ITO 18(2)(2), MUMBAI V. MANOJ L. SHETH (HUF), MUMBAI

ITA 5593/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71398 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 01-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DIVYA BAJPAI
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI , BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM ! I.T.A. NO. 5593/MUM/2011 ( / ASSESSMENT YEAR: 2008-09) INCOME-TAX OFFICER-18(2)(2), ROOM NO.111, 1 ST FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI-400 012 ! VS. MANOJ L. SHETH (HUF) 225, JAY GOPAL INDL. ESTATE, BHAVANI SHANKAR X ROAD, DADAR (WEST), MUMBAI-28 '! # ./PAN/GIR NO. AAFHS 7847 J ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) %&! CO NO. 102/MUM/2012 ( / ASSESSMENT YEAR: 2008-09) MANOJ L. SHETH (HUF) 225, JAY GOPAL INDL. ESTATE, BHAVANI SHANKAR X ROAD, DADAR (WEST), MUMBAI-28 ! VS. INCOME-TAX OFFICER-18(2)(2), ROOM NO.111, 1 ST FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI-400 012 '! # ./PAN/GIR NO. AAFHS 7847 J ( %& /CROSS OBJECTOR ) : ( %&'$ / RESPONDENT ) '() / REVENUE BY : SHRI DIVYA BAJPAI *+,-.() / ASSESSEE BY : SHRI PRASHANT SHAH / '0(.1 / DATE OF HEARING : 15.10.2013 234(.1 / DATE OF PRONOUNCEMENT : 15.10.2013 2 ITA NO. 5593/M/11 & CO NO. 102/M/12 MANOJ L. SHETH (HUF)(A.Y. 2008-09) 5! O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE REVENUE AND THE CROSS OBJE CTION BY THE ASSESSEE ARISING OUT OF THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-29, MUMBAI (CIT(A) FOR SHORT) DATED 27.05.2011, PARTLY ALLOWING THE AS SESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) DATED 30.12.2010 FOR THE ASSESSMENT YEAR (A.Y.) 2008-09. 2. THE REVENUES PRINCIPAL OBJECTION, AS PROJECTED PER THE FIRST TWO GROUNDS OF ITS APPEAL, IS THE CONTRAVENTION OF THE PRINCIPLE OF NA TURAL JUSTICE AS EMBEDDED IN RULE 46A OF THE INCOME TAX RULES, 1962 (THE RULES HEREINAFTER ) BY THE LD. CIT(A); THE FIRST APPELLATE AUTHORITY ADMITTING ADDITIONAL EVIDENCES WITHOUT RE CORDING HIS REASONS TOWARD NON- FURNISHING OF THE SAME BEFORE THE ASSESSING AUTHORI TY AND, SECONDLY, WITHOUT ALLOWING HIM AN OPPORTUNITY TO EXAMINE AND MEET THE SAME. THE RE VENUES THIRD GROUND DISPUTES THE DELETION OF THE DISALLOWANCES, I.E., ON MERITS, WHI LE THE ASSESSEES CO AGITATES THE PART SUSTENANCE THEREOF. AGGRIEVED, BOTH THE PARTIES ARE IN APPEAL. 3. BEFORE US, IT WAS A COMMON CONTENTION OF THE PAR TIES THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER (A.O.) FOR ADJUDICATION AFRESH INASMUCH AS ADMITTEDLY THERE HAD BEEN NO PROPER EXAMINATION OF THE DETAILS AT HIS END. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 4.1 AS APPARENT FROM A MERE READING OF THE ASSESSME NT ORDER, THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS DESPITE SEVERAL NOTICES (AND TOWARD WHICH THE A.O. WAS, IN FACT, CONSTRAINED TO ISSUE PENALTY PROCEEDINGS U/S. 271(1 )(B) OF THE ACT), PARTICIPATING IN THE ASSESSMENT PROCEEDINGS ONLY AT THE FAG-END OF THE T IME PERIOD AVAILABLE FOR THE COMPLETION OF THE ASSESSMENT, I.E., 31.12.2010. ACC ORDINGLY, PROPER VERIFICATION OF THE SAME COULD NOT BE MADE, WHICH WAS ALSO HINDERED BY LACK OF FULL AND COMPLETE DETAILS. AT THE FIRST APPELLATE STAGE, THE LD. CIT(A) OBSERVED SOME FACTUAL INCONSISTENCY/S IN THE 3 ITA NO. 5593/M/11 & CO NO. 102/M/12 MANOJ L. SHETH (HUF)(A.Y. 2008-09) OBSERVATIONS BY THE A.O. AS RECORDED IN THE ASSESSM ENT ORDER. HE, ACCORDINGLY, CONSIDERED THE ISSUE ON MERITS, ALLOWING THE ASSESS EE OPPORTUNITY TO STATE ITS CASE. 4.2 ADMITTEDLY, THEREFORE, THERE HAS BEEN NO PROPER EXAMINATION AT THE END OF THE A.O., WHO HAS ALSO NOT BEEN HEARD AND, THUS ALLOWED TO STATE THE REVENUES CASE IN THE MATTER BY THE FIRST APPELLATE AUTHORITY. THE SAME I N OUR OPINION WAS INCUMBENT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. WE, THEREFORE, ONLY CONSIDER IT FIT AND PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION ON THE DISALLOWANCES AGITATED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY, BY CONSIDERING ALL THE MATERIALS AS BROUGHT ON RECORD. TOWARD THIS, WE REL Y, INTER ALIA , ON THE DECISION IN THE CASE OF TIN BOX COMPANY VS. CIT [2001] 249 ITR 216 (SC). THE FOREGOING WOULD ALSO DISPOSE OF THE ASSESSEES CROSS OBJECTION, CHALLENG ING THE PART SUSTENANCE OF THE IMPUGNED DISALLOWANCES. THE A.O. SHALL IN SO DECIDING RENDER INDEPENDENT FINDINGS, UNINFLUENCED BY THE RESULT/S OF THE ASSESSEES APPEAL BEFORE THE LD. CIT(A), WHOSE ORDER THUS STANDS SET ASIDE. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, BOTH THE REVENUES APPEAL AND THE ASSESSEES CO ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON OCTOBER 15, 2 013 SD/- SD/- (D. MANMOHAN) (SANJAY ARORA) / VICE PRESIDENT / ACCOUNTANT MEMBER / 0 MUMBAI; 6 DATED : 15.10.2013 '*! ROSHANI , SR. PS 4 ITA NO. 5593/M/11 & CO NO. 102/M/12 MANOJ L. SHETH (HUF)(A.Y. 2008-09) ! ' #$%& ' &$ ! COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. / 7. 8 9 / THE CIT(A) 4. / 7. / CIT CONCERNED 5. :';<%*.*=+ 1=+4 / 0 / DR, ITAT, MUMBAI 6. <,>0 ! GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , / 0 / ITAT, MUMBAI