SANTOSH MUDDU SHETTY, MUMBAI V. ITO WD 25(2)(3, MUMBAI

ITA 5089/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8371 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 20-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.5089/MUM/2012 ASSESSMENT YEAR: 2009-10 MR. SANTOSH SHETTY, C-8, LOVELY VILLA, LIC COLONY, BORIVALI (W), MUMBAI-400103 / VS. INCOME TAX OFFICER - 25(2)(3), C-11, 1 ST FLOOR, PRATYAKSHKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400051 ( ! /ASSESSEE) ( ' / REVENUE) P.A. NO. AKGPS1872C ! / ASSESSEE BY SHRI PARESH GOHIL ' / REVENUE BY SHRI VISHWAS MUNDHE-DR # ' $ ! % / DATE OF HEARING : 23/02/2017 $ ! % / DATE OF ORDER: 24/02/2017 SANTOSH MUDDU SHETTY ITA NO.5089/MUM/2012 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 29/05/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, BROADLY NON-ADMISSION OF ADDITIONAL EVIDENCE FILED UNDER RULE- 46A OF THE INCOME TAX RULES-1962 (HEREINAFTER THE R ULES), BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL). 2. DURING HEARING OF THIS APPEAL, SHRI PARESH GOHI L, LD. COUNSEL FOR THE ASSESSEE, ADVANCED ARGUMENTS, WHICH IS IDENTICAL TO THE GROUND RAISED BY CONTENDING THAT T HE PRINCIPLE OF NATURAL JUSTICE WAS VIOLATED BY THE ASSESSING OF FICER AS WELL AS BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL). PLEA WAS ALSO RAISED THAT THE ASSESSEE IS PRIMA-FACIE HAVING GOOD CASE IN HIS FAVOUR AND THE ADDITIONAL EVIDENCE GOES TO T HE ROOT OF THE MATTER. ON THE OTHER HAND, SHRI VISHWAS MUNDHE , LD. DR, DEFENDED THE ORDER OF THE LD. COMMISSIONER OF INCOM E TAX (APPEAL). 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS ENGAGED IN THE ACTIVITY OF CHOREOGRAPHY, DECLARED INCOME OF RS.16,18,774/- IN HIS RETURN FILED ON 08/03/2010. AT THE TIME OF FILING OF RETU RN, THE ASSESSEE SHOWED PROFESSIONAL INCOME. THE LD. ASSESS ING OFFICER ASKED THE ASSESSEE TO FILE THE REVISED STAT EMENT OF INCOME/EXPENDITURE. THE ASSESSEE FILED THE DETAILS. THE LD. ASSESSING OFFICER MADE ADDITION OF RS.67,32,325/-. THE STAND SANTOSH MUDDU SHETTY ITA NO.5089/MUM/2012 3 OF THE ASSESSEE IS THAT THE EXPENSES WERE NOT INFLA TED BY THE ASSESSEE AND THE FACTUAL MATRIX WAS NOT CONSIDERED BY THE ASSESSING OFFICER. IT IS NOTED THAT ON APPEAL BEFOR E THE LD. COMMISSIONER OF INCOME TAX (APPEAL), THE ASSESSEE R AISED VARIOUS GROUNDS AND CLAIMED THAT THE ASSESSMENT WAS FRAMED IN HURRIED MANNER THAT TOO WITHOUT PROVIDING ADEQUA TE OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE ASKED THE LD. COMMISSIONER OF INCOME TAX (APPEAL) TO REMAND THE M ATTER BACK TO THE FILE OF THE LD. ASSESSING OFFICER FOR R ECONSIDERATION. HOWEVER, THE ADDITIONAL EVIDENCE, AS CLAIMED BY THE ASSESSEE, FILED BEFORE THE LD. COMMISSIONER OF INCOME TAX (AP PEAL) UNDER RULE-46A OF THE RULES WAS NOT ADMITTED CAUSIN G UNDUE LOSS TO THE ASSESSEE. THE ASSESSEE HAS FILED A PAPE R BOOK BEFORE US RUNNING INTO 1 TO 144 PAGES OUT OF WHICH PAGES 44 TO 144 WERE CLAIMED TO BE ADDITIONAL EVIDENCE. CONSIDE RING THE TOTALITY OF FACTS, WE ARE OF THE VIEW THAT THE ADDI TIONAL EVIDENCE FILED BEFORE THE LD. COMMISSIONER OF INCOME TAX (AP PEAL) SHOULD HAVE BEEN CONSIDERED AS NO PERSON SHOULD BE CONDEMNED UNHEARD. THUS, KEEPING IN VIEW, THE PRINC IPLE OF NATURAL JUSTICE, WE ADMIT THE ADDITIONAL EVIDENCE A ND SO THAT NO PREJUDICE IS CAUSED TO EITHER SIDE, REMAND THE A PPEAL TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) FOR ADJUDICATION IN ACCORDANCE WITH LAW. THE ASSESSEE B E GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH THE ADDITIONAL EVIDENCE OR ANY OTHER EVIDENCE, IF ANY, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL). THE LD. COMMISSIONER OF INCOME TAX (APPEAL) IS DIRECTED TO CONSIDER SANTOSH MUDDU SHETTY ITA NO.5089/MUM/2012 4 THE EVIDENCE AND DECIDE IN ACCORDANCE WITH LAW. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ON LY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 23/02/2017. SD/- SD/- ( RAMIT KOCHAR ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # MUMBAI; ' DATED : 24/02/2017 F{X~{T? P.S / (' %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. )*+, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / # 0! ( )* ) / THE CIT, MUMBAI. 4. / / # 0! / CIT(A)- , MUMBAI 5. 2'3 -! , / )*% ) 4 , # / DR, ITAT, MUMBAI 6. 5 6 / GUARD FILE. / BY ORDER, .2*! -! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # / ITAT, MUMBAI,