HARISH SHAH, MUMBAI V. ITO 11(1)(2), MUMBAI

ITA 5464/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4487 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 30-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K DHONDIAL J
• Assessee Lawyers: S C TIWARI
• Keywords: Opportunity of being heard

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.5506/MUM/2015 ASSESSMENT YEAR: 2011-12 M/S TESLA TECHNOLOGIES & OXIDATION PVT. LTD. 17/14, TALMAKIWADI, TARDEO ROAD, MUMBAI-400007 / VS. INCOME TAX OFFICER-5(3)(3), ROOM NO.565, AAYAKAR BHAVAN, M.K.ROAD, NEW MARINE LINES, MUMBAI-400020 / ASSESSEE / REVENUE P. A. NO. AABCT4373M $ % & / ASSESSEE BY SHRI S.C. TIWARI, $ % & / REVENUE BY SHRI A.K.DHONDIAL JCIT-DR / DATE OF HEARING 05/01/2016 & / DATE OF ORDER: 05/01/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 20/08/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO U PHOLDING THE ADDITION OF RS.3,12,716/-. ITA NO.5506/MUM/2015 M/S TESLA TECHNOLOGIES & OXIDATION PVT. LTD. 2 2. THE CRUX OF ARGUMENT ADVANCED BY SHRI S.C. TIWARI, LD. COUNSEL FOR THE ASSESSEE, IS THAT THE L D. FIRST APPELLATE AUTHORITY HAS NOT GONE INTO THE ARGUMENTS MADE BY THE ASSESSEE AND THE AT THE RELEVANT TIME, THERE WA S NO BANGALORE BRANCH, THEREFORE, THE ADDITION WAS WRONG LY MADE. IT WAS ALSO CONTENDED THAT IN THE AUDIT REPORT, A P ARTICULAR FIGURE WAS WRONGLY SHOWED, BY THE AUDITOR, FOR WHIC H THE ASSESSEE SHOULD NOT BE PENALIZED. RELIANCE WAS PLAC ED UPON THE DECISION FROM HONBLE APEX COURT IN 82 ITR 361 (SC). ON THE OTHER HAND, THE LD. DR, SHRI A.K. DHONDIAL, DE FENDED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE ITSE LF ACCEPTED THE TRANSACTION OF THE BANGALORE BENCH AND PAID TAXES THEREON, THEREFORE, THE ADDITION WAS RIGHTLY MADE. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE, DECLARED NIL INCOME IN ITS E LECTRONICALLY FILED RETURN ON 22/12/2011, WHICH WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). SINCE, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, NOT ICE U/S 143(2) OF THE ACT WAS SERVED UPON THE ASSESSEE. TH E ASSESSEE ATTENDED THE ASSESSMENT PROCEEDINGS FROM T IME TO TIME AND FURNISHED THE NECESSARY DETAILS CALLED FOR BY THE ASSESSING OFFICER. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS PROVIDED WITH AN INFORMATION, AS PER W HICH, THE ASSESSEE OFFERED RECEIPT OF RS.3,12,716/- AND FURTH ER TO EXPLAIN AS TO WHY THE SAME SHOULD NOT BE ADDED TO T HE TOTAL ITA NO.5506/MUM/2015 M/S TESLA TECHNOLOGIES & OXIDATION PVT. LTD. 3 INCOME OF THE ASSESSEE. THE ASSESSEE VIDE LETTER DA TED 26/12/2013 CLAIMED AS UNDER:- IN COURSE OF ASSESSMENT PROCEEDINGS, YOUR HONOUR H AS PROVIDED US WITH THE ANNUAL INFORMATION REPORT. ON VERIFYING THE SAME, OUR ABOVE CLIENT HAS ASCERTAINED THAT THE SOLITARY TRANSACTIONS AGGREGATING TO RS.3,12,716/- RELATED T O THE BANGALORE BRANCH FOR WHICH THEY HAVE NEITHER ANY AC CESS NOR ANY MEANS OF INFORMATION IN VIEW OF THE DISPUTE AMO NGST THE DIRECTORS. IN VIEW OF THE ABOVE, IT CAN BE SAID THAT IT IS OBS ERVED THAT ASSESSEE HAS STRONGLY DENIED THE ABOVE AMOUNT. SO FAR AS, SHOWING THE SAME, MISTAKABLY IN THE AUDIT REPOR T, THE ASSESSEE HAS TO EXPLAIN THE SAME. THE MANDATE OF TH E CONSTITUTION OF INDIA (ARTICLE-265) IS TO LEVY AND COLLECT DUE TAXES. IN CIT VS SHELLY PRODUCTS [2003] 261 ITR 3 67 (SC), THE HONBLE APEX COURT, WHILE CONSIDERING THE CASE OF A VALID RETURN HELD THAT, EVEN IF, TAX IS PAID/FOUND TO BE LESS THAN PAYABLE, NO FURTHER DEMAND CAN BE RAISED FOR RECOVE RY OF THE BALANCE AMOUNT, SINCE THE FRESH ASSESSMENT WAS BARR ED BY TIME. THE HONBLE COURT FURTHER HELD THAT, IF THERE IS NO AUTHORITY WITH THE ASSESSING OFFICER TO PROCEED ON THE INVALID RETURN, THEN WHAT REMAINS THE ORIGINAL RETURN AND T HE EXCESS TAXES PAID BY THE ASSESSEE HAS TO BE REFUNDED TO TH E ASSESSEE OTHERWISE IT WOULD OFFEND ARTICLE-265 OF THE CONSTI TUTION. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE CLAIM OF THE ITA NO.5506/MUM/2015 M/S TESLA TECHNOLOGIES & OXIDATION PVT. LTD. 4 ASSESSEE AFRESH IN ACCORDANCE WITH LAW, SO THAT NO GRIEVANCE IS CAUSED TO EITHER SIDE. THE ASSESSEE IS DIRECTED TO EXPLAIN THE TRUE FACTS BEFORE THE ASSESSING OFFICER WITH LI BERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM, FOR WHICH DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSES SEE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF LD. REPRESENTATIVE OF BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 05/01/2016. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 05/01/2016 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI