SHREE RAM INFRASTRUCTURE LTD, MUMBAI V. ITO WD 7(2)(3), MUMBAI

ITA 5463/MUM/2011

• Counselvise Citation: 546319914 RSA 2011
• Duration Of Justice: 2 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 10-09-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 22-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C SRINIVAS REDDY
• Assessee Lawyers: AJAY R SINGH; DR K SHIVARAM
• Keywords: Business income; Principle of natural justice; Additional evidence
• Section: 143(3); 142(1); 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO. 5463/MUM/2011 ASSESSMENT YEAR : 2007-08 M/S. SHREE RAM INFRASTRUCTURE LTD. M/S. SHREE RAM URBAN INFRASTRUCTURE GANPATRAO KADAM MARG LOWER PAREL MUMBAI-400 013. PAN NO.AACCS 0454 P VS. INCOME TAX OFFICER CIRCLE-7(2)(3) INCOME TAX OFFICE AAYAKAR BHAVAN MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : DR. K. SHIVARAM AND SHRI AJAY R. SINGH REVENUE BY : SHRI C. SRINIVAS REDDY DATE OF HEARING : 10/09/2013 DATE OF PRONOUNCEMENT : 17 / 0 9 /2013 O R D E R PER BENCH: THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-13, MUMBAI DATED 08/03/2011 FOR ASSESSMENT YEAR 2007-08 . WE HAVE HEARD THE LD. COUNSEL AND THE LD. DR. 2. ASSESSEES RETURN OF INCOME FOR THE YEAR OFFERIN G INCOME U/S. 115JB WAS SELECTED FOR SCRUTINY. IN THE COURSE OF A SSESSMENT PROCEEDINGS AO ISSUED SHOW CAUSE LETTER U/S. 142(1) CALLING FOR DETAILS VIDE LETTER DATED 23.12.2009 ASKING FOR COMPLIANCE BY 29/12/2009 AND AS ASSESSEE HAS NOT COMPLIED, COMPLETED THE ASSESSM ENT U/S. 143(3) ON ITA NO.5463/M/11 A.Y.07-08 2 THE BASIS OF EARLIER SUBMISSIONS AND INFORMATION AV AILABLE ON RECORD. ASSESSING OFFICER TREATED THE INCOME FROM SERVICES AS INCOME FROM HOUSE PROPERTY AS IN EARLIER YEARS, REJECTED BOOKS OF ACC OUNT AND ESTIMATED INCOME AT 1% ON TURNOVER AND TREATED OTHER RECEIPTS UNDER THE HEAD OTHER SOURCES. ASSESSEE APPEALED BEFORE CIT(A) AND FILED ADDITIONAL EVIDENCE IN SUPPORT AS ASSESSEE WAS NOT GIVEN SUFFI CIENT OPPORTUNITY BY ASSESSING OFFICER. LD. CIT(A) VIDE THE ABOVE REFERR ED ORDER DISMISSED THE APPEAL WITHOUT ADMITTING ADDITIONAL EVIDENCE, AND R EJECTING OTHER CONTENTIONS. 3. APART FROM RAISING THE GROUNDS ON ISSUES ON MERI TS, THE ASSESSEE RAISED THE FOLLOWING ADDITIONAL GROUNDS VIDE LETTER 06/09/2013 WHICH ARE ADMITTED BEING LEGAL IN NATURE. THE ADDITIONAL GROU NDS ARE AS UNDER : I. NATURAL JUSTICE 1. THE LD. CIT(A) ERRED IN UPHOLDING THE ORDER OF A O WITHOUT PROVIDING PROPER AND SUFFICIENT OPPORTUNITY OF HEAR ING TO ASSESSEE. II. ADDITIONAL EVIDENCE FILED UNDER RULE 46A NOT AD MITTED 2. THE LD. CIT(A) ERRED IN NOT ADMITTING THE ADDITI ONAL EVIDENCE FILED BEFORE IT IN SUPPORT OF ITS CASE. III. NOT A SPEAKING ORDER 3. THE LD. CIT(A) ERRED IN PASSING A NON-SPEAKING A ND CRYPTIC ORDER, THEREFORE, THE ORDER MAY BE QUASHED OR SET A SIDE. 4. LD. COUNSEL REFERRED TO THE PAPER BOOK AND ORDER OF CIT(A) TO SUBMIT THAT THE ORDER WAS CRYPTIC AND WITHOUT CONSI DERING THE ISSUES ON MERIT. EVEN THE ADDITIONAL EVIDENCE FILED WAS REJEC TED. HE REFERRED TO THE CO-ORDINATE BENCH DECISION IN ITA NO.565/MUM/2008, DATED 5.4.2010 TO SUBMIT THAT THE ISSUE OF BUSINESS INCOME OR H OUSE PROPERTY INCOME ON CERTAIN RECEIPTS OF THE ASSESSEE WAS RESTORED TO THE FILE OF ASSESSING OFFICER IN EARLIER YEAR AND ISSUE WAS PENDING WITH AO. WITH REFERENCE TO THE BALANCE OF ISSUES, IT IS THE PRAYER THAT THE MA TTER CAN BE RESTORED TO ASSESSING OFFICER FOR FRESH EXAMINATION. ITA NO.5463/M/11 A.Y.07-08 3 5. LD. DR HOWEVER, RELIED ON THE ORDERS OF AUTHORIT IES. 6. WE HAVE CONSIDERED THE ISSUES. THERE IS NO DOUBT THAT ASSESSEE WAS GIVEN ONLY SIX DAYS TO COMPLY TO THE LAST OF TH E NOTICE ISSUED AND ASSESSING OFFICER COMPLETED ASSESSMENT ON 31.12.200 9 WITHOUT ANY REPLY FROM ASSESSEE. LD. CIT(A) ALSO SUMMARILY DISMISSED THE ADDITIONAL EVIDENCE FILED BEFORE HIM WITHOUT CONSIDERING THE P RAYER FOR ADMISSION. AS RAISED IN ADDITIONAL GROUNDS, THE LD. CIT(A) ORD ER IS VERY CRYPTIC AND THERE WAS NO DISCUSSION ON VARIOUS ISSUES. ALREADY THE ISSUE OF TREATING CERTAIN RECEIPTS AS BUSINESS INCOME OR HOUSE PRO PERTY INCOME WAS PENDING WITH ASSESSING OFFICER IN ASSESSMENT YEAR 2 003-04 AND ASSESSMENT YEAR 2004-05 WHICH HAS AN EFFECT ON THIS YEAR ALSO. FURTHER NO REASONS WERE OFFERED WHY INCOME WAS ESTIMATED AT 1% REJECTING BOOKS OF ACCOUNT WHICH ARE AUDITED. FOR THESES REASONS, W E ARE OF THE OPINION THAT THE ASSESSMENT OF THIS YEAR IS TO BE RESTORED TO THE FILE OF ASSESSING OFFICER FOR FRESH CONSIDERATION. NEEDLESS TO SAY, T HAT THE ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY TO SUPPORT ITS CONTENTIONS . THEREFORE, THE ORDER OF ASSESSING OFFICER DATED 31/12/2009 AND THE ORDER OF CIT(A) ARE SET ASIDE AND THE ENTIRE ASSESSMENT IS RESTORED TO THE FILE OF ASSESSING OFFICER TO DO IT AFRESH ACCORDING TO LAW AND FACTS, KEEPING IN MIND THE ORDER OF ITAT IN EARLIER YEARS ON THE ISSUE OF TREATING CERT AIN RECEIPTS AS BUSINESS OR HOUSE PROPERTY INCOME. 7. IN THE RESULT, APPEAL BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH SEPTEMBER, 2013. SD/- SD/- (SANJAY GARG) JUDICIAL MEMBER (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER MUMBAI, DATED: 17/09/2013. JV. ITA NO.5463/M/11 A.Y.07-08 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.