DCIT CC-4(3),CENTRAL RANGE-4, MUMBAI V. O.P. ENTERPRISES, MUMBAI

ITA 5767/MUM/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 3798 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 11-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AWUNGSHI GIMSON
• Assessee Lawyers: PRADEEP SHARMA
• Keywords: Depreciation; Opportunity of being heard; Additional evidence; Set aside
• Section: 143(3); 142(1); 14A; 68; 6; 263; 63; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI BEFORE S. R IFAUR RAHMAN , ACCOUNTANT MEMBER & SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO. 5767 /MUM/201 7 ( ASSESSMENT YEAR : 20 1 1 - 12 ) DCIT,CC - 4(3), CENTRAL RANGE - 4 ROOM NO.1921 AIR INDIA BUILDING NARIMAN POINT MUMBAI - 400 021 VS. M/S. O.P. ENTERPRISES 4 TH & 5 TH FLOOR SAI COMMERCIAL BUILDING BKS DEVSHI MARG MUMBAI - 400 088 PAN/GIR NO. A A AFO1650Q ( APPELLANT ) .. ( RESPONDENT ) REVENUE BY AWUNGSHI GIMSON ASSESSEE BY PRADEEP SHARMA DATE OF HEARING 12/09 /2019 DATE OF PRONOUNCEME NT 31 /10/2019 / O R D E R PER S. R IFAUR RAHMAN (A.M) : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST , THE ORDER O F THE COMMISSIONER OF INCOME TAX ( APPEALS ) 52 , MUMBAI , DATED 07/06/2017 AND IT PERTAINS TO ASSESSMENT YEAR 20 1 1 - 12 . 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED ITS RETURN OF INCOME ON 30/09/2011, DECLARING TOTAL INCOME AT RS. 5,15,05,225/ - THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT ORDER WAS PASSED U/S 143(3) OF THE I.T.ACT,1961 (IN SHORT ACT) ON 28/01/2014, ASSESSING THE TOTAL INCOME AT RS. 5,15,09,480/ - AFTER MAKING DISALLOWANCE ON ACCOUNT OF DEPRECIATION ON M OTOR CAR. THEREAFTER, THE CA SE WAS REVIEWED U/S 2 6 3 OF THE ACT BY THE CIT ( CENTRAL ) - 2, MUMBAI BY WAY OF PASSING AN ORDER , DATED 16/02/2014 , WHEREIN THE ITA NO. 5767 /MUM/201 7 O.P.ENTERPRISES 2 ASSESSMENT COMPLETED U/S 143(3) AS HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE WITH REGARD TO THE ISSUE OF APPLICABILITY OF SECTION 36( 1 )(III), DISALLOWANCE U/S 14A AND UNSECURED LOANS TAKEN BY THE ASSESSEE. THE LD.CIT REMIT TED THE ISSUE TO THE FILE OF AO TO LOOK INTO THE ABOVE SAID ASPECTS BY GIVING A PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND CO MPLETE THE ASSES SMENT ACCORDINGLY. 3. THE AO ISSUED NOTICE S U/S 142(1) AND SERVED ON THE ASSESSEE AFTER GIVING OPPORTUNITY TO THE ASSESSE AND BY CONSIDERING THE SUBMISSIONS OF THE ASSESSEE , THE AO CONFIRMED THE ADDITIONS AS PER THE DIRECTIONS OF CIT(CEN TRAL - 2) , MUMBAI. 4. AGGRIEVED WITH THE ABOVE ORDER , THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A) - 52, MUMBAI AND AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE , LD.CIT(A) DELETED THE ADDITIONS MADE BY THE AO WITH REGARD TO SECTION 36( 1 )(III) AN D ADDITIONS OF UNSECURED LOANS. AGGRIEVED WITH THE ABOVE ORDER , REVENUE IS IN APPEAL BEFORE US , R AISING THE FOLLOWING GROUNDS OF APPEAL: - 1. 'ON THE FACTS &. IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE ID CIT(A) ERRED IN DELETING THE ADDITION OF RS.2, 50,22,732/ - MODE BY AO ON ACCOUNT OF DISALLOWANCE OF INTEREST EXPENDITURE, WITHOUT APPRECIATING THE THAT THE ASSESSEE FAILED TO FURNISH THE REQUISITE DETAILS CALLED FOR BY THE AO TO PROVE THAT THE LOANS AVAILED WERE USED FOR THAT BUSINESS RELATED TO WINDM ILL.' 2. 'ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.10,92 , 88 , 000/ - MADE BY AO U/S 68 OF THE IT ACT, 1961, WITHOUT APPRECIATING THE THAT THE ASSESSES COULD NOT FURNISH ANY MATERIAL FAC TS OR INFORMATION REGARDING THE SAID UNSECURED LOAN DURING THE ASSESSMENT PROCEEDINGS' 3. 'ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD CIT(A) HAS ERRED IN ACCEPTING ADDITIONAL EVIDENCES/SUBMISSION WITHOUT GIVING OPPORTUNITY TO THE AO IN CONTRAVENTION OF THE RULE 46A OF THE IT RULES.' 4. THE APPELLANT CRAVES TO LEAVE, TO ADD, TO AMEND AND / OR TO ALTER ANY OF THE GROUND OF APPEAL, IF NEED BE. ITA NO. 5767 /MUM/201 7 O.P.ENTERPRISES 3 5. THE APPELLANT, THEREFORE, PRAYS THAT ON THE GROUNDS STATED ABOVE, THE ORDER OF THE CIT( A) - 52, MUMBAI, MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 5 . IN THE ABOVE GROUND RAISED BY THE REVENUE , MAINLY AGGRIEVED WITH THE FACTS THAT LD.CIT(A) ERRED IN DELETED THE ADDITIONS WITHOUT APPRECIATING THAT ASSESSEE FAILED TO FURNISH TH E REQUISITE DETAILS CALLED FOR BY THE AO . A T THE TIME OF HEARING , THE LD. AR BROUGHT TO OUR NOTICE, THE INFORMATION S W ERE A LREADY SUBMITTED BEFORE THE AO , NOT ONLY AT THE TIME OF REASSESSMENT , ALSO AT THE TIME OF ORIGINAL ASSESSMENT , THE SAME INFORMAT ION WAS CONSIDERED BY THE LD. AO IN THE ORIGINAL ASSESSMENT AND ALSO , THE SAME INFORMATION WAS APPRECIATED BY THE LD.CIT(A) IN HIS ORDER . T HIS FACT WAS BROUGHT TO THE NOTICE OF LD. DR AND LD. DR HAS NOT CONTROVERTE D ANYTHING ON THIS ASPECT. THEREFORE, IN O UR CONSIDER VIEW , ALL THE INFORMATION S, WHICH WAS SUBMITTED BEFORE US , THE LD.CIT(A) CONSIDERED IN HIS ORDER TO ADJUDICATE THE MATTER WITH THIS INFORMATION, WHICH WAS ALSO AVAILABLE WITH THE AO , AT THE TIME OF RE - ASSESSMENT OR AT THE TIME OF ORIGINAL AS SESSMENT . T HEREFORE , THIS IS NOT NEW INFORMATION , WHICH WAS SUBMITTED BEFORE THE LD.CIT(A). THEREFORE, WE ARE INCLINED TO DISMISS THE GROUND RAISED BY REVENUE , CONSIDERING THE ABOVE FACTS ON RECORD. THEREFORE, GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 6 . IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 /10/2019 SD/ - ( RAM LAL NEGI ) SD/ - ( R IFAUR RAHMAN) JUDI CIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 31 / 10 / 2019 ITA NO. 5767 /MUM/201 7 O.P.ENTERPRISES 4 THIRUMALESH SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//