NITIN R. SHENOY, THANE V. ACIT CIR 3, THANE

ITA 5844/MUM/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2888 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 29-12-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D G
• Assessee Lawyers: C V DHARKAR LD
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

ITA.NO.5844/MUM/2015 NITIN R. SHENOY ASSESSMENT YEAR 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.5844/MUM/2015 ( / ASSESSMENT YEAR: 2009-10) NITIN R. SHENOY 602, JALTARANG, LOK PURAM OFF. POKHARAN ROAD NO.2 THANE(W) 400 604 / VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3 THANE ./ ./PAN/GIR NO. ANOPS-9792-E ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ASSESSEE BY : C.V.DHARKAR, LD. AR REVENUE BY : D.G.PANSARI, LD. DR / DATE OF HEARING : 17/10/2018 / DATE OF PRONOUNCEMENT : 02/11/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2009-10 CONTEST THE ORDER OF THE LD. COMMISSIONER OF INCOME -TAX (APPEALS)-2 [CIT(A)], THANE, APPEAL NO.062/11-12 DATED 30/10/2015 QUA CONFIRMATION OF CERTAIN ADDITIONS. THE ASSESSMENT F OR IMPUGNED AY WAS FRAMED BY LD. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3, THANE [AO] U/S 143(3) ON 28/12/2011 WHEREIN THE INCOME OF THE ASSESSEE WAS ITA.NO.5844/MUM/2015 NITIN R. SHENOY ASSESSMENT YEAR 2009-10 2 ASSESSED AT RS.84.35 LACS AFTER CERTAIN ADDITIONS A S AGAINST RETURNED INCOME OF RS.63.57 LACS FILED BY THE ASSESSEE ON 19/09/2009. 2. UPON PERUSAL OF GROUNDS OF APPEAL, WE FIND THAT FOLLOWING ADDITIONS ARE THE SUBJECT MATTER OF PRESENT APPEAL:- NO. NATURE OF ADDITIONS AMOUNT (RS.) 1. UNCONFIRMED SUNDRY CREDITORS 12,90,445/- 2. MISMATCH IN FIGURES 19,205/- 3. UNPROVEN EXPENSES 4,60,925/- THE ADDITION ON ACCOUNT OF SUNDRY CREDITORS HAS BEEN MADE SINCE THE ASSESSEE COULD NOT FILE THE CONFIRMATIONS THEREOF. THE AMOUNT OF RS.19,205/- REPRESENT MISMATCH IN CONFIRMATION FIGU RES OF A SUPPLIER NAMELY OSRAM WHEREAS THE ADDITION OF UNPROVEN EXPENSES IS ADHOC DISALLOWANCE OF 15% AGAINST CERTAIN EXPENSES AS CLAIMED BY THE ASSESSEE . THE SAME, UPON CONFIRMATION BY LD. CIT(A), ARE UNDE R APPEAL BEFORE US. 3. THE LD. AUHTORIZED REPRESENTATIVE FOR ASSESSEE [ AR], SHRI C.V.DHARKAR ON THE STRENGTHS OF THE DOCUMENTS AS PLACED IN THE PAPAR- BOOK AGITATED THE ADDITIONS CONFIRMED BY FIRST APPELLATE AUTHORITY WHICH HAS BEEN CONTROVERTED BY LD. DEPARTMENTAL REPRESENT ATIVE [DR], SHRI D.G.PANSARI. 4.1 SO FAR AS THE ADDITIONS OF RS.12.90 LACS ON ACCOUNT OF UNCONFIRMED SUNDRY CREDITORS IS CONCERNED, THE PERUSAL OF DOCUMENTS PLACED IN THE PAPER BOOK, PRIMA-FACIE, REVEAL THAT MOST OF THESE SUNDRY CREDITORS HAS BEEN SETTLED BY THE ASSESSEE IN SUBSEQUENT YEAR S EITHER BY WAY OF PAYMENT FROM BANK OR BY WAY OF ISSUANCE O F CREDIT / DEBIT NOTES WHICH DEMONSTRATE THAT THE LIABILITIES IN THA T RESPECT HAD NOT ITA.NO.5844/MUM/2015 NITIN R. SHENOY ASSESSMENT YEAR 2009-10 3 CEASED TO EXIST WITHIN THE MEANING OF SECTION 41(1) AND THE ADDITIONS THEREOF WERE NOT JUSTIFIED. IN THE LIGHT OF AFORESA ID FACT, THE MATTER STANDS RESTORED TO LD. AO FOR APPRECIATION OF THESE DOCUME NTARY EVIDENCES AND RE-ADJUDICATE THE SAME AS PER LAW AFTER PROVIDING A DEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE FAILING WHICH LD. AO SHALL BE AT LIBERTY TO ADJUDICATE THE SAME ON THE BASIS OF MATERIAL AVAILA BLE ON RECORD. THIS GROUND STAND ALLOWED FOR STATISTICAL PURPOSES. 4.2 SIMILARLY, IT APPEARS THAT THE MISMATCH IN FIGU RES OF OSRAM ARISES OUT OF THE FACT THAT SOME CREDIT NOTES / DEBIT NOTE S HAVE NOT BEEN CONSIDERED BY THE PARTIES. THE RECONCILIATION OF TH E SAME HAS BEEN PLACED IN THE PAPER-BOOK. THEREFORE, THIS ISSUE ALSO STANDS REMITTED BACK TO THE FILE OF LD. AO WITH A DIRECTION TO THE ASSES SEE TO RECONCILE THE SAME AND SUBSTANTIATE THE LIABILITY. THIS GROUND AL SO STANDS ALLOWED FOR STATISTICAL PURPOSES. 4.3 THIS LAST ADDITION IS NOTHING BUT ADHOC DISALLOWANCE OF 15% AGAINST CERTAIN EXPENSES AGGREGATING TO RS.30,72,823/- SINC E THE ASSESSEE COULD NOT FILE SUFFICIENT DOCUMENTARY EVIDENCES TO SUBSTANTIATE THE SAME. THE DETAILS OF THESE ITEMS HAVE ALREADY BEEN GIVEN AT PARA 5 OF THE QUANTUM ASSESSMENT ORDER. ONE OF THE ITEM IS SALES PROMOTION EXPENSES OF RS.10,62,090/-. THE PERUSAL OF COMPUTATION OF IN COME REVEAL THAT THE ASSESSEE HAS ALREADY OFFERED SUO-MOTO DISALLOWANCE OF 10% AGAINST THE SAME AND THEREFORE, FURTHER ADDITIO N AGAINST THE SAME WAS NOT JUSTIFIED AND HENCE, THE IMPUGNED ADDITION AGAINST THE SAME STANDS DELETED. REGARDING BALANCE EXPENSES OF RS.20 ,10,733/-, WE RESTRICT THE IMPUGNED ADDITIONS TO 10% WHICH COMES TO RS.2,01,073/-. THIS GROUND STAND PARTLY ALLOWED. ITA.NO.5844/MUM/2015 NITIN R. SHENOY ASSESSMENT YEAR 2009-10 4 5. RESULTANTLY, THE APPEAL STANDS PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND NOVEMBER, 2018. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 02/11/2018 SR.PS:-THIRUMALESH/JV, SR.PS ! / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. +,#&- , - , / DR, ITAT, MUMBAI 6. ,./0 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI