JAGRUTI KETAN SHETH, MUMBAI V. ITO WD 21(1)(2), MUMBAI

ITA 5353/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8275 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: J
• Next Hearing Date: 17-11-2016
• Assessment Year: 1999-2000
• Appeal Filed On: 22-08-2014
• Court: TRIBUNAL
• Department Lawyers: SAMBIT MISHRA
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 5353/M/2014 (AY 1999 - 2000 ) ITA NO. 5354 /M/2014 (AY 2000 - 2001 ) ITA NO. 5355 /M/2014 (AY 2001 - 2002 ) SMT. JAGRUTI KETAN SHETH, 193, LALIT KUTI CHS, 9 TH GULMOHAR CROSS ROAD, JVPD SCHEME, VILE PARLE (W), MUMBAI 400 049. / VS. THE INCOME TAX OFFICER, WARD 21(1)(2), C - 10, PRATYAKSHKAR BHAVAN, 5 TH FLOOR, BKC, BANDRA (E), MUMBAI - 400 050. ./ PAN : APNPS0141N ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI SHALIN S. DIVATIA / REVENUE BY : SHRI SAMBIT MISHRA / DATE OF HEARING : 16.02.2017 / DATE OF PRONOUNCEMENT : 22 .02.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE THREE APPEALS UNDER CONSIDERATION. ALL THESE APPEALS ARE FILED BY THE ASSESSEE INVOLVING THE ASSESSMENT YEARS 1999 - 2000, 2000 - 2001 AND 2001 - 02. SINCE, THE ISSUES RAISED IN THESE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAS OF THIS ORDER. 2. THE COMMON ISSUE RAISED IN THESE APPEALS RELATES TO THE ADDITION U/S 68 OF THE ACT INVOLVING DIFFERENT CREDITORS. BY THE TIME APPEALS REACH THE TRIBUNAL, THE ADDITION SUSTAINED FOR THESE ASSESSMENT YEARS WORKS OUT TO RS. 8.76 CRS (AY 1999 - 2000); RS. 2.03 CRS (AY 2000 - 2001) AND RS.16.33 CRS FOR THE AY 2001 - 2002. THE CREDITORS INVOLVED ARE ALSO DIFFERENT FOR DIFFERENT ASS ESSMENT YEARS. FOR THE AY 1999 - 2000, THREE CREDITORS IN QUESTION ARE VIZ (I) MANIRAM CONSULTANCY AND INVESTMENT (RS. 8 CRS); (II) SENSEX FINANCIAL CONSULTANCY (RS. 76,38,084/ - ) AND (III) 2 GILTEDGE MANAGEMENT SERVICES (RS. 25,000/ - ). FOR THE AY 2000 - 2001 T HE CREDITORS INCLUDE (I) KETAN SHETH & CO (RS. 1,08,50,000/ - ) AND (II) GILTEDGE FINANCIAL & MANAGEMENT SERVICES (RS. 94,74,000/ - ) . FINALLY, FOR THE AY 2001 - 02 THE SOLITARY CREDITOR IS DALHOUSIE SECURITIES LTD (RS. 16,33,000/ - ). 3. BEFORE US, AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE FILED THE ORDERS OF THE TRIBUNAL IN THE CASE OF SMT. HARSHA NELESH K SHETH VS. ITO FOR THE AYS 1999 - 2000, 2000 - 01 AND 2001 - 02 IN ITA NOS. 4867, 4868 & 4870/M/2014, DATED 30.9.2016, LD COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE SAID JUDGMENT PROVIDES THE GUIDELINES WITH REFERENCE TO THE DISCHARGE OF ONUS FROM THE ASSESSEES SIDE IN MATTERS RELATING TO SECTION 68 OF THE ACT. INVOKING OF THESE PROVISIONS IS THE CORE ISSUE IN ALL THE THREE APPEALS UNDER CONSIDERATION. FURT HER, MENTIONING THAT THE SAID ORDER OF THE TRIBUNAL WAS NOT AVAILABLE TO THE CIT (A) , LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE MATTER CAN BE REMANDED TO THE FILE OF THE AO FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF THE RATIO LAID DOWN IN THE CASE OF SMT. HARSHA NELESH K SHETH (SUPRA). SPECIFYING THAT SOME OF THE CREDITORS ARE COMMON AND THERE ARE DIFFERENT NEW CREDITORS FOR DIFFERENT ASSESSMENT YEARS, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PRINCIPLE LAID DOWN BY THE TRIBUNAL, IN MATTERS OF INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT, IS RELEVANT FOR DECIDING THE ISSUE AFRESH BY THE AO IN THE REMANDING PROCEEDINGS. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. AFTER HEARING BOTH THE PARTIES, WE FIND MERIT IN THE ARGUMENT OF THE LD AR THAT REFERENCE TO THE SAID RATIO RELATING TO THE DISCHARGE OF ONUS FOR THE PURPOSE OF SECTION 68 OF THE ACT. AO IS DIRECTED TO APPLY THE SAID RATIO AND ALSO CONSIDER TH E COMPARABILITY OF THE FACTS OF THE CREDITORS IN QUESTION QUA THE CREDITORS DECIDED BY THE TRIBUNAL IN THE CASE OF SMT. HARSHA NELESH K SHETH (SUPRA). AO SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE SET PRINCIPLES OF NATU RAL JUSTICE AND DECIDE THE ISSUE AFRESH AFTER CONSIDERING THE PAPER BOOKS FILED BY THE ASSESSEE AS WELL AS THE REVENUE DATED 28.7.2016. WITH THESE DIRECTIONS, ALL THE GROUNDS RAISED BY THE ASSESSEE IN ALL THE THREE APPEALS ARE ALLOWED FOR STATISTICAL PURPO SES. 3 5. IN THE RESULT, ALL THE THREE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNC ED IN THE OPEN COURT ON 2 2 N D FEBRUARY, 2017. S D / - S D / - ( PAWAN SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 22.02.2017 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI