SUNITA PRASHANT FULLWANE, KALYAN V. DCIT CIR 2, KALYAN

ITA 6259/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2084 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 18-10-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 28-10-2013
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA YADAV
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Gift; Opportunity of being heard; Additional evidence; Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER I.T.A. NO.6259/M/2013 (AY: 2008 - 2009 ) SUNITA PRASHANT FULLWANE, B - 1101, OSHO TOWER, OSHO DHARA RESIDENCY, GODREJ HILL, KALYAN. / VS. DCIT, CIRCLE - 2, KALYAN. ./ PAN : AAMPF2960L ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M. SUBRAMANIAN / RESPONDENT BY : SHRI AKHILENDRA YADAV, DR / DATE OF HEARING : 03.11.2016 / DATE OF PRONOUNCEMENT : 11 .11.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 28.10.2013 IS AGAINST THE ORDER OF THE CIT (A) - II, THANE DATED 27.6.2013 FOR THE ASSESSMENT YEAR 2008 - 2009. IN THIS APPEAL ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN CONFIRMING DISALLOWANCE OF RS. 2,06,621/ - OUT OF 1) PETROL & TOLL EXPENSES; (2) TRAVELLING EXPENSES; (3) BUSINESS PRESENTATION; (4) LODGING EXPENSES; (5) HOTEL EXPENSES AND (6) GIFTS AND PRIZE. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 14,87,967/ - ON ACCOUNT OF COMMISSION PAID TO SHRI NARENDRA PANDIT. 2. BEFORE US, AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE, DEVIATING FROM THE GROUNDS RAISED IN THE APPEAL, SUBMITTED THAT THIS APPEAL NEEDS TO BE REMANDED TO THE FILE OF THE AO / CIT (A) FOR FRESH ADJUDICATION. IN SUPPORT OF THE SAME, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE ORDER OF THE CIT (A) DATED 27.6.2013 AND SUBMITTED THAT THE SAME IS A N EXPARTE ORDER AND THE SAME WAS MADE IN THE ASSESSEES NAME WITH AMBARNATH (E) ADDRESS. BRINGING OUR ATTENTION TO THE ORDER OF THE AO DATED 24.12.2010, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE KALYAN ADDRESS IS THE PROPER ONE. WHEN THE QUESTIONS W ERE RAISED BY THE BENCH ABOUT THE SOURCE OF THE AMBARNATH (E) ADDRESS AND WHEN THE SAID ADDRESS WAS 2 DEMONSTRATED TO THE AO RELYING ON THE CONTENTS OF FORM NO.35 FILED BEFORE THE CIT (A), LD COUNSEL FOR THE ASSESSEE MENTIONED THE FACT OF CHANGE OF ADDRESS B ACK TO KALYAN ADDRESS WAS COMMUNICATED VIDE LETTER DATED 29.5.2012, BUT THE SAME WAS IGNORED BY THE LD CIT (A) AND PROCEEDED TO SEND THE NOTICES TO AMBARNATH (E) ADDRESS AND MADE THE IMPUGNED ORDER ON THE SAME. THE FACT IS THAT THE ASSESSEE NEVER RECEIVED THE NOTICES ISSUED BY THE CIT (A) AND THEREFORE, THE ORDER OF THE CIT (A) WAS ADJUDICATED WITHOUT THE ASSESSEES REPRESENTATIVE. IN THE LIGHT OF THESE DEVELOPMENTS, LD COUNSEL FOR THE ASSESSEE ARGUES FOR REMANDING THIS APPEAL FOR FRESH ADJUDICATION WITH A DIRECTION TO PERMIT THE APPEAL TO FILE THE RELEVANT PAPERS WHICH MAY BECOME ADDITIONAL EVIDENCE IN A LEGAL PARLANCE. 3. ON HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US, WE FIND THE AO MADE ASSESSMENT OF RS.30,38,378/ - AGAINST THE RETURNED INCOME OF RS. 13,43,790/ - . MOST OF THE ADDITIONS ARE AD - HOC IN NATURE FOR WANT OF PAPERS AND SUPPORTING EVIDENCES. THE SAME WERE CONFIRMED BY THE CIT (A) IN THE EXPARTE ADJUDICATION. CONSIDERING THE SPECIFIC FACTS OF THIS CASE, WE ARE OF THE OPINION, THE PROPER REPRESENTATION IS MISSING FROM THE ASSESSEES SIDE FOR ONE REASON OR OTHER. IT IS IN THE INTEREST OF JUSTICE THAT THIS MATTER SHOULD BE REMANDED TO THE FILE OF THE AO WITH THE LIBERTY TO THE ASSESSEE TO FILE PAPERS / DOCUMENTS / EVIDENCES, IF ANY, IN SUPPORT OF THE CLAIM. AO IS DIRECTED TO ENTERTAIN THE SAME AND MAKE THE ASSESSME NT AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNC ED IN THE OPEN COURT O N 1 1 T H NOVEMBER, 2016. S D / - S D / - ( RAM LAL NEGI ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 11.11.2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI