NOZER CURSETJI DASTUR, MUMBAI V. ITO(iT) 1(1), MUMBAI

ITA 5279/MUM/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0224 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 20-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Keywords: Additional evidence
• Section: 69

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI G. S. PANNU , AM & SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO . 5279 /MUM/2014 ( / ASSESSMENT YEAR: 2005 - 06 ) NOZER CURSET JI DASTUR C.O. S. R. IRANI & CO. CAS. 304, VARDHAMAN CHAMBERS, 17 - G, CAWASJI PATEL STREET FORT, MUMBAI - 400001 / VS. ITO(IT) 1(1) GR. FLOOR, R. NO. 15, SCINIDA HOUSE, N. M. RD, BALLARD ESTATE - 38 ./ ./ PAN/GIR NO. A HZPD8411E ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI JITENDRA JAIN / RESPONDENTBY : SHRI SUMAN KUMAR / DATE OF HEARING : 10/01 /201 8 / DATE OF PRONOUNCEMENT : 21/02/2018 / O R D E R PER SANDEEP GOSAIN, JUDICIAL MEMBER: THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 10 , MUMBAI 2 I.T.A. NO. 5279 /MUM/201 4 NOZER CURSET JI DASTUR DATED 10.02.14 FOR AY 20 05 - 06 ON THE GROUNDS MENTIONED HEREIN BELOW: - BEING AGGRIEVED BY THE ORDER DATED OF 10TH OF FEBRUARY, 2014 REC EIVED ON 24TH JUNE, 2014 OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 10, MUMBAI (HEREIN AFTER REFERRED TO AS THE 011(A)'], THE APPELLANT BEGS TO PREFER THE INSTANT APPEAL ON FOLLOWING AMONGST OTHER GROUNDS WHICH ARE IN ALTERNATIVE AND WITHOUT PREJUDICE TO EACH OTHER: 1. ADDITION U/S 69: RS. 10,00,000/ - 1.1 THE LEARNED CIT (A) ERRED IN UPHOLDING THE ADDITION MADE BY THE ASSESSING OFFICER (AO) UNDER SECTION 69 OF THE INCOME TAX ACT, 1961 ON AN ERRONEOUS BASIS THAT THE SOURCE OF INVESTMENT IS NOT EXPLAINED ALT HOUGH ALL THE NECESSARY EVIDENCE WAS FILED IN THE COURSE OF PROCEEDINGS. 1.2 THE LEARNED CIT (A) FAILED TO APPRECIATE AND CONSIDER THE PROVISION OF SECTION 69 OF THE INCOME TAX ACT, 1961 ARE NOT ATTRACTED SINCE THE APPELLANT HAS OFFERED EXPLANATION ABOUT T HE NATURE AND SOURCE OF INVESTMENTS SUPPORTED BY DOCUMENTARY EVIDENCE WHICH THE CIT(A) ERRED IN NOT CONSIDERING THESE EVIDENCE AND APPLICATION 3 I.T.A. NO. 5279 /MUM/201 4 NOZER CURSET JI DASTUR MADE UNDER RULE 46A OF THE INCOME TAX RULES, 1963. THE APPELLANT PRAYS FOR FOLLOWING RELIEFS (A) THIS HON'BLE TRI BUNAL BE PLEASED TO DIRECT THE AO TO DELETE THE ADDITION MADE U/S. 69 OF THE INCOME TAX ACT, 1961. (B) ANY OTHER RELIEF, WHICH THE HON'BLE TRIBUNAL DEEMS FIT. 2. AT THE OUTSET LD. AR APPEARING ON BEHALF OF THE ASSESSEE ALTHOUGH HAS CHALLENGED THE ORDER OF LD. CIT(A) IN UPHOLDING THE ADDITIONS MADE BY AO U/S 69 OF THE I.T. ACT BUT AT THE SAME TIME VIDE GROUND NO. 1.2, THE LD. AR DRAWN OUR ATTENTION THAT CIT(A) ERRED IN NOT CONSIDERING THE APPLICATION FILED BY THE ASSESSEE UNDER RULE 46A OF THE I.T. RULES 1963 FOR LEADING ADDITIONAL EVIDENCE. THEREFORE, AT THIS STAGE IT WAS REQUESTED BY LD. AR TO RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO DE CIDE THE APPLICATION FILED BY ASSESSEE UNDER RULE 46A FOR LEADING ADDITIONAL EVIDENCE. 3 . BE THAT AS IT MAY, WITHOUT COMMENTING ANYTHING ON THE MERITS OF THE OTHER GROUNDS RAISED BY THE ASSESSEE, WE ARE OF THE 4 I.T.A. NO. 5279 /MUM/201 4 NOZER CURSET JI DASTUR CONSIDERED VIEW THAT THE INTEREST OF JUSTICE W OULD BE MET IN REMITTING THE MATTER BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO ADJUDICATE AND DECIDE ON MERITS THE REQUEST MADE BY THE ASSESSEE UNDER RULE 46A OF I.T. RULES 1963 BY PASSING SPEAKING ORDER. IT IS NEEDLESS HERE TO MENTION THAT BEFORE PASSING THE ORDER, THE LD. CIT(A) SHALL PROVIDE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. 4. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLEC TION OR EXPRESS ION ON THE MERITS OF THE ISSUE , WHICH SHALL BE ADJUDICATED BY THE CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. WITH THESE DIRECTIONS, THIS GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 5 . IN THE NET RESULT, THE APPEAL F ILED BY THE ASSESSES IS ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST FEB , 2018 SD/ - SD/ - ( G. S. PANNU ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 21 .0 2 .201 8 SR.PS . DHANANJAY 5 I.T.A. NO. 5279 /MUM/201 4 NOZER CURSET JI DASTUR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI