ASST CIT CIR 4, THANE V. AMOL ANTONY PERIERA, THANE

ITA 6237/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3103 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A RAMCHANDRAN
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice; Revised return
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI G.S.PANNU (AM) AND SHRI. RAM LAL NEGI ( JM) ITA NO.6237/MUM/2012 ASSESSMENT YEAR: 2009-10 THE ACIT CIRCLE - 4, 2 ND FLOOR, QURESHI MANSION, GOKHALE ROAD, NAUPADA, THANE (W)- 400 602. VS. SHRI. AMOL ANTONY PERIERA. SHOP NO. 4,5,6, GROUND FLOOR, BLDG. NO. 21, AMOL NAGAR, NR. NAIGAON STATION (W), VASAI, DIST- THANE. PAN:- AMCPP5236D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. A. RAMCHANDRAN RESPONDENT BY : MS. NEHA PARANJPE DATE OF HEARING: 0 8 /0 9 /201 6 DATE OF PRONOUNCEMENT: 19/09/2016 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAINST ORDER DATED 12/06/2012 PASSED BY CIT (APPEALS)-II, THANE, FOR THE ASST. YEAR 2009-10 WHEREBY THE LD. CIT(A) PARTLY ALLOWED THE APPEAL F ILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER DATED 22/12/2011 PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE/A PPELLANT A BUILDER HAVING TWO PARTNERSHIP CONCERNS I.E., AMOL CONSTRUCTIONS A ND PEREIRA BUILDERS, FILED ITS RETURN OF INCOME FOR THE RELEVANT A.Y. 2009-10 ON 24/09/2009 DECLARING THE TOTAL INCOME OF RS. 10,36,500/-. ON 04/02/2010, DUR ING SURVEY ACTION AT THE 2 ITA NO.6237/MUM/2012 ASSESSMENT YEAR: 2009-10 HEAD OFFICE OF PEREIRA BUILDERS, DOCUMENTARY EVIDEN CE INDICATING CASH RECEIPT WAS RECOVERED. ON THE BASIS OF THE SAID DOCUMENT TH E ASSESSEES FATHER DECLARED UNACCOUNTED INCOME OF RS. 18,50,000/-. THE ASSESSEE ADMITTED THE SAME AND FILED REVISED RETURN ON 25/03/2010 DECLAR ING TOTAL INCOME OF RS. 28,86,500/-. DURING THE ASSESSMENT PROCEEDINGS IT W AS FOUND THAT THE ASSESSEE HAS NOT DEDUCTED TDS IN RESPECT OF FOLLOWI NG EXPENSES CLAIM IN P&L ACCOUNT. AMOL CONSTRUCTIONS :- 1) LABOUR CHARGES RS. 8,4 8,419/- 2) PAINTING CHARGES RS. 2,4 1,250/- TOTAL RS . 10,89,669/- PEREIRA BUILDERS :- 1) LABOUR CHARGES RS. 23, 70,135/- 2) TRANSPORT CHARGES RS. 3,33 ,590/- 3) PAINTING CHARGES RS. 77, 000/- TOTAL RS . 27,80,725/- ACCORDINGLY, THE A.O ASSESSED THE TOTAL INCOME OF T HE ASSESSEE AT RS. 67,56,894/- I.E RS. 28,86,500/- RETURNED INCOME PLU S ADDITION OF RS. 38,70,394/- (10,89,669+27,80,725) 3. AGGRIEVED, THE ASSESSEE CHALLENGED THE ASSESSME NT ORDER BEFORE THE FIRST APPELLATE AUTHORITY. THE APPEAL OF THE ASSESSEE WAS PARTLY ALLOWED. THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE IMPUGN ED ORDER PASSED BY THE LD. CIT(A) PASSED IN THE FIRST APPEAL ON THE FOLLOWING EFFECTIVE GROUNDS:- 3 ITA NO.6237/MUM/2012 ASSESSMENT YEAR: 2009-10 1. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND I N LAW THE (IT (A)-II, THANE HAS ERRED IN DELETING THE ADDITION OF RS. 38,70,394/- MADE U/S 40(A)(IA) OF THE I.T. ACT BEING FAILURE ON THE PART OF THE ASSESSEE TO DEDUCT TAX AT SOURCE AS PER THE PROVISI ONS OF SECTION 194 C OF THE IT ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW THE (IT(A)- II, THANE ERRED IN THAT THE PROVISIONS OF SECTION 4 0(A)(IA) CAN BE INVOKED ONLY TO DISALLOW EXPENDITURE OF NATURE REFE RRED TO THEREIN WHICH IS SHOWN AS PAYABLE AS ON THE DATE OF BALANCE SHEET. 3. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW THE (IT(A)- II, THANE ERRED IN NOT THE FACT THAT THE PROVISIONS OF SECTION 40(A)(IA) CAN BE INVOKED NOT ONLY TO DISALLOW EXPEN DITURE OF NATURE REFERRED TO THEREIN WHICH IS SHOWN AS PAYABLE AS ON THE DATE OF BALANCE SHEET BUT ALSO TO DISALLOW SUCH EXPENDITURE WHICH BECOME PAYABLE AT ANY TIME DURING THE RELEVANT PREV IOUS YEAR AND WAS ACTUALLY PAID WITHIN THE PREVIOUS YEAR. 4. BEFORE US, THE LD. DR RELYING ON THE FINDINGS O F THE A.O SUBMITTED THAT THE CIT(A) HAS ERRED IN HOLDING THAT THE PROVISIONS OF SECTION 40(A)(IA) CAN BE INVOKED NOT ONLY TO DISALLOW SUCH EXPENDITURE OF NA TURE REFERRED TO THEREIN WHICH IS SHOWN AS PAYABLE AS ON THE DATE OF BALANCE SHEET BUT ALSO TO DISALLOW SUCH EXPENSES WHICH BECOME PAYABLE AT ANY TIME DURI NG RELEVANT PREVIOUS YEAR AND WAS ACTUALLY PAID WITHIN THE PREVIOUS YEAR. HE NCE, THE IMPUGNED ORDER IS LIABLE TO BE SET ASIDE. 5. ON THE OTHER HAND, THE LD. AUTHORISED REPRESENT ATIVE (AR) SUBMITTED THAT IN THE CASE OF ITO VS. SHRI. CHANDRAKANT J. MANDALE , ITA NO. 1708/PN/2012 FOR 4 ITA NO.6237/MUM/2012 ASSESSMENT YEAR: 2009-10 THE A.Y. 2008-09, FOLLOWING THE DECISION OF PUNE BE NCH OF ITAT IN THE CASE OF M/S GAURIMAL MAHAJAN & SONS, ITA NO 1852/PN/2012, I TAT MUMBAI HAS RESTORED BACK THE SIMILAR ISSUE TO THE FILE OF THE A.O. WITH THE DIRECTION TO ADJUDICATE AFRESH IN ACCORDANCE WITH DIRECTION ISSU ED BY THE. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GO NE THROUGH THE MATERIAL PLACED BEFORE US BY THE PARTIES. THE ONLY ISSUE IN DISPUTE IS WITH REGARD TO DISALLOWANCE ON ACCOUNT LABOUR CHARGES, TRANSPORT C HARGES AND PAINTING CHARGES AFORESAID MADE BY THE AO BY INVOKING SECTIO N 40(A)(IA) OF THE ACT WHICH HAS SINCE BEEN DELETED BY THE CIT(A). WE NOTICE THA T THE COORDINATE BENCH HAS RESTORED THE SIMILAR MATTER TO THE FILE OF AO TO AD JUDICATE THE ISSUE BY FOLLOWING THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN I TO VS. SHRI. CHANDRAKANT J. MANDALE(SUPRA) HOLDING AS UNDER:- 5. AT THE TIME OF HEARING, BOTH THE PARTIES POINTE D OUT THAT THE SIMILAR CONTROVERSY HAS BEEN DECIDED BY THE PUNE BE NCH OF THE TRIBUNAL IN THE CASE OF ITA VS. MIS GAURIMAL MAHAJA N & SONS VIDE ITA NO.1852/PN/2012 DATED 06.01.2014 AND PLACED THE RELIANCE IN THIS REGARD. THE FOLLOWING DISCUSSION IN THE ORDER OF THE TRIBUNAL IS RELEVANT:- 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICER A ND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS BROUGHT TO OUR NOT ICE BY BOTH THE SIDES. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS NOT DEDUCTED TDS ON AN AMOUNT OF RS. 58,81,847/- FO R WHICH THE ASSESSING OFFICER APPLYING THE PROVISIONS OF SECTI ON 40(A)(IA) MADE ADDITION OF THE ABOVE AMOUNT. WE FIND THE LD. CIT(A) 5 ITA NO.6237/MUM/2012 ASSESSMENT YEAR: 2009-10 DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT PROVISIONS OF SECTION 40(A)(IA) ARE NOT APPLICABLE SINCE NO AMOUNT IS PAYABLE AT THE END OF THE YEAR. WHILE DOING SO, HE RELIED UPON THE DECISION OF THE SPECIAL BENC H OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING AND TRANSP ORT (SUPRA). THE COORDINATE BENCH IN THE CASE OF VINAY ASHWINKUM AR JONEJA (SUPRA) HAS ALREADY TAKEN A VIEW THAT PROVISIONS OF SECTION 40(A)(IA) ARE APPLICABLE EVEN IF NO AMOUNT IS PAYAB LE AT THE END OF THE YEAR. THEREFORE, THE ORDER OF THE CIT(A) HAS TO BE REVERSED. 6. AFTER HAVING REVERSED THE ORDER OF THE CIT(A}, T HE TRIBUNAL IN THE CASE OF MIS GAURIMAL MAHAJAN & SONS (SUPRA) DEALT W ITH ANOTHER ARGUMENT OF THE ASSESSEE TO THE EFFECT THAT THE SEC OND PROVISO TO SECTION 40(A)(IA) OF THE ACT INSERTED BY THE FINAN CE ACT, 2012 W.E.F. 01.04.2013 BE APPLIED RETROSPECTIVELY. NOTABLY, THE SAID SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT PRESCRIBES THAT THE DISALLOWANCE U/S 40(A)(IA} OF THE ACT COULD NOT BE MADE IF AN ASSESSEE IS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO SECTION 201 (1) OF THE ACT. THE TRIBUNAL DEALT WITH THE PLEA OF THE ASSESSEE THAT SUCH AMENDMENT WAS INTENDED TO ELIMINATE UNDUE HARDSHIPS TO THE TAXPAYERS AND THEREFORE IT S HOULD BE HELD AS RETROSPECTIVE IN NATURE. ON THIS ASPECT, THE TRIBUN AL IN THE CASE OF MIS GAURIMAL MAHAJAN & SONS (SUPRA) REFERRED TO THE DECISION OF THE COCHIN BENCH OF THE TRIBUNAL IN THE CASE OF ANTONY D. MUNDACKAL VS. ACIT VIDE ITA NO. 38/COCH/2013 DATED 29.11.2013 AND HELD AS UNDER:- '8.2 WE FIND SOME FORCE IN THE ABOVE ARGUMENT OF TH E LD. COUNSEL FOR THE ASSESSEE. WE FIND THE COCHIN BENCH OF THE TRIBU NAL IN THE CASE OF ANTONY D. MUNDACKAL (SUPRA) RELIED ON BY LD. COU NSEL FOR THE 6 ITA NO.6237/MUM/2012 ASSESSMENT YEAR: 2009-10 ASSESSEE, HAD AN OCCASION TO DECIDE AN ISSUE IN THE LIGHT OF THE ABOVE ARGUMENT AND HAS RESTORED THE ISSUE TO THE FI LE OF THE ASSESSING OFFICER WITH CERTAIN DIRECTIONS. THE RELE VANT OBSERVATION OF THE TRIBUNAL AT PARA 7 OF THE ORDER READ AS UNDER: 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFUL LY PERUSED THE RECORD. ACCORDING TO THE ASSESSEE, THERE IS NO WRITTEN CONTRACT BETWEEN HIM AND THE PERSONS DOING POLISHING WORKS. ACCORDING/Y, THE ASSESSEE HAS CONTENDED BEFORE US T HAT THE PROVISIONS OF SEC. 194C SHALL NOT APPLY TO THE POLI SHING CHARGES. HOWEVER, WE NOTICE THAT THE ASSESSING OFFICER HAS G IVEN A CLEAR FINDING THAT ESSENTIAL INGREDIENTS OF A CONTRACT AR E VERY MUCH AVAILABLE IN THE POLISHING WORKS ENTRUSTED BY THE A SSESSEE. FURTHER WE NOTICE THAT THE CBDT, VIDE CIRCULAR NO.4 33 DATED 2509-1985 (1986)(157 ITR ST. 27) HAS CLARIFIED THA T THE PROVISIONS OF SEC. 194C ARE WIDE ENOUGH TO COVER OR AL CONTRACTS ALSO. A CONTRACT IS NORMALLY REDUCED IN WRITING IN ORDER TO MAKE CLEAR THE TERMS AND CONDITIONS, OBLIGATIONS OF THE PARTIES TO THE CONTRACT ETC. IF THE CONDITIONS OF CONTRACT ARE OTH ERWISE UNDERSTOOD BY THE PARTIES, IN VIEW OF THE REPEATED TRANSACTIONS, IN OUR VIEW, THE ABSENCE OF A WRITTEN CONTRACT WOUL D NOT MAKE ANY DIFFERENCE. IN THE INSTANT CASE, THE ASSESSEE I S REPEATEDLY GIVEN WORKS TO THE POLISHING PEOPLE AND HENCE THE T ERMS AND CONDITIONS OF THE WORK WOULD BE CLEARLY UNDERSTOOD BY BOTH THE PARTIES. ACCORDINGLY, WE REJECT THIS CONTENTION OF THE ASSESSEE AND HOLD THAT THE PROVISIONS OF SEC. 194C SHALL APP LY TO THE POLISHING WORKS GIVEN BY THE ASSESSEE. 7 ITA NO.6237/MUM/2012 ASSESSMENT YEAR: 2009-10 7.1 ACCORDING TO LD A.R, THE ASSESSEE HAS ACTED AS A CONDUIT PIPE IN CONNECTION WITH THE POLISHING WORKS BETWEEN THE CUSTOMERS AND THE PERSON DOING POLISHING JOB. ACCOR DINGLY, IT WAS SUBMITTED THAT THERE IS NO PROFIT ELEMENT IN TH E SAID TRANSACTIONS. THE LD AR FURTHER SUBMITTED THAT THE ASSESSEE HAS INCLUDED THE COST OF POLISHING WORKS IN THE SALE VA LUE OF ALUMINIUM EXTRUSIONS, WITHOUT KNOWING TAX IMPLICATI ONS. HOWEVER, WE NOTICE THAT THE ASSESSEE DID NOT FURNIS H ANY PROOF TO SUBSTANTIATE THE ABOVE SAID CLAIMS. THE ASSESSEE , BEING A DEALER IN ALUMINIUM EXTRUSIONS, HAS ONLY SUPPLIED T HE PRODUCTS AFTER CARRYING OUT THE POLISHING WORKS ACCORDING TO THE TASTE AND REQUIREMENT OF CUSTOMERS. IT IS ONLY ONE OF THE MAN Y BUSINESS TECHNIQUES NORMALLY ADOPTED BY A BUSINESS MAN TO IM PROVE HIS SALES, SINCE IT WILL BE VERY DIFFICULT FOR CUSTOMER S TO IDENTIFY THE POLISHING PEOPLE AND GET THE WORK DONE BY THEMSELVE S. HENCE, WE ARE OF THE VIEW THAT IT MAY NOT BE CORRECT TO AR GUE THAT THE CONTRACT EXISTED BETWEEN THE CUSTOMERS AND THE POLI SHING PEOPLE. IN FACT, THE CUSTOMER MAY NOT HAVE ANY CONTACT WITH THE POLISHING PEOPLE IN THIS TYPE OF TRANSACTIONS. HENC E, IT IS HARD TO BELIEVE THE CLAIM OF THE ASSESSEE THAT HE HAS ACTED AS MERE CONDUIT PIPE BETWEEN THE CUSTOMERS AND POLISHING PE OPLE, ACCORDINGLY, THE CLAIM THAT THE ASSESSEE STANDS IN A FIDUCIARY CAPACITY IS ALSO LIABLE TO BE REJECTED. IN THIS KIN D OF FACTUAL SITUATION, IN OUR VIEW, THE EXISTENCE OR ABSENCE OF PROFIT ELEMENT IN THE POLISHING WORKS DOES NOT MAKE ANY DIFFERENCE . 7.2 THE LD COUNSEL, BY PLACING RELIANCE ON THE DECI SION OF SPECIAL BENCH IN THE CASE OF MERYLINE SHIPPING AND TRANSPOR TS (SUPRA) CONTENDED THAT THE PROVISIONS OF SEC. 40(A)(IA) SHA LL APPLY ONLY TO 8 ITA NO.6237/MUM/2012 ASSESSMENT YEAR: 2009-10 AMOUNT PAYABLE AND NOT TO THE AMOUNT PAID. HOWEVER, THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. S IKANDAR KHAN N TUNVAR (357 ITR 312) AND THE HON'BLE CALCUTTA HIG H COURT IN THE CASE OF CIT VS. CRESCENT EXPORT SYNDICATE (ITAT 20 OF 2013) HAVE HELD THAT THE DECISION RENDERED BY THE SPECIAL BENCH IN THE CASE OF MERYLINE SHIPPING & TRANSPORTS IS NOT A GOO D LAW. THE LD A.R, HOWEVER, PLACED RELIANCE ON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF VECTOR SHIPPING SERVICES (357 ITR 642). ON A CAREFUL PERUSAL OF THE DECISION GIVEN BY HON'BLE ALLAHABAD HIGH COURT, WE NOTICE THAT THE HI GH COURT HAS DECIDED THE ISSUE REFERRED TO IT ON A DIFFERENT FOO TING AND HAS MADE A PASSING COMMENT ABOUT THE DECISION RENDERED BY THE SPECIAL BENCH. THUS, THE RATIO OF THE SAID DECISION IS DIFFERENT FROM THAT RENDERED IN THE CASE OF MERYLINE SHIPPING AND TRANSPORTS BY THE SPECIAL BENCH. HENCE, WE ARE INCL INED TO REJECT THE CONTENTIONS OF THE ASSESSEE ON THIS POINT ALSO. 7.3 THE ASSESSEE PLACED RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN COCO-COLA BE VERAGES LTD (SUPRA) IN ORDER TO CONTEND THAT THE REVENUE IS NOT ENTITLED TO RECOVER TAXES, IF THE RECIPIENT HAS DECLARED THE PA YMENTS IN HIS RETURN OF INCOME. WE NOTICE THAT THE ABOVE SAID DEC ISION WAS RENDERED IN THE CONTEXT OF THE PROVISIONS OF SEC. 2 01(1) AND HENCE, WE ARE OF THE VIEW THAT THE RATIO OF THE SAI D DECISION CANNOT BE APPLIED TO THE DISALLOWANCE MADE U/S 40(A )(IA) OF THE ACT, 7.4 THE LAST CONTENTION OF THE ASSESSEE IS THAT THE SECOND PROVISO TO SEC, 40(A)(IA) OF THE ACT, INSERTED BY THE FINAN CE ACT, 2012 WITH EFFECT FROM 1.4.2013 IS CLARIFICATORY IN NATURE AND HENCE THE 9 ITA NO.6237/MUM/2012 ASSESSMENT YEAR: 2009-10 BENEFIT OF THE SAME SHOULD BE APPLIED RETROSPECTIVE LY. HOWEVER, THE CORRECTNESS OF THIS CONTENTION HAS NOT BEEN EXA MINED BY THE TAX AUTHORITIES. HENCE, IN THE INTEREST OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT THIS CONTENTION OF THE ASSESSEE REQUI RES EXAMINATION AT THE END OF THE ASSESSING OFFICER. AC CORDINGLY, WE MODIFY THE ORDER OF THE LD.CIT(A) AND SET ASIDE THI S GROUND TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE ABOVE SAID CONTENTION OF THE ASSESSEE AND DECIDE TH E SAME IN ACCORDANCE WITH LAW, AFTER AFFORDING NECESSARY OPPO RTUNITY OF BEING HEARD. WE MAKE IT CLEAR THAT WE HAVE, IN EFFE CT, REJECTED ALL THE CONTENTIONS OF THE ASSESSEE EXCEPT THE GROUND R ELATING TO APPLICABILITY OF THE SECOND PROVISO TO SEC.40(A)(IA } OF THE ACT TO THE YEAR UNDER CONSIDERATION'. 8.3 SINCE THE ABOVE ARGUMENTS ARE BEING ADVANCED BE FORE THE TRIBUNAL FOR THE FIRST TIME AND THE CORRECTNESS OF THE CONTENTION HAS NOT BEEN EXAMINED BY THE TAX AUTHORITIES, THEREFORE , RESPECTFULLY FOLLOWING THE DECISION OF THE COCHIN BENCH OF THE T RIBUNAL CITED (SUPRA) AND IN THE INTEREST OF JUSTICE, WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMIN E THE ABOVE CONTENTION OF THE ASSESSEE AND DECIDE THE ISSUE AFR ESH AND IN ACCORDANCE WITH LAW. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . WE HOLD AND DIRECT ACCORDINGLY.' 7. FOLLOWING THE AFORESAID DECISION IN THE PRESENT CASE TOO, WE RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R TO ADJUDICATE THE ISSUE AFRESH IN ACCORDANCE WITH THE DIRECTIONS OF T HE TRIBUNAL IN THE CASE OF M/S GAURIMAL MAHAJAN & SONS (SUPRA) AND AS PER L AW. 10 ITA NO.6237/MUM/2012 ASSESSMENT YEAR: 2009-10 7. SINCE THE ISSUE INVOLVED IN THE PRESENT CASE I S IDENTICAL TO THE ISSUE INVOLVED IN THE CASE OF IN ITO VS. SHRI. CHANDRAKAN T J. MANDALE (SUPRA) AND THE COORDINATE BENCH HAS RESTORED THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION, WE RESPECTFULLY FOLLOWING THE DECISION OF THE DECIS ION OF COORDINATE BENCH OF THE TRIBUNAL RENDERED IN ITO VS. SHRI. CHANDRAKANT J. M ANDALE (SUPRA), RESTORE THE MATTER BACK TO THE FILE OF THE A.O TO ADJUDICATE TH E ISSUE AFRESH IN ACCORDANCE WITH THE DIRECTIONS OF TRIBUNAL AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE RESULT APPEAL FILED BY THE REVENUE FOR THE A SST. YEAR 2009-10 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH SEPTEMBER, 2016 SD/- SD/- ( G.S.PANNU ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED : 19/09/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA