE ORDER REG ARDING THE FACTS RELATING TO WHETHER THE PROJECT IN QUESTION IS COMPLETED OR NOT? ACCOR DINGLY, GROUND NO. 3 & 4 RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . 5. CONSIDERING THE COMMONALITY OF THE ISSUES ARISIN G FROM THE GROUNDS WITH THAT OF THE ONES RAISED IN THE CASE OF M/S. SUN DEVELOPE RS, WE ARE OF THE OPINION THAT THE REQUEST OF THE ASSESSEE FOR SETTING ASIDE THE I SSUES TO THE FILES OF THE AO IS ACCEPTABLE. ACCORDINGLY, WITH IDENTICAL DIRECTION, WE DIRECT THE AO. THUS, GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL ARE SET ASIDE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 4708/MUM/2011 (ASSESSMENT YEAR- 2007-2008) 7. IN THIS APPEAL REVENUE RAISED THE EFFECTIVE GROU ND WHICH RELATES TO THE ISSUE OF ALLOWABILITY OF RS. 22 LAKHS OF EXPENSES CLAIME D IN THE NATURE OF CONTINGENT / UNASCERTAINED LIABILITIES U/S 37 OF THE INCOME TAX ACT. IN THIS REGARD ALSO LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET, MENTIONED THAT THE ONLY ISSUE RAISED WITH REGARD TO THE ALLOWABILITY OF RS. 22 LAKHS AS EXPEN SES U/S 37 OF THE ACT. AO DISALLOWED THE SAME HOLDING THAT THEY ARE UNASCERTA INED LIABILITIES WHEREAS THE CIT (A) GRANTED RELIEF REVERSING THE DECISION OF THE AO AND HOLDING THAT THE EXPENSES INCURRED BY THE ASSESSEE ARE THE ASCERTAINED ONES. THEREFORE, THE ASSESSING OFFICER IS DIRECTED CIT(A) TO ALLOW THE LIABILITIES OF RS. 22 LAKHS AS EXPENDITURE AGAINST THE PROJECT. UNDER THESE FACTS AND THE CIRCUMSTANCES OF THE PRESENT CASE, AS PER LD COUNSEL, THE ISSUES ARE COMPARABLE TO THOSE WHICH A RE ADJUDICATED BY THE 4 ITA 5051 AND 4708 M 2011 R. K. BUILDERS & DEVELOPMERS TRIBUNAL IN THE CASE OF M/S SUN DEVELOPERS (SUPRA) AND THE SAID GROUND IS ALSO REQUIRED TO BE SET ASIDE. IN THIS REGARD, HE BROUGH T OUR ATTENTION TO PARA -9 OF THE SAID ORDER OF THE TRIBUNAL AND REQUESTED FOR SETTING ASIDE THE SAME TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER GRANTING REASON ABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. WE HAVE PERUSED THE SAID PARAGRAPH 9 OF THE TRIB UNALS ORDER AND FIND THE SAME IS RELEVANT AND HENCE, REPRODUCED AS UNDER: 9. THE ONLY ISSUE THAT IS RAISED IN THIS APPEAL REL ATES TO THE ADDITION OF RS. 42,10,070/- DISALLOWED U/S 37 OF THE ACT. DURING T HE PROCEEDINGS BEFORE US, BOTH THE PARTIES MENTIONED THAT THIS ISSUE BEING ONE LINKED TO THE PROJECT IN QUESTION, PRAYED FOR SETTING ASIDE THIS ISSUE ALSO TO THE FILES OF T HE AO FOR FRESH ADJUDICATION. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT TH IS ISSUE IS SET ASIDE AND AO IS DIRECTED TO ADJUDICATE THE ISSUE AFRESH AFTER AFFOR DING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, GROUNDS R AISED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 8.1 . CONSIDERING THE ABOVE FACTS RELATING TO THE ISSUE ADJUDICATED IN THE CASE OF M/S. SUN DEVELOPERS, THE FACTS AND CIRCUMSTANCES AR E COMPARABLE TO THE INSTANT CASE AND ACCORDINGLY, THE PRAYER OF THE LD COUNSEL FOR THE ASSESSEE IS ACCEPTABLE. THE ISSUE RAISED IN THE GROUND BY THE REVENUE IS AL SO SET ASIDE AS REQUESTED BY THE PARTIES IN THE DISPUTE. ACCORDINGLY, GROUNDS AR E SET ASIDE. 9. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3.7.2013 SD/- SD/- (D.MANMOHAN) (D.KARUNAKAR RAO) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI: 3.7.2013 PS.- PRAMOD -.) /COPY TO:- 1) /0 /THE APPELLANT. 2) -1/0 /THE RESPONDENT. 5 ITA 5051 AND 4708 M 2011 R. K. BUILDERS & DEVELOPMERS 3) 2 ( ) - MUMBAI / THE CIT (A) , MUMBAI. 4) 2 , MUMBAI /THE CIT , MUMBAI, 5) 3!45 -.). , , / THE D.R. D BENCH, MUMBAI. 6) 5 6 7 COPY TO GUARD FILE. &, % / BY ORDER / / TRUE COPY / / / % 8 , DY./ASSTT. REGISTRAR I.T.A.T., MUMBAI