MULTICOT TEXTILES P.LTD, MUMBAI V. DCIT 5(2), MUMBAI

ITA 5343/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88588 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 24-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK BATRA
• Assessee Lawyers: K SHIVRAM SHRI RAHUL K HAKANI
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BE NCH, MUMBAI . , ! ' ' ' ' #$ %&'( , #) *+ # ! BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./I .T.A. NO. 5343/MUM/2012 ( , , , , / ASSESSMENT YEAR: 2009-10 M/S. MULTICOT TEXTILES PVT. LTD., SHALIMAR HOUSE, 335, GRANT ROAD, MUMBAI-400 007 / VS. THE DY. C.I.T.-5(2), MUMBAI +- #) ./ ./ ./ PAN/GIR NO. : AAACH 0234G ( -0 / APPELLANT ) .. ( 12-0 / RESPONDENT ) -0 3 # / APPELLANT BY: SHRI K. SHIVRAM SHRI RAHUL K. HAKANI 12-0 4 3 # / RESPONDENT BY: SHRI VIVEK BATRA 4 5) / DATE OF HEARING :09.03.2015 6, 4 5) / DATE OF PRONOUNCEMENT :09.03.2015 *#7 / O R D E R PER N.K. BILLAIYA, AM: THIS IS AN APPEAL BY THE ASSESSEE PREFERRED AGAINS T THE ORDER OF THE LD. CIT(A)-9, MUMBAI DT. 4.6.2012 PERTAINING TO ASS ESSMENT YEAR 2009- 10. ITA NO. 5343/M/2012 2 2. THE ASSESSEE HAS RAISED FOUR SUBSTANTIVE GROUNDS OF APPEAL. BY GROUND NO.(A), THE ASSESSEE HAS CHALLENGED THE VALI DITY OF THE ORDER MADE U/S. 144 OF THE ACT. GROUND NO. (B) RELATES TO THE DISALLOWANCE OF INTEREST OF RS. 72,97,989/-. GROUND NO. (C) RELATES TO THE E STIMATION OF BUSINESS PROFIT AND GROUND NO. (D) RELATES TO THE DENIAL OF SET OFF OF LOSS. 3. THE LD. COUNSEL FOR THE ASSESSEE, AT THE VERY OU TSET, DREW OUR ATTENTION TO THE ASSESSMENT ORDER VIS--VIS THE PAP ER BOOK FILED BEFORE US AND STATED THAT VIDE REPLY TO THE NOTICE DT. 21.10. 2011 ON 28.11.2011, THE ASSESSEE HAD FILED COMPLETE DETAILS AS SOUGHT BY TH E AO YET THE AO DID NOT CONSIDER THE SAME WHILE MAKING THE ASSESSMENT O RDER U/S. 144 OF THE ACT. THE LD. CIT(A) ERRED IN CONFIRMING THE FINDIN GS OF THE AO WITHOUT APPRECIATING THAT THE ASSESSEE HAD COMPLIED WITH TH E REQUIREMENTS MADE BY THE AO. THE LD. COUNSEL FURTHER DREW OUR ATTENT ION TO THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN A.Y. 2006-07 VIDE ITA NO. 5138/M/2010 AND A.Y. 2007-08 VIDE ITA NO. 1856/M/20 11. IT IS THE SAY OF THE LD. COUNSEL THAT IN BOTH THESE YEARS, ON IDE NTICAL ISSUES THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE AO TO DECIDE THE MATTER AFRESH. 4. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY CONCE DED TO THIS. 5. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW AND THE RELEVANT DOCUMENTARY EVIDENCES BROUGHT TO OUR N OTICE. WE HAVE ALSO GONE THROUGH THE DECISIONS OF THE TRIBUNAL IN ASSES SEES OWN CASE FOR A.YRS 2006-07 AND 2007-08. WE FIND THAT IN A.Y. 20 07-08 IN ITA NO. 1856/M/2011, THE TRIBUNAL HAS CONSIDERED THE ISSUE RELATING TO THE DISALLOWANCE OF INTEREST AT PARA-7 OF ITS ORDER WHE REIN THE TRIBUNAL HAS FOLLOWED THE DECISION OF THE TRIBUNAL FOR A.Y. 2005 -06 AND AT PARA-9 ITA NO. 5343/M/2012 3 RESTORED THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION. WE FIND THAT THE FACTS AND ISSUES ARE COMMON, THEREFORE, R ESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH, WE RESTORE T HIS ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION ON THE SAME LINE AS D IRECTED BY THE TRIBUNAL FOR PRECEDING ASSESSMENT YEAR. GROUND NO. B IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSE. 6. IN SO FAR AS THE ESTIMATION OF BUSINESS PROFIT I S CONCERNED, WE FIND THAT THE TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE IN A.Y. 2006-07 IN ITA NO. 5138/M/2010. AT PARA-6 OF ITS ORDER, THE T RIBUNAL HAS FOLLOWED THE DECISION GIVEN IN EARLIER ASSESSMENT YEARS AND RESTORED THE GROUND TO THE FILE OF THE AO WITH A DIRECTION TO REDO THE ASS ESSMENT. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-ORDINATE BENCH, WE RESTORE THIS ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE IT AF RESH FOLLOWING THE DIRECTIONS OF THE TRIBUNAL IN EARLIER ASSESSMENT YE ARS AFTER GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. GROUND NO. C IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 7. THE ISSUE RELATING TO SET OFF OF LOSS HAS NOT BE EN DECIDED BY THE LD. CIT(A). WE, ACCORDINGLY RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO DECIDE THIS ISSUE AFTER GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND NO. D IS ALLOWED FOR STATISTICAL PURPOSE. 8. AS WE HAVE RESTORED THE MATTER RELATING TO THE D ISALLOWANCE OF INTEREST AND ESTIMATION OF BUSINESS PROFIT TO THE F ILE OF THE AO TO BE DECIDED AFRESH, GRIEVANCE RAISED VIDE GROUND NO. A IS ACCORDINGLY DECIDED. ITA NO. 5343/M/2012 4 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 9 TH MARCH, 2015. SD/- SD/- (D.MANMOHAN ) (N.K. BILLAIYA) ! / VICE PRESIDENT #) *+ / ACCOUNTANT MEMBER MUMBAI; 8* DATED : 9 TH MARCH, 2015 . . ./ RJ , SR. PS *#7 *#7 *#7 *#7 4 44 4 15% 15% 15% 15% 9#%,5 9#%,5 9#%,5 9#%,5 / COPY OF THE ORDER FORWARDED TO : 1. -0 / THE APPELLANT 2. 12-0 / THE RESPONDENT. 3. : ( ) / THE CIT(A)- 4. : / CIT 5. %;< 15 , , / DR, ITAT, MUMBAI 6. < = / GUARD FILE. *#7 *#7 *#7 *#7 / BY ORDER, 2%5 15 //TRUE COPY// / . . . . (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI