Appeal details
Counselvise Citation
[2012] 140 COUNSELVISE.COM (IT) 62273 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 9 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
25-04-2012
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
E
Next Hearing Date
16-01-2012
Assessment Year
2007-2008
Appeal Filed On
09-07-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI P.M.JAGTAP (A.M) & SHRI N.V.VASUDEVAN( J.M) ITA NO.5592/M/10(A.Y. 2007-08) THE ACIT 15(2), MATRU MANDIR, ROOM NO.113, TARDEO, MUMBAI - 400 008. (APPELLANT) VS. M/S. SUNSHINE PACKAGING INDUS., B 2077, OBEROI ESTTE, CHANDIVALI (W), MUMBAI - 400 072. PAN:AAYFS6211P (RESPONDENT) APPELLANT BY : SHRI M.MURALI RESPONDENT BY : DR. K.SHIVRAM DATE OF HEARING : 19/04/2012 DATE OF PRONOUNCEMENT : 25/04/2012 ORDER PER N.V.VASUDEVAN, J.M THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDE R DATED 21/4/10 OF CIT(A) 26, MUMBAI RELATING TO THE ASSESSMENT YEAR 2 007-08. GROUNDS OF APPEAL RAISED BY THE REVENUE READ AS FOLLOWS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LAW, THE LEARNED CIT(A) HAS ERRED IN LAW BY HOLDING THAT EXP ARTE ASSESSMENT MADE U/S. 144 OF THE I. T ACT, 1961 IS BAD IN LAW I GNORING THE FACT THAT AMPLE OPPORTUNITY OF BEING HEARD WAS PROVIDED TO TH E ASSESSEE, AS NOTICES WERE ISSUED AT THE ADDRESS AS GIVEN IN THE RETURN OF INCOME BY THE ASSESSEE. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LAW, THE LEARNED CJT(A) HAS ERRED IN LAW IN DELETING THE ADD ITION MADE ON THE ESTIMATED PERCENTAGE OF THE TURNOVER WITHOUT APPREC IATING THE FACT THAT A 0 PASSED BEST JUDGMENT ASSESSMENT U/S. 144 OF THE 1. T ACT, 1961. ITA NO.5592/M/10(A.Y. 2007-08) 2 2. THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN TH E BUSINESS RESELLING TIN PLATES AND ALLIED PRODUCTS. FOR A.Y 2007-08 T HE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 28,75,270/- . AN ORDER OF ASSESSMENT UNDER SECTION 144 DATED 11/12/2009 WAS PASSED BY TH E AO IN WHICH THE AO HAD ESTIMATED THE INCOME OF THE ASSESSEE AT RS. 1,0 3,15,123/- BEING 5% OF THE TOTAL SALE. AGGRIEVED BY THE ORDER OF THE AO T HE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) THAT THE ORDER OF ASSESSMENT PASS ED UNDER SECTION 144 OF THE ACT, WHICH IS AN EXPARTE BEST JUDGMENT ASSESSM ENT IS NOT VALID FOR THE REASON THAT NO NOTICE OF HEARING WAS SERVED ON THE ASSESSEE BY THE AO BEFORE COMPLETING ASSESSMENT UNDER SECTION 144 OF T HE ORDER. THE CIT(A) CALLED FOR REMAND REPORT FROM THE AO ON THE ABOVE S UBMISSIONS MADE BY THE ASSESSEE. A LETTER DATED 26/2/2010 AND 30/3/2010 WAS SENT TO THE AO BY CIT(A) CALLING FOR A REMAND REPORT. IN THE LETTER DATED 26/2/2010 THE CIT(A) ALSO CALLED FOR THE BASIS ON WHICH THE PROFIT OF T HE ASSESSEE WAS ESTIMATED AT 5% OF THE SALES BY THE AO. THE CIT(A) ALSO WANTED THE AO TO POINT OUT ANY DEFECTS IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE, PAST HISTORY OF THE ASSESSEES CASE, VERIFIABILITY OF THE BOOKS OF ACCOUNTS ETC. PURSUANT TO THE LETTER OF THE CIT(A) CALLING FOR REMAND REPORT FROM THE AO, THE AO CALLED FOR THE NECESSARY DETAILS FROM THE ASSESSEE AND THE ASSESSEE BY LETTER DATED 1/4/2010 AS WELL AS SUBMISSIONS DATED 9/4/2010 GAVE ALL DETAILS BEFORE THE AO. DESPITE THE ABOVE, THE AO DID NOT SEND ANY REM AND REPORT TO THE CIT(A). THE CIT(A), THEREFORE, FORMED AN OPINION THAT THE A O HAS NOTHING TO SAY IN THE MATTER AND THEREAFTER DELETED THE ADDITION MADE BY THE AO HOLDING THAT THE AO HAS GIVEN NO VALID REASONS FOR ESTIMATING TH E INCOME OF THE ASSESSEE AT 5% OF THE SALES AND THAT THE ADDITION WAS MADE BY THE AO PURELY ON SURMISES AND THE ADDITION WAS DELETED BY THE ACIT(A ). 3. AGGRIEVED BY THE ORDER OF THE CIT(A) THE REVENUE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. ITA NO.5592/M/10(A.Y. 2007-08) 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. AFTER THE ORDER OF THE CIT(A) THE AO ISSUED A NOTICE UNDER SECTION 148 OF THE ACT ON 26/5/10 FOR THE VERY SAME ASSESSMENT YEAR. IN RESPONSE TO THE SAME THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RECEIPT OF RS. 28 ,75,270/-, WHICH WAS THE TOTAL INCOME DECLARED IN THE ORIGINAL RETURN FILED BY THE ASSESSEE. THE SAID RETURN OF INCOME WAS ACCEPTED BY THE AO AND ORDER U /S. 143(3) R.W.S.148 OF THE ACT DATED 7/12/2011 WAS PASSED. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE WILL BE SERVED IN DECID ING THIS APPEAL AS THE AO HIMSELF HAS ACCEPTED THE INCOME RETURNED BY THE ASS ESSEE. WE, THEREFORE, DISMISS THIS APPEAL BY THE REVENUE AS INFRUCTUOUS. 5. IN THE RESULT, THE APPEAL BY THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 25 TH DAY OF APRIL 2012 SD/- SD/- (P.M.JAGTAP ) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 25 TH APRIL 2012 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RE BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM.
Mehul