SHOP 245 SEVEN INDIA LATD, MUMBAI V. DCIT 8(2), MUMBAI

ITA 5032/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8063 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 10-03-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 03-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMANT LAL
• Assessee Lawyers: KESHAV BHUJLE
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NO.5032/MUM/2009 : ASST.YEAR 2004-2005 M/S.SHOP 24 SEVEN INDIA LIMITED IN CENTRE, 49/50 MIDC, 12 TH ROAD ANDHERI (EAST), MUMBAI 400 020. PAN : AACCP1555A. VS. THE DY.COMMISSIONER OF INCOME-TAX CIRCLE 8(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI KESHAV BHUJLE RESPONDENT BY : SHRI HEMANT LAL O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE CIT(A) ON 26.06.2009 IN RELATION TO ASSESSMENT YEAR 2004-2005 . 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF DISALLOWANCE OF LOSS OF RS.2,85,81,400 RETURNED BY THE ASSESSEE. FURTHER THE ASSESSEE IS AGGRIEVED AGAINST THE ASSESSMENT ORDER HAVING PASSED U/S.144 AND THE LEARNED CIT(A) NOT ADMITTING ADDITIONAL EVIDENCE FI LED BEFORE HIM. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE FURNISH ED ITS RETURN DECLARING LOSS OF RS.2.85 CRORES. ACCORDING TO THE ASSESSMENT ORDER S INCE THE ASSESSEE DID NOT FILE NECESSARY EVIDENCE, THE ASSESSING OFFICER FRAMED AS SESSMENT U/S.144 AND THE LOSS SHOWN BY THE ASSESSEE-COMPANY AT RS.2.85 CRORES WAS NOT ALLOWED. IN THE FIRST APPEAL THE ASSESSEE CHALLENGED THE ACTION OF THE A. O. IN FRAMING ASSESSMENT U/S.144 AND ALSO SOUGHT TO FILE ADDITIONAL EVIDENCE IN SUPP ORT OF ITS CLAIM OF LOSS. THE LEARNED CIT(A) REFUSED TO ADMIT THE ADDITIONAL EVID ENCE AND UPHELD THE DISALLOWANCE MADE BY THE A.O. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS PLACED ON RECORD TWO PAPER BOOKS CONSISTING OF SEVERAL ITA NO.5032/MUM/2009 M/S.SHOP 24 SEVAN INDIA LIMITED. 2 PAGES. IT WAS SUBMITTED BY THE LEARNED A.R. THAT TH E ASSESSING OFFICER DID NOT ALLOW ADEQUATE OPPORTUNITY TO THE ASSESSEE TO SUPPO RT THE LOSS CLAIMED BY IT. IT WAS PUT FORTH THAT THE CASE WAS TAKEN UP FOR HEARING AN D ON THE VERY FIRST INSTANCE THE ASSESSEE FURNISHED DETAILS IN PART. WHEN THE ASSESS EE APPROACHED THE ASSESSING OFFICER ON THE SECOND DAY OF HEARING, THE LEARNED A .R. EXPLAINED, THAT THE ASSESSING OFFICER INFORMED ABOUT THE CHANGE IN THE JURISDICTION OF THE CASE. THEREAFTER THE DISALLOWANCE OF LOSS WAS MADE. WITHO UT GOING INTO THE MERITS OF THE CASE, IN OUR CONSIDERED OPINION, THE ENDS OF JUSTIC E WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTO RED TO THE FILE OF A.O. WE ORDER ACCORDINGLY AND DIRECT HIM TO MAKE ASSESSMENT AFRES H AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. NEEDLESS TO SAY THE ASSESSEE WILL BE AT LIBERTY TO LEAD ANY FRESH EVIDENCE IN TH E DE NOVO PROCEEDINGS. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 16 TH DAY OF MARCH, 2011 . SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 16 TH MARCH, 2011. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) VII, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.