SHARDA INTERNAITONAL HOTEL P. LTD, MUMBAI V. ITO 10(1)(4), MUMBAI

ITA 5716/MUM/2010

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8056 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2014
• Appeal Filed By: Assessee
• Bench Allotted: H
• Next Hearing Date: 01-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 14-07-2010
• Court: TRIBUNAL
• Department Lawyers: LIMITATION; VO
• Keywords: Business income; Depreciation; Period of limitation; Unabsorbed depreciation
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI JH FOT; IKY JKO] U;KF;D LNL; JH FOT; IKY JKO] U;KF;D LNL; JH FOT; IKY JKO] U;KF;D LNL; JH FOT; IKY JKO] U;KF;D LNL; ,OA ,OA ,OA ,OA JH MH D:.KKDJ JKO] YS[KK LNL; JH MH D:.KKDJ JKO] YS[KK LNL; JH MH D:.KKDJ JKO] YS[KK LNL; JH MH D:.KKDJ JKO] YS[KK LNL; DS LE{K DS LE{K DS LE{K DS LE{K BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.5716/MUM/2010 ASSESSMENT YEAR: - 2007-08 SHARDA INTERNATIONAL HOTEL PVT. LTD. 12, SIDHPURA INDL. ESTATE, MASRANI LANE, HALAV POOL, KURLA (W) MUMBAI- 400 072. V S. ` ITO 10(1)(4), MUMBAI. PAN: AABCS1457M APPELLANT RESPONDENT ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER DATED 25.5.2010 OF CIT(A) FOR THE A.Y. 2007-08. 2. IN THE ORIGINAL GROUNDS FILED ALONG WITH FORM 36, THE ASSESSEE HAS RAISED THE ONLY ISSUE REGARDING THE VALIDITY OF NOTICE U/S 143(2) BEING BARRED BY LIMITATION AND CONSEQUENTLY, THE ASSESSMENT IS NULL AND VOID. THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUNDS VIDE LETTER DATED 8.11.2011 AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SES IN LAW, THE LEARNED C.I.T. (A) ERRED IN DISMISSING THE APPEAL. ASSESSEE BY SHRI. M. SUBRAMANIAM REVENUE BY SHRI N. PADMANABHAN DATE OF HEARING 16-10-2014 DATE OF PRONOUNCEMENT 16.10.2014 SHARDA INTERNATIONAL HOTEL PVT. LTD. 2 | P A G E 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE ASSESSMENT ORDER DATED 30-11-09 PASSED U/S. 144 OF THE I.T. ACT IS 'INVALID AND BAD IN LAW'. 3. WITHOUT PREJUDICE TO GROUND NO. 1 & 2, AND ON TH E FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED A. O. ERRED IN DETERMINING THE BUSINESS INCOME AT RS. 65,44,039 /- AS AGAINST THE RETURNED BUSINESS INCOME OF RS. 3,04,271 /-. 4. WITHOUT PREJUDICE TO GROUND NO. 1 AND 2, AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A .O. ERRED IN ESTIMATING AND ADDING AN AMOUNT OF RS. 63, 96,625/- AS 'ROOM R ENTS'. 5. WITHOUT PREJUDICE TO GROUND NO. 1 AND 2, AND ON' THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A .O. ERRED IN ESTIMATING AND ADDING AN AMOUNT OF RS. 9,20,000/- AS 'CONFEREN CE HALL RENT'. 6. WITHOUT PREJUDICE TO GROUND NO. 1 AND 2, AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A .O. ERRED IN ESTIMATING AND ADDING AN AMOUNT OF RS. 5,47,500/- AS 'RESTAURA NTS INCOME'. 7. WITHOUT PREJUDICE TO GROUND NO. 1 AND 2, AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A .O. ERRED IN ESTIMATING AND ADDING AN AMOUNT OF RS. 2, 00,000/- AS 'OUT OF EXPENSES DISALLOWED'. 8. WITHOUT PREJUDICE TO GROUND NO. 1 AND 2, AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A .O. ERRED IN ESTIMATING AND ADDING AN AMOUNT OF RS. 1,00,000/- AS 'OTHER SE RVICES RECEIPT'. 9. WITHOUT PREJUDICE TO GROUND NO. 1 AND 2, AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A .O. ERRED IN ESTIMATING AND ADDING AN AMOUNT OF RS. 30,00,000/- AS 'FROM BA R'. 10. WITHOUT PREJUDICE TO -GROUND NO. 1 AND 2, AND O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A .O. ERRED IN HOLDING THAT 'NO BUSINESS LOSS OR UNABSORBED DEPRECIATION IS ALL OWED TO BE CARRIED FORWARD TO A.Y. 2008-09'. SHARDA INTERNATIONAL HOTEL PVT. LTD. 3 | P A G E 3. AT THE TIME OF HEARING THE LD. AUTHORIZED REPRESE NTATIVE OF THE ASSESSEE HAS STATED THAT THE ASSESSEE DOES NOT PRESS THE ORIG INAL GROUNDS REGARDING VALIDITY OF NOTICE U/S 143(2) AND THE SAME MAY BE DIS MISSED AS NOT PRESSED. 4. THE LD. DR RAISED NO OBJECTION IF THE ORIGINAL GRO UND OF THE ASSESSEES APPEAL IS DISMISSED AS NOT PRESSED. 5. ACCORDINGLY, THE ORIGINAL GROUND REGARDING VALIDITY OF NOTICE U/S 143(2) OF THE INCOME TAX ACT IS DISMISSED BEING NOT PRESSED. 6. THE ASSESSMENT IN THIS CASE WAS FRAMED U/S 144 ON 30.11.2009 AS THE ASSESSEE DID NOT APPEAR BEFORE THE ASSESSING OFFICER . THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE CIT(A) AND RAISED THE ONLY GROUND OF VALIDITY OF NOTICE U/S 143(2) BEING BARRED BY LIMITATION. THE CI T(A) REJECTED THE OBJECTION RAISED BY THE ASSESSEE ON THAT ISSUE WITHOUT GOING I NTO THE MERITS OF THE ASSESSMENT ORDER. 7. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE OF T HE ASSESSEE HAS SUBMITTED THAT BEFORE THE CIT(A) THE ASSESSEE STATED THAT THOU GH THE ASSESSEE RESERVES THE RIGHT TO CONTESTS THE OTHER POINTS AND ISSUES INVOLV ED IN THE ASSESSMENT ORDER IF REQUIRED, HOWEVER, THE ASSESSEE WAS GIVEN THE UNDERS TANDING THAT THE ASSESSMENT ORDER WAS NOT VALID DUE TO NOTICE U/S 143(2) WAS ISS UED BEYOND THE PERIOD OF LIMITATION. IN SUPPORT OF HIS CONTENTION, THE LD. AU THORIZED REPRESENTATIVE HAS REFERRED THE AFFIDAVIT FILED BY THE CA OF THE ASSESS EE AND SUBMITTED THAT ON THE ADVICE OF THE CA, THE ASSESSEE COULD NOT RAISE THE G ROUNDS BEFORE THE CIT(A), THEREFORE, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE MAY BE ADMITTED. SHARDA INTERNATIONAL HOTEL PVT. LTD. 4 | P A G E 8. ON THE OTHER HAND, THE LD. DR HAS OBJECTED THE PLE A OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL GROUND AND SUBMITTED THAT THE ASSESSEES EXPLANATION IS NOT SUFFICIENT. 9. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD, WE ARE OF THE VIEW THAT WHEN THE ASSESSMENT WAS FRAMED U/S 144 AND BEFORE THE CIT(A) THE ASSESSEE CHALLENGED THE ASSESS MENT ORDER ON VALIDITY OF THE NOTICE U/S 143(2), THEREFORE, IN THE INTEREST OF JU STICE, THE ASSESSEE BE GIVEN ONE OPPORTUNITY TO REPRESENT ITS CASE ON MERITS. ACCOR DINGLY, WE ADMIT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE AND REMIT THE SAME TO THE RECORD OF THE ASSESSING OFFICER FOR DECIDING THE ADDITIONAL GROUNDS AFTER GIVI NG AN OPPORTUNITY OF HEARING TO THE ASSESSEE. 10. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT TODAY I.E 16 -1 0-2014 SD/- SD/- (D. KARUNAKARA RAO) (VIJAY PAL RAO) (ACCOUNTANT MEMBER/ YS[KK LNL; YS[KK LNL; YS[KK LNL; YS[KK LNL; ) (JUDICIAL MEMBER/ U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; ) MUMBAI DATED 16-10 -2014 SKS SR. P.S, COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI