ADDL CIT RG 18(3), MUMBAI V. SANJAY NALIN DALAL, MUMBAI

ITA 5881/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49082 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 31-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 05-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Assessee Lawyers: SUNIL V SHAH
• Keywords: Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI P.M. JAGTAP, AM AND SHRI V. DURGA RAO , JM I.T.A.NO.5881/MUM/2009 ASSESSMENT YEAR 2006-07 THE A DDL. COMMISSIONER OF INCOME - TAX, RANGE 18(3), MUMBAI VS. SHRI SANJAY NALIN DALAL, PROP. SANJAY & CO., 353-A-1, SHAH & NAHAR INDL. ESTATE, DHANRAJ MILLS COMPOUND, LOWER PAREL (W), MUMBAI 400 013. PAN: AACPD 0245 Q (APP ELLANT ) (RESPONDENT) APPELLANT BY : SMT. C.G.K. NAIR RESPONDENT BY : SHRI SUNIL V. SHAH O R D E R PER P.M. JAGTAP, AM: THIS APPEAL IS PREFERRED BY THE RE VENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XXVIII , MUMBAI, DATED 26.08.2009 AND THE GROUNDS RAISED BY THE REVENUE THEREIN READ AS UNDER: 1. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN RESTRICTING THE ADDITION ON ACCOUNT OF TEL EPHONE EXPENSES TO RS. 45,000/- INSTEAD OF RS. 66,988/- WITHOUT APPREC IATING THE FACT THAT EXPENSES WERE NOT EXCLUSIVELY INCURRED FOR THE PURP OSE OF BUSINESS. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW THE LEARNED CIT(A) HAS ERRED IN DELETING AN ADDITION OF RS. 1,1 7,075/- ON ACCOUNT OF RESEARCH AND DEVELOPMENT EXPENSES WITHOUT APPREC IATING THE FACT THAT THE ASSESSEE HAS NOT PRODUCED AUTHENTIC PROOF IN SUPPORT OF THESE EXPENSES. (III) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING AN ADDITION OF RS. 10, 34,664/- ON ACCOUNT OF INCOME U/S.64(1A) WITHOUT APPRECIATING THE FACT THAT NO EXPLANATION HAS BEEN OFFERED IN RESPECT OF THIS INC OME. FURTHER THE CIT(A) HAS ERRED IN NOT HAVING REMANDED BACK THE IS SUE OR VERIFICATION. (IV) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING AN ADDITION OF RS. 2,4 6,576/- ON ACCOUNT OF AMOUNT RECEIVED/RECEIVABLE WHICH HAS NOT BEEN CR EDITED TO THE PROFIT AND LOSS ACCOUNT OF THE ASSESSEE WITHOUT APP RECIATING THE FACT THAT THE ASSESSEE IS NOT MAINTAINING ITS BOOKS OF A CCOUNT ACCORDING TO THE METHOD OF ACCOUNTING PRINCIPLE. ITA NO.5881/M/2009 SHRI SANJAY NALIN DALAL 2 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT AL L THE ADDITIONS/DISALLOWANCES WHICH ARE IN DISPUTE IN THE PRESENT APPEAL WERE MAD E BY THE ASSESSING OFFICER IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) FOR W ANT OF RELEVANT DETAILS AND DOCUMENTS WHICH THE ASSESSEE COULD NOT FURNISH DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS. BEFORE THE LEARNED CIT(A), THE ASSESSE E, HOWEVER, FURNISHED THE SAID DETAILS AND DOCUMENTS AND RELYING ON THE SAME, THE LEARNED CIT(A) ALLOWED SUBSTANTIAL RELIEF TO THE ASSESSEE WHICH CHALLENGED BY THE REVENUE IN THE PRESENT APPEAL. THE MAIN CONTENTION WHICH THE LEARNED DEPAR TMENTAL REPRESENTATIVE HAS RAISED BEFORE US IS THAT NO OPPORTUNITY WAS AFFORD ED BY THE LEARNED CIT(A) TO THE ASSESSING OFFICER TO VERIFY THE DETAILS AND DOCUMEN TS FURNISHED BY THE ASSESSEE FOR THE FIRST TIME BEFORE HIM BEFORE GIVING RELIEF TO T HE ASSESSEE BY RELYING ON THE SAME AND THIS POSITION CLEARLY EVIDENT FROM THE IMP UGNED ORDER OF THE LEARNED CIT(A) HAS NOT BEEN DISPUTED EVEN BY THE LEARNED CO UNSEL FOR THE ASSESSEE. WE, THEREFORE, FIND IT FAIR AND PROPER AND IN THE INTER EST OF JUSTICE TO SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) ON THE ISSUES INVOLVED IN THE PRESENT APPEAL AND RESTORE THE SAID ISSUES TO THE FILE OF THE ASS ESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER VERIFYING THE DETAILS AND DOCUME NTS FURNISHED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) TO SUPPORT AND SUBSTANTIA TE HIS CASE ON THE SAID ISSUES. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THI S 3 RD DAY OF JUNE, 2011. SD. SD. (V. DURGA RAO) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED THE 3 RD JUNE, 2011. KN ITA NO.5881/M/2009 SHRI SANJAY NALIN DALAL 3 COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-18, MUMBAI 4. THE CIT(A)-XXVIII, MUMBAI 5. THE DR E BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI