MAKRAND PLANTATIONS P . LTD, MUMBAI V. DCIT CIR 2(2), MUMBAI

ITA 4825/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49606 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2006-2007
• Appeal Filed On: 10-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH: MUMBAI BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO.4825/MUM/2010 (ASSESSMENT YEAR: 2006-07) MAKRAND PLANTATIONS PVT. LTD., BRANDY HOUSE, 3RD FLOOR, 12/14, VEER NARIMAN ROAD, FORT, MUMBAI -400 001 ....... APPELLANT VS DCIT CIRCLE -2(2), MUMBAI .... RESPONDENT PAN: AADCM 9341 E APPELLANT BY: SHRI YOGESH THAR RESPONDENT BY: SHRI D.S. SUNDER SINGH DATE OF HEARING: 26.07.2011 DATE OF PRONOUNCEMENT: 29.07.2011 O R D E R PER R.S. PADVEKAR, JM IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMPU GNED ORDER OF THE LD. CIT (A)-5, MUMBAI DATED 12.03.2010 FOR T HE A.Y. 2006-07. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROU ND IN THE APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-5, MUM BAI (THE CIT (A)) ERRED IN UPHOLDING THE ACTION OF TH E ASSESSING OFFICER (THE AO) IN DISALLOWING A SUM O F ` 17,21,922/- U/S.14A OF THE INCOME-TAX ACT, 1961 ( THE ACT) APPLYING RULE 8D. ITA 4825/MUM/2010 MAKRAND PLANTATIONS PVT. LTD. 2 2. THE ASSESSEE HAS ALSO FILED AN APPLICATION WITH A PRAYER TO ADMIT THE ADDITIONAL GROUND WHICH IS AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) -5 (THE CIT (A)) HAS ERRED IN NOT DIRECTING THE DY. COMMIS SIONER OF INCOME TAX, CIRCLE -2(2), MUMBAI (THE AO) TO ALLO W DEDUCTION OF PORTFOLIO MANAGEMENT SERVICES CHARGES AMOUNTING TO ` 8,49,151/- UNDER SECTION 48 WHILE COMPUTING SHORT TERM CAPITAL GAINS. 3. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUBM ITS THAT HE IS NOT PRESSING THE ORIGINAL GROUND ON THE ISSUE OF DI SALLOWANCE U/S.14A. HE, FURTHER, SUBMITS THAT SO FAR AS THE ADDITIONAL GROUND IS CONCERNED, THE SAME GROUND WAS REMAINED TO BE TAKEN INADVERTEN TLY, THOUGH IT WAS RAISED BEFORE THE LD. CIT (A). HE SUBMITS THAT THE LD. CIT (A) DISPOSED OFF THE ASSESSEES APPEAL EX-PARTE WITHOUT ANY DISCUSSION ON THIS GROUND. THE LD. COUNSEL ALSO TOOK US THROUGH THE ASSESSMENT ORDER AND SUBMITS THAT THOUGH THE ASSESSEES CLAIM IS DISALLOWED IN THE COMPUTATION BUT THERE IS NO DISCUSSION IN THE B ODY OF THE ASSESSMENT ORDER. HE, THEREFORE, PLEADED FOR ADMIT TING THE ADDITIONAL GROUND. WE HAVE ALSO HEARD THE LD. D.R. 4. SO FAR AS THE ORIGINAL GROUND ON THE ISSUE OF TH E DISALLOWANCE U/S.14A IS CONCERNED, AS THE SAID GROUND IS NOT PRE SSED, HENCE, ACCORDINGLY DISMISSED AS NOT PRESSED. 5. SO FAR AS THE ADDITIONAL GROUND IS CONCERNED, WE FIND THAT THOUGH THE ASSESSEE HAS TAKEN THIS GROUND BEFORE TH E LD. CIT (A) (GROUND NO.3) IN THE GROUNDS TAKEN BEFORE THE LD. C IT (A) BUT HE HAS NOT DISCUSSED ANYTHING ON THIS GROUND WHILE DECIDIN G THE ASSESSEES APPEAL EX-PARTE . SO FAR AS ADMISSION OF THE ADDITIONAL GROUND IS CONCERNED, WE FIND THAT IT IS A LEGAL ISSUE AND THE ASSESSEE HAS ALREADY ITA 4825/MUM/2010 MAKRAND PLANTATIONS PVT. LTD. 3 RAISED THIS GROUND BEFORE THE AUTHORITIES BELOW. W E, ACCORDINGLY, ADMIT THIS ADDITIONAL GROUND RAISED BY THE ASSESSEE . AS THE AO AS WELL AS THE LD. CIT (A) HAVE NOT GIVEN ANY REASON F OR NOT ALLOWING OF THE CLAIM OF THE ASSESSEE, WE CONSIDER IT FIT TO RE STORE THIS ISSUE TO THE FILE OF THE A.O. FOR FRESH DETERMINATION BY PASSING A SPEAKING ORDER. NEEDLESS TO SAY THE A.O. SHOULD GIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 9TH JULY 2011. SD/- SD/- ( B. RAMAKOTAIAH ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE : 29TH JULY 2011 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)5, MUMBAI. 4) THE CIT-2, MUMBAI. 5) THE D.R. J BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN