VIJAYA GTB PROJECTS PVT. LTD., MUMBAI V. DCIT CIR. 7(3), MUMBAI

ITA 6458/MUM/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9672 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 03-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Business expenditure; Set aside
• Section: 69C; 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' F ' BENCH, MUMBAI BEFORE HONBLE SHRI SANDEEP GOSAIN , JUDICIAL MEMBER AND HONBLE SHRI N.K. PRADHAN , ACCOUNTANT MEMBER ITA NO. 6458 /MUM/ 2016 (ASSESSMENT YEAR: 2009 - 10 ) M/S. VIJAYA GTB PROJECTS P. LTD. NO. 477, BABYLON BUILDING ADENWALA ROAD MATUNGA (CENTRAL)MUMBAI 400019 VS. DCIT, CIRCLE - 7(3) AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 PAN AACCV2656G APPELLANT RESPONDENT APPELLANT BY: SHRI NADEEM LASANI RESPONDENT BY: SHRI RAJEEV GUBGOTRA DATE OF HEARING: 11 .06.2019 DATE OF PRONOUNCEMENT: 21 . 06.2019 O R D E R SANDEEP GOSAIN , JM THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - 14 , MUMBAI DATED 29 . 07 .201 6 AND IT RELATES TO A.Y. 2009 - 10 . 2. BRIEF FACTS OF THE CASE ARE THAT IN THE PRESENT CASE ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S 147 OF INCOME TAX ACT, 1961 (HEREINAFTER 'THE ACT') WAS PASSED ON 28.02.2014 MAKING AND. AGGRIEVED BY THE ASSESSMENT ORDER THE ASSESSEE HAS PREFERRED APPEAL BE FORE THE CIT(A). THE LEARNED CIT(A) AFTER CONSIDERING THE CASE OF BOTH PARTIES DISMISSED THE APPEAL OF THE ASSESSEE BY UPHOLDING THE ADDITION MADE ON ACCOUNT OF DISALLOWANCE UNDER SECTION 69C OF THE ACT OF ` 27,88,841/ - AND DISALLOWANCE ON ACCOUNT OF BEING NON BUSINESS EXPENSES OF ` 26,02,286/ - . AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. AT THE VERY OUTSET WE NOTICED THAT THERE IS A DELAY OF 22 DAYS IN FILING THE APPEAL. WE HAVE GONE THROUGH THE AFFIDAVIT FILED BY THE ASSESSEE ITA NO. 6458 /MUM/ 2016 M/S. VIJAYA GTB PROJECTS P. LTD . 2 TO SUPPORT THE APPLICATION FOR CONDONING THE DELAY. AFTER CONSIDERING THE CONTENTS OF THE AFFIDAVIT WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR DECIDING ON MERIT. 4. THE LEARNED A.R. SUBMITTED THAT HE DO NOT WANT TO PRESS THE MATTER OF REOPENING OF ASSESSMENT. THEREFORE GROUND NOS. 1 TO 3 RAISED BY THE ASSESSEE WITH REGARD TO CHALLENGING THE ORDER ON REOPENING BY THE AO HAS BEEN DISMISSED AS NOT PRESSED. 5. AS FAR AS THE OTHER TWO GROUNDS OF DISALLOWANCE UNDER SECTION 69 C OF THE ACT OF ` 27,88,841/ - A ND DISALLOWANCE ON ACCOUNT OF BEING NON BUSINESS EXPENSES OF ` 26,02,286/ - ARE CONCERNED, WE NOTICE THAT THE LEARNED CIT(A) WHILE ADJUDICATING THE SAID GROUNDS HAD CATEGORICALLY MENTIONED IN PARAS 5 AND 6 THAT NECESSARY DOCUMENTS WERE NOT PRODUCED BY THE AS SESSEE IN THE INSPITE OF GIVING SO MANY OPPORTUNITIES. HOWEVER, THE ASSESSEE SUBMITTED BEFORE US THAT HE HAD PROVIDED ALL THE REQUIRED DOCUMENTS THAT WERE CALLED FOR BY THE REVENUE FROM TIME TO TIME AND IN THIS RESPECT HE HAS DRAWN OUR ATTENTION TO THE WRI TTEN SUBMISSION. IT WAS ALSO SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT HE IS STILL READY TO COOPERATE WITH THE REVENUE TO COME TO A LOGICAL CONCLUSION AND IS READY TO SUBMIT ALL OTHER DOCUMENTS WHICH ARE IN HIS POWER AND POSSESSION IN ORDER TO SUBSTANTIATE HIS CLAIM. 6. ON THE OTHER HAND, THE LEARNED D.R. HAS NO OBJECTION TO THE SAID REQUEST OF THE ASSESSEE. 7. THEREFORE KEEPING IN VIEW THE INTEREST OF JUSTICE, EQUITY AND FAIR PLAY WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO ADJUDICATE THE ISSUE AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. ASSESSEE IS AT LIBERTY TO FILE ANY OTHER DOCUMENTS IN ORDER TO SUBSTANTIATE HIS CLAIM AS HE DEEMS FIT. ITA NO. 6458 /MUM/ 2016 M/S. VIJAYA GTB PROJECTS P. LTD . 3 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JUNE, 2019 . SD/ - SD/ - ( N.K. PRADHAN ) ( SANDEEP GOSAIN ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 21 ST JUNE, 2019 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) - 14 , MUMBAI 4. THE CIT - 8 , MUMBAI 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.