ITO 14(1)(3), MUMBAI V. K.R. DEVELOPERS, MUMBAI

ITA 5526/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7814 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-02-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 02-09-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Assessee Lawyers: DHIRAN K RATHORE
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI. BEFORE SHRI R.K. GUPTA, J.M. AND SHRI J. SUDHAKAR REDDY, A.M. I.T.A. NO. 5 526/MUM/2008 ASSESSMENT YEAR : 2004-05 THE INCOME-TAX OFFICER, K.R. DEVELOPERS, 14(1)(3), MUMBAI. VS. 605 KARIM MANZIL, 2 ND FLOOR, J.S.S. ROAD, CHIRA BAZAR, MUMBAI 400 002. PAN : AAEFK9733A APPELLANT. RESPONDENT. I.T.A. NO. 5 461/MUM/2008 ASSESSMENT YEAR : 2004-05. K.R. DEVELOPERS, VS. T HE INCOME-TAX OFFICER, MUMBAI. 14(1), MUMBAI. APPELLANT RESPONDENT DEPARTMENT BY : SHRI LAL CHAND. ASSESSEE BY : SHRI DHIRAN K. RATHORE. O R D E R PER J. SUDHAKAR REDDY, A.M. THESE ARE CROSS APPEALS AND ARE DIRECTED AGAINST THE ORDER OF THE CIT(APPEALS)-XIV, MUMBAI DATED 30-06-2008. 2. THE ASSESSEE IN THIS CASE IS A BUILDER AND DEVE LOPER. THE ADDITIONS MADE IN THE ASSESSMENT ORDER PERTAIN TO C ERTAIN CREDITS. THE FIRST APPELLATE AUTHORITY DELETED CERTAIN ADDITIONS AND C ONFIRMED CERTAIN OTHERS. AGGRIEVED, BOTH THE ASSESSEE AND THE REVENUE ARE I N APPEAL. 2 3. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE PRODUCED AN ORDER OF THE A-BENCH OF THE TRIBUNAL IN THE CASE OF M/S AUM DEVELOPERS IN ITA NO. 1909/M/2009 FOR THE ASSESSMEN T YEAR 2004-05, ORDER DATED 29 TH JANUARY, 2010 WHERE IN PARA 6, IT IS HELD AS FOLLO WS: WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD. AFTER CONSIDERING THE FACTS OF THE CASE, WE FIND THAT CONFIRMATIONS ALONG WITH PAN FILED BEFORE THE REVENUE AUTHORITIES WERE NEITHER EXAMINED BY THE AO NOR BY THE CIT(A). THE CIT(A) REJECTED THE ASSESSEES CLAIM ON THE GRO UND THAT THE SIGNATURES ON THE CONFIRMATION LETTERS ARE DIFFEREN T THAN THE SIGNATURES ON THE ORIGINAL CONFIRMATIONS FILED BEFO RE THE AO. WHEN THE ASSESSEE FILED PAN OF ALL THE PARTIES, THE REVE NUE IS BOUND TO EXAMINE THE RELEVANT RECORDS AND RECORD ALL THE RE LEVANT FACTS. IN THE CASE UNDER CONSIDERATION, WE FIND THAT COMPLETE FACTS AFTER VERIFICATION ARE NOT ON RECORD. THEREFORE, WE REMIT THE MATTER BACK TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE TH E ISSUE AFRESH IN ACCORDANCE WITH LAW BY RECORDING ALL THE FACTS ON R ECORD AFTER, EXAMINING THE SAME THOROUGHLY AND AFTER PROVIDING R EASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. HE SUBMITTED THAT AS THE ISSUES ARE SIMILAR, BOTH T HE ASSESSEE AS WELL AS THE REVENUE APPEAL MAY BE SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION. THE LEARNED DR THOUGH NOT LEAVING HIS GROUND, ULTIMATELY AGREED THAT NO PREJUDICE WOULD BE CAUSED TO THE REV ENUE IF THE REVENUES APPEAL IS ALSO SET ASIDE TO THE FILE OF THE AO. 4. IN VIEW OF THE ABOVE SUBMISSIONS, IN LINE WITH THE DECISION IN THE CASE OF AUM DEVELOPERS (SUPRA), WE SET ASIDE TH E MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LA W. 3 5. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 25TH DAY OF FEBRUARY, 2010. SD/- SD/- (R.K. GUPTA) (J. SUDHAKAR REDDY) JUDICIAL MEMBER. ACCOUNTANT MEMBER. MUMBAI, DATED : 25 TH FEBRUARY, 2010. WAKODE COPY FORWARDED TO : 1. APPELLANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, A-BENCH. (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES, MUMBAI.