THE ACIT 18(1), MUMBAI V. M/S. JOITABHAI TRUST, MUMBAI

ITA 4849/MUM/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7336 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 15-03-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 06-07-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MADHUK
• Assessee Lawyers: F IRANI
• Keywords: Set aside
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI. BEFORE SHRI R.V.EASWAR, SR.VP AND SHRI R.K. PAND A, AM I.T.A. NO.4849/MUM/2007 (ASSESSMENT YEAR: 2004-05) THE ASSISTANT COMMISSIONER OF INCOME TAX, RANGE-18(1), 1 ST FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400 012. VS. M/S. JOITABHAI TRUST PROP. AREO INDUSTRIES, 228, PRAGATI INDL. ESTATE, N.M.JOSHI MARG, LOWER PAREL, MUMBAI-400 013. PAN:AAATJ1944Q (APPELLANT) (RESPONDENT) APPELLANT BY : MR.S.K.MADHUK, DR RESPONDENT BY : MR. F.IRANI O R D E R PER R.V.EASWAR, SENIOR VICE PRESIDENT: THIS IS AN APPEAL BY THE DEPARTMENT AND IT IS DIRECTED AGAINST THE ORDER OF THE CIT(A) DATED 30.04.2007 BY WHICH THE ASSESSEES APPEAL WAS ALLOWED IN PART. 2. THE ASSESSEE IS AN ASSOCIATION OF PERSONS ENGAGE D IN THE CONTRACT MANUFACTURE OF HEALTH CARE AND PERSONAL CA RE PRODUCTS. IT FILED THE RETURN OF INCOME DECLARING T OTAL INCOME OF RS.59,27,449/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 144 OF THE INCOME TAX ACT ON THE GROUND THAT THE AS SESSEE DID NOT AVAIL OF ALL THE OPPORTUNITIES GIVEN TO IT. THE TOTAL INCOME WAS DETERMINED AT RS.99,77,680/- AFTER MAKING THE A DDITIONS AS FOLLOWS:- (A) ON ACCOUNT OF LOW G.P. RS.1 0,00,000/- (B) ON ACCOUNT OF PAYMENTS U/S.40A(2)(B) RS.25,00, 000/- (C) ON ACCOUNT OF PENALTY/FINE RS. 59, 000/- (D) DISALLOWANCE OF VARIOUS EXPENSES RS. 4 ,41,233/- 3. THE ASSESSEE APPEALED BEFORE THE CIT(A) WHO HELD THAT THE ASSESSMENT HAD BEEN COMPLETED WITHOUT AFFORDING ADE QUATE OPPORTUNITY TO THE ASSESSEE. THE CIT(A) HIMSELF EXA MINED THE ITA NO.4849/M/07 2 VARIOUS ADDITIONS AND DISALLOWANCES AND GAVE PARTIA L RELIEF, AGAINST WHICH THE DEPARTMENT IS IN APPEAL. IN DOING SO, THE CIT(A) HAS REFERRED TO SEVERAL FACTS AND SUBMISSION S MADE BY THE ASSESSEE BEFORE HIM. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE TIME OF THE HEARING, IT WAS FAIRLY STATED ON BEHALF OF THE ASSE SSEE THAT THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER FOR A FRESH ASSESSMENT BECAUSE THE CIT(A) HAS REFERRED TO SEVER AL FACTS AND SUBMISSIONS BROUGHT BY THE ASSESSEE BEFORE HIM WITH OUT GIVING OPPORTUNITY TO THE ASSESSING OFFICER AS ENVISAGED B Y RULE 46A OF INCOME TAX RULES. WE HAVE HEARD THE LEARNED D.R. WH O DID NOT HAVE ANY OBJECTION TO THE MATTER BEING RESTORED TO THE ASSESSING OFFICER WITH SUITABLE DIRECTIONS. HAVING TAKEN NOT E OF THE SUBMISSIONS OF THE BOTH SIDES, WE ARE SATISFIED THA T THIS IS A CASE WHERE THE MATTER SHOULD RECEIVE A FRESH LOOK B Y THE ASSESSING OFFICER. THE CIT(A) HAS NO DOUBT HELD AN ENQUIRY BY HIMSELF WHICH HE IS ENTITLED TO DO UNDER LAW BUT TH E ONLY DIFFICULTY IS THAT THE FACTS AND MATERIAL BROUGHT B Y THE ASSESSEE BEFORE HIM OUGHT TO HAVE BEEN PLACED BEFORE THE ASS ESSING OFFICER FOR COMMENTS OR REBUTTAL. THE PROCEDURE HAS NOT BEEN FOLLOWED BY HIM. WE THEREFORE SET ASIDE THE ORDERS OF THE INCOME-TAX AUTHORITIES AND RESTORE THE ASSESSMENT T O THE FILE OF THE ASSESSING OFFICER FOR BEING COMPLETED AFRESH IN ACCORDANCE WITH LAW AND AFTER AFFORDING DUE OPPORTUNITY TO THE ASSESSEE. 5. THE APPEAL OF THE DEPARTMENT IS ACCORDINGLY TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 26 TH DAY OF MARCH, 2010. SD/- ( R.K. PANDA ) SD/- ( R.V.EASWAR ) ACCOUNTANT MEMBER SENIOR VICE PRESIDENT MUMBAI, DATED 26 TH MARCH , 2010. SOMU ITA NO.4849/M/07 3 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-MC-XVIII, MUMBAI. 4. THE CIT(A)-XVIII, MUMBAI 5. THE DR J BENCH /TRUE COPY/ BY ORDE R ASSTT. REGISTRAR, I.T.A.T, MUMBAI