BOMBAY MERCANTILE CO-OPERATIVE BANK LTD, MUMBAI V. ACIT 1(3), MUMBAI

ITA 5163/MUM/2010

• Counselvise Citation: 516319914 RSA 2010
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 22-06-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRADEEP SHARMA
• Assessee Lawyers: W HASSAN
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI, J. SUDHAKAR REDDY, ACCOUNTANT MEMBER A ND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 5163/MUM./2010 (ASSESSMENT YEAR : 2005-06 ) BOMBAY MERCANTILE CO. OP. BANK LTD. 78, MOHAMMADALI ROAD MUMBAI 400 003 PAN AAAB0169J .. APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX-1(3) AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400 020 .... RESPONDENT ASSESSEE BY : MR. W. HASSAN REVENUE BY : MR. PRADEEP SHARMA DATE OF HEARING 24.8.2011 DATE OF ORDER 30.8.2011 O R D E R PER J. SUDHAKAR REDDY, A.M. THIS APPEAL PREFERRED BY THE ASSESSEE, IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 3 RD FEBRUARY 2010, PASSED BY THE COMMISSIONER (APPEALS)-I, MUMBAI, FOR ASSESSMENT YEAR 2005-06. 2. GROUND NO.1, READS AS FOLLOWS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN HOLDING THAT THE GROUND NO.1 IS GENERAL IN NATURE AND NEEDS NO SPECIFIC ADJUDICATION. BOMBAY MERCANTILE CO. OP. BANK LTD . ITA NO.5163/M./2010 2 3. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE, MR. W. HASSAN, DID NOT WISH TO PRESS THIS GROUND, TO WHICH, LEARNED DEPART MENTAL REPRESENTATIVE, MR. PRADEEP SHARMA, DID NOT OBJECT. CONSEQUENTLY, W E DISMISS THIS GROUND AS NOT PRESSED . 4. GROUNDS NO.2 AND 3, READ AS FOLLOWS 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN RESTORING THE MATTER BA CK TO THE A.O. FOR VERIFICATION IN RESPECT OF EXCESS PROVISION OF NPA OF EARLIER YEARS OF ` 15,68,52,000 AND EXCESS PROVISION OF STANDARD ASSET S WRITTEN BACK FOR ` 55,00,000 WHEN FULL DETAILS OF THESE PROVISIONS WE RE FILED BEFORE HIM. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) OUGHT TO HAVE DELETED THE ADDITI ONS IN RESPECT OF EXCESS PROVISIONS OF NPA OF EARLIER YEARS OF ` 15,68,52,000 AND THE EXCESS PROVISION OF STANDARD ASSETS WRITTEN BACK FO R ` 55,00,000 AS THE APPELLANT HAD FILED FULL DETAILS OF THESE PROVI SIONS TO THE CIT(A) DURING THE COURSE OF THE HEARING. 5. BOTH PARTIES AGREE BEFORE US THAT THE COMMISSIONER (APPEALS) ERRED IN RESTORING THE ISSUE BACK TO THE FILE OF ASSESSING O FFICER FOR FRESH ADJUDICATION AFTER VERIFICATION, THOUGH, HE IS NOT EMPOWERED TO DO SO AFTER THE AMENDMENT BROUGHT IN STATUTE BY FINANCE ACT, 2001, WITH EFFECT FROM 1 ST JUNE 2001. UNDER THESE CIRCUMSTANCES, SINCE THE COM MISSIONER (APPEALS) COMMITTED A MISTAKE, WE DEEM IT FIT TO SET ASIDE TH E ORDER PASSED BY THE COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK T O HIS FILE FOR DENOVO ADJUDICATION IN ACCORDANCE WITH LAW. IF THE COMMISS IONER (APPEALS) DEEMS IT NECESSARY, HE MAY CALL FOR THE REMAND REPORT FROM T HE ASSESSING OFFICER AND THEREAFTER DISPOSE OFF THE APPEAL IN ACCORDANCE WIT H LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THESE GROUNDS ARE, THUS, ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.8.2011 SD/- VIJAY PAL RAO JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 30 TH AUGUST 2011 BOMBAY MERCANTILE CO. OP. BANK LTD . ITA NO.5163/M./2010 3 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, B BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI DATE INITIAL 1. DRAFT DICTATED ON 24.8.2011 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 26.8.2011 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 29.8.2011 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 29.8.2011 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 29.8.2011 SR.PS 6. DATE OF PRONOUNCEMENT 30.8.2011 SR.PS 7. FILE SENT TO THE BENCH CLERK 30.8.2011 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER