VALLEY RESORT DEVELOPMENT CO. P.LTD, MUMBAI V. ITO 4(3)(3), MUMBAI

ITA 4945/MUM/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4417 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Bench Allotted: F
• Next Hearing Date: 18-11-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 22-06-2011
• Court: TRIBUNAL
• Assessee Lawyers: R M JAIN
• Keywords: Additional evidence
• Section: 145; 144

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , , , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.4945/MUM/2011 ASSESSMENT YEAR: 2007-08 VALLEY RESORT DEVELOPMENT CO. P. LTD. R.NO.90, DIAMOND MANISON, 4 TH FLOOR, 366/368 KALBADEVI RD. MUMBAI-400002 / VS. ITO 4(3)(3) 6 TH FLOOR, R. NO.637, AAYAKAR BHAVNA, M.K. RD. MUMBAI-400020 ( APPELLANT ) ( REVENUE ) P.A. NO. AABCV0618D ASSESSEE BY SHRI R.M. JAIN (A R) REVENUE BY SHRI SANTOSH MANKOSKAR (DR) !' / DATE OF HEARING : 24/11/2015 !' / DATE OF ORDER: 6/01/2016 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEAL S)-8, VALLEY RESORT DEVELOPMENT CO. 2 MUMBAI {(IN SHORT CIT(A)}, DATED 24.03.2011 FOR T HE ASSESSMENT YEAR 2007-08, DECIDED AGAINST THE ASSESS MENT ORDER PASSED BY THE ASSESSING OFFICER (IN SHORT AO ) U/S 144 OF THE ACT, ON THE FOLLOWING GROUNDS: THE FOLLOWING GROUNDS OF APPEAL ARE INDEPENDENT OF AND WITHOUT PREJUDICE TO ONE ANOTHER. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL)-8 MUMBAI (HEREINAFTER REFERRED TO CIT(A)) ERRED IN CONFIRMIN G THE FOLLOWING ADDITIONS & DISALLOWANCES WHILE FRAMING T HE ASSESSMENT ORDER U/S 144 OF THE INCOME TAX ACT 1961 , (HEREINAFTER REFERRED TO AS THE ACT). THE APPELLANT SUBMITS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE FOLLOWING ADDITIONS AND DISALLOWANCES MADE BY THE ITO ARE NOT WARRANTED AND THE ITO BE DIRECTED TO BE DELED. 1. LEARNED CIT (A) HAS ERRED IN ALLOWING THE ASSESS MENT COMPLETED BY ITO U/S. 144 OF THE I.T. ACT 1961. 2. LEARNED CIT (A) HAS ERRED TO REJECTION OF THE AC COUNTS OF THE ASSESSEE U/S. 145 OF THE I.T. ACT 1961. 3. LEARNED CIT (A) HAS ERRED TO CONFIRMING THE ADDI TION MADE BY LEARNED ITO AMOUNTING TO RS.38,920/- AN ACCOUNT OF ENTRY FEES. 4. LEARNED CIT (A) HAS ERRED TO CONFIRMING THE ADDI TION MADE BY LEARNED ITO AMOUNTING TO RS.3,50,152/- ON ACCOUNT OF EXPENSES. 5. LEARNED CIT (A) HAS ERRED TO CONFIRMING THE ADDI TION MADE BY LEARNED ITO AMOUNTING TO RS.2,56,000/- ON ACCOUNT OF SALARY EXPENSES. VALLEY RESORT DEVELOPMENT CO. 3 6. LEARNED CIT (A) HAS ERRED TO CONFIRMING THE ADDI TION MADE BY LEARNED ITO AMOUNTING TO RS.22,89,800/- ON ACCOUNT OF UNEXPANDED CASH AUDIT. 7. LEARNED CIT (A) HAS ERRED TO CONFIRMING THE ADDITIO N MADE BY LEARNED ITO AMOUNTING TO RS.2,00.000/- ON ACCOUNT OF MISC. INCOME ON ACCOUNT OF SALES OF LAND . 8. LEARNED CIT (A) HAS ERRED TO CONFIRMING THE CLAI M OF EXEMPTED DIVIDEND INCOME AMOUNTING TO RS. 1,48,9751- WHICH WAS ALLOWED BY THE LEARNED ITO IN THE REMAND ORDER . 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE B Y SHRI R.M. JAIN, AUTHORISED REPRESENTATIVE (AR) ON B EHALF OF THE ASSESSEE AND BY SHRI SANTOSH MANKOSKAR, DEPARTM ENTAL REPRESENTATIVE (DR) ON BEHALF OF THE REVENUE. 3. THE ASSESSEE HAS ALSO FILED AN ADDITIONAL GROUND W ITH REGARD TO U/S 143(2) WHICH WAS WITHDRAWN DURING THE COURSE OF HEARING BY THE LD. COUNSEL. 3.1. DURING THE COURSE OF HEARING, IT WAS SUBMITTED BY THE LD. COUNSEL THAT THE ASSESSMENT IS IN THIS CASE WAS COM PLETED EX- PARTE . THE PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT VA RIOUS ADDITIONS/DISALLOWANCE HAS BEEN MADE BY THE AO, WIT HOUT APPLICATION OF MIND. HE SHOWED US VARIOUS INSTANCES WHEREIN INCORRECT FACTS HAVE BEEN RECORDED BY THE AO WHILE MAKING THE ADDITIONS/DISALLOWANCE. IT WAS FURTHER SUBMITTED TH AT AN APPLICATION WAS FILED BEFORE LD. CIT(A), REQUESTING OBTAINING REMAND REPORT OF THE AO ON THE ADDITIONAL EVIDENCES FILED BY VALLEY RESORT DEVELOPMENT CO. 4 THE ASSESSEE, BUT IT WAS REJECTED BY THE LD. CIT(A) . IT WAS FURTHER SUBMITTED THAT EX-PARTE ORDER OF THE AO WAS WRONGLY UPHELD BY THE LD. CIT(A). ON THE OTHER HAND, LD. DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 3.2. WE HAVE GONE THROUGH THE ORDERS OF LOWER AUTHORITI ES AND PAPER BOOK FILED BY THE ASSESSEE. IT IS NOTED BY US THAT ASSESSMENT ORDER WAS FRAMED EX-PARTE BY THE AO. IT IS FURTHER NOTED THAT THERE IS CONTRADICTION IN THE FACTS AS N ARRATED IN THE ASSESSMENT ORDER AND AS SHOWN TO US BY THE LD. COUN SEL ON THE BASIS OF DOCUMENTS IN THE PAPER BOOK. FOR EXAMP LE IT HAS BEEN MENTIONED BY THE AO IN THE ASSESSMENT ORDER TH AT VALUE OF LAND SOLD DURING THE YEAR HAS NOT BEEN SHOWN IN THE BOOKS. IT HAS BEEN SHOWN BY THE LD. COUNSEL THAT LAND HAS BEEN DULY RECORDED IN THE BOOKS OF ACCOUNTS. THERE WERE OTHER INCIDENCES OF THE SIMILAR NATURE. IT IS FURTHER NOTED BY US TH AT LD. CIT(A) ALSO REFUSED TO CONSIDER ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. THUS, WE FIND THAT JUSTICE HAS NOT BEEN G IVEN TO THIS CASE, AND ISSUES HAVE BEEN DECIDED BY BOTH OF THE L OWER AUTHORITIES WITHOUT PROPER APPLICATION OF MIND. IN VIEW OF THESE FACTS AND CIRCUMSTANCES AND WITH A VIEW TO RENDER J USTICE TO THIS CASE, WE FIND IT APPROPRIATE TO SEND ALL THE I SSUES RAISED BY THE ASSESSEE IN THE GROUNDS BEFORE US, BACK TO T HE FILE OF THE AO TO BE DECIDED AFRESH AFTER GIVING ADEQUATE OPPOR TUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE SHALL ALSO EX TEND REQUISITE COOPERATION TO THE AO BY PROVIDING DETAIL S AND DOCUMENTS AS MAY BE REQUIRED BY THE AO AND AS MAY B E CONSIDERED APPROPRIATE BY THE ASSESSEE, AS PER LAW AND FACTS. VALLEY RESORT DEVELOPMENT CO. 5 THUS, ALL THE ISSUES RAISED BY THE ASSESSEE BEFORE US ARE SENT BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JANUARY, 2016. SD/- (SANJAY GARG ) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER MUMBAI; $ DATED : 6 /01/2016 CTX? P.S/. .. #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. &'( / THE APPELLANT 2. )*'( / THE RESPONDENT. 3. +! + , ( & ) / THE CIT, MUMBAI. 4. +! + , / CIT(A)- , MUMBAI 5. /0 )12 , +! &' 12!3 , / DR, ITAT, MUMBAI 6. 4 / GUARD FILE. / BY ORDER, */& ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI