EVERSHINE GLASS TRADERS, MUMBAI V. ITO 24(1)(4), MUMBAI

ITA 5137/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1318 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 15-12-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 12-08-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D SONGATE
• Assessee Lawyers: AJAY R SINGH
• Keywords: Opportunity of being heard; Additional evidence
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH: MUMBAI BEFORE SHRI R S SYAL, ACCOUNTANT MEMBER AND SHRI V D RAO, JUDICIAL MEMBER ITA NO 5137/MUM/2008 (ASSESSMENT YEAR: 2003-04) M/S EVERSHINE GLASS TRADERS, GALA NO 2, MORYA COMPOUND, OPP GENERAL A K VAIDYA MARG, DINDOSHI, MALAD (E), MUMBAI -400 097 PAN: AAAFE 9369 G VS INCOME TAX OFFICER -24(1)(4), MUMBAI APPELLANT RESPONDENT APPELLANT BY: MR AJAY R SINGH RESPONDENT BY: MR D SONGATE ORDER PER R S SYAL, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDE R PASSED BY CIT (A) ON 11.6.2008 IN RELATION TO ASSESSMENT YEAR 2003-04. 2. FIRST GROUND IS AGAINST THE INADEQUATE OPP ORTUNITY PROVIDED BY THE ASSESSING OFFICER IN FINALISING THE ASSESSMENT U/S 144 R.W.S 147. GROUND NO 2 IS AGAINST THE SUSTENANCE OF GP ADDITION OF RS 64,4 84/- BY UPHOLDING THE ESTIMATION OF GP RATE AT 10%. GROUND NO 3 IS AGAIN ST THE CONFIRMATION OF ADDITION OF RS 51,000/- ON ACCOUNT OF UNPROVED CASH MADE U/S 68. LAST GROUND IS AGAINST THE CONFIRMATION OF ADDITION OF U NPROVED SUNDRY CREDITORS AMOUNTING TO RS 10,60,791/-. ITAS 5137/MUM/2008 M/S EVERSHINE GLASS TRADERS 2 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ORIGINAL RETURN WAS FILED ON 31.7.2003 DECLARING TOTAL INCOME OF RS 25,412/-. WHILE COMPLETING THE ASSESSMENT FOR AY 2004-05, THE ASSESSING OFFICER NO TED CERTAIN BOGUS SUNDRY CREDITORS AND DEBTORS. ON THE BASIS OF SUCH DECISI ON, THE ASSESSMENT FOR ASSESSMENT YEAR UNDER CONSIDERATION WAS REOPENED B Y WAY OF NOTICE U/S 148. IN THE ABSENCE OF ANY REPRESENTATION FROM THE ASSES SEES SIDE, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 144 R.W.S 147 MAKING CERTAIN ADDITIONS. IN THE FIRST APPEAL, THE LEARNED CIT (A) PARTLY ALL OWED THE ASSESSEES APPEAL. THE ASSESSEE IS IN APPEAL AGAINST THE ADDITIONS SUS TAINED. 4. AT THE VERY OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE PLACED ON RECORD AFFIDAVIT FILED BY THE PARTNER OF THE ASSESS EE-FIRM STATING REASONS FOR NON-APPEARANCE BEFORE THE ASSESSING OFFICER. IT HA S BEEN AVERRED IN THIS AFFIDAVIT THAT CERTAIN ADDITIONAL EVIDENCE WAS RECE IVED BY THE ASSESSEE AFTER THE PASSING OF THE IMPUGNED ORDER WHICH HAS BEARING ON THE ISSUES IN APPEAL. THE LEARNED AUTHORISED REPRESENTATIVE INVITED OUR A TTENTION TO THE ADDITIONAL EVIDENCE FILED BEFORE THE TRIBUNAL FOR THE FIRST TI ME AND STATED THAT IT WAS NOT POSSIBLE TO FILE SUCH EVIDENCE BEFORE THE AUTHORITI ES BELOW FOR THE REASONS BEYOND ASSESSEES CONTROL. IT WAS, THEREFORE, PRAY ED THAT ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE TO FILE EVID ENCE IN SUPPORT OF THE ADDITIONS SUSTAINED BY THE LEARNED CIT (A), WHICH A RE SUBJECT MATTER OF THIS APPEAL. NO SERIOUS OBJECTION WAS TAKEN BY THE LEAR NED DEPARTMENTAL REPRESENTATIVE. 5. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD, IT IS NOTICED THAT ASSESSMENT IN THIS CASE COMPLETED U/S 144 R W S 147. THE ASSESSEE HAS EXPLAINED THE REASONS FOR NON-APPE ARANCE BEFORE THE ASSESSING OFFICER, WITH WHICH WE ARE SATISFIED. SI NCE THE ASSESSEE HAS FILED ITAS 5137/MUM/2008 M/S EVERSHINE GLASS TRADERS 3 ADDITIONAL EVIDENCE BEFORE US CLAIMING TO BE RELEVA NT FOR THE ADDITIONS SUSTAINED IN THE FIRST APPEAL, IN OUR CONSIDERED OP INION IT WOULD BE JUST AND FAIR IF THE IMPUGNED ORDER, ON THE ADDITIONS SUSTAI NED BY THE LEARNED CIT (A) IS SET ASIDE TO THAT EXTENT AND THE MATTER IS RESTO RED TO THE FILE OF ASSESSING OFFICER FOR CONSIDERING THE ADDITIONAL EVIDENCE IN SUPPORT OF THE ADDITIONS SUSTAINED. WE ORDER ACCORDINGLY. NEEDLESS TO SAY T HE ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY OF BEING HEARD BY THE ASSE SSEE IN THE FRESH ROUND. 6. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THE 25TH DAY OF JUNE 2010. SD/- (V D RAO) JUDICIAL MEMBER SD/- (R S SYAL) ACCOUNTANT MEMBER MUMBAI, DATE: 25TH JUNE 2010 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) -XXIV, MUMBAI. 4) THE CIT-24, MUMBAI. 5) THE D.R. E BENCH, ITAT, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR CHAVAN* I.T.A.T., MUMBAI ITAS 5137/MUM/2008 M/S EVERSHINE GLASS TRADERS 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 22.05.2010 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 22.05.2010 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS 7 FILE SENT TO THE BENCH CLERK SR.PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER *