DCIT 10(2)(2), MUMBAI V. MARRIOTT HOTELS INDIA P.LTD, MUMBAI

ITA 66/MUM/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9030 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 05-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L K S DAHIYA
• Keywords: Depreciation; Transfer pricing; Opportunity of being heard; Additional evidence; Reasonable cause; Validity of assessment; Non compliance
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAM LAL NEGI, JM ITA NO. 66 /MUM/ 2015 (ASSESSMENT YEAR: 2009 - 10 ) DY. CIT - 10(2)(2) ROOM NO. 209, 2 ND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 VS. M/S. MARRIOTT HOTELS INDIA PVT. LTD. UNIT 2 - 4, GROUND FLOOR, DYNASTY BUSINESS PARK, WING A, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI - 400 086 PAN/GIR NO. AABCM 0274 G ( APPELLANT ) : ( RESPONDENT ) & CROSS OBJECTION NO. 118/MUM/2016 (ARISING OUT OF ITA NO.66/MUM/2015) (ASSESSMENT YEAR: 2009 - 10) M/S. MARRIOTT HOTELS INDIA PVT. LTD. UNIT 2 - 4, GROUND FLOOR, DYNASTY BUSINESS PARK, WING A, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI - 400 086 VS. DY. CIT - 10(2)(2) ROOM NO. 209, 2 ND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 PAN/GIR NO. AABCM 0274 G ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI L. K. S. DAHIYA RESPONDENT BY : SHRI NIRAJ SHETH DATE OF HEARING : 09.10.2018 DATE OF PRONOUNCEMENT : 12.12 .2018 O R D E R PER SHAMIM YAHYA, A. M.: THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE ARISING OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 17, MUMBAI ( LD.CIT(A) FOR SHORT) DATED 13.10.2014 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y.) 2009 - 10. 2. THE GROUN DS OF APPEAL RAISED BY THE REVENUE READ AS UNDER: 1) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN REVERSING THE ASSESSING OFFICERS STAND OF REJECTING THE BOOKS OF ACCOUNTS WITHOUT APPRECIATING THAT THE ASSE SSEE FAILED TO PRODUCE NECESSARY DETAILS FOR COMPLETION OF ASSESSMENT DESPITE BEING GIVEN SUFFICIENT OPPORTUNITIES.' 2 ITA NO.66/MUM/15 & CO NO. 118/MUM/ 16 2) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN REVERSING THE ASSESSING OFFICERS STAND OF REJECTING THE BOOKS OF ACCOUNTS WHEN THE LD.CIT(A) HIMSELF HAS JUSTIFIED THE ACTION OF THE ASSESSING OFFICER IN MAKING A BEST JUDGED ASSESSMENT.' 3) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN DELETING TH E DISALLOWANCE MADE ON ACCOUNT OF OPERATION AND ADMINISTRATIVE EXPENSES WITHOUT APPRECIATING THAT THE ASSESSEE FAILED TO PRODUCE THE DETAILS AND DOCUMENTS AT THE ASSESSMENT AND APPELLATE PROCEEDINGS AND THAT THESE EXPENSES REMAIN UNVERIFIED.' 4) THE APPEL LANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN CROSS OBJECTION READS AS UNDER: 1. ON THE BASIS OF CIRCUMSTANCES OF FACTS AND I N LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] / LEARNED ASSESSING OFFICER ERRED IN UPHOLDING/MAKING BEST JUDGMENT ASSESSMENT DESPITE THE FACT THAT THE ASSESSEE DULY COMPLIED WITH THE NOTICES, SUBMITTED THE RELEVANT INFORMATION AND ATTE NDED THE SCHEDULED HEARINGS BEFORE THE LEARNED A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 24 DAYS IN FILING THE APPEAL. 5. UPON HEARING THE REASONABLE CAUSE ATTRIBUTED FOR THE DELAY AND HEARING BOTH THE COUNSEL AND PERUSING THE RECORDS, WE CONDONE THE DELAY IN FILING THE APPEAL. 6. BRIEF FACTS OF THE CASE ARE AS UNDER: DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT NOTICE DATED 03/08/2010 U/S. 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE ON 06.08 .2 010 FIXING THE HEARING ON 14/08/2010. HOWEVER, THERE WAS NO COMPLIANCE FROM THE ASSESSEE TO THIS NOTICE ON THE SCHEDULED DATE. FURTHER, THE ASSESSEE SUBMITTED BASIC DETAILS ON 16 - 08 - 2010. FURTHER, NOTICE U/S 142(1) OF THE ACT DATED 09 - 08 - 2011 WAS ISSUED TO THE ASSESSEE ASKING THE ASSESSEE TO APPEAR ALONG WITH DETAILS AS PER QUESTIONNAIRE ON 16 - 08 - 2011. AGAIN THERE WAS NO COMPLIANCE TO THE SAID NOTICE. ACCORDINGLY, PENALTY U/S 271(L)(B) OF THE ACT WAS LEVIED ON THE ASSESSEE COMPANY FOR NON - ATTENDANCE. THEREAFTER, NOTICE U/S 142(1) OF THE 3 ITA NO.66/MUM/15 & CO NO. 118/MUM/ 16 ACT DATED 26 - 09 - 2011 WAS ISSUED TO THE ASSESSEE REQUESTING THE ASSESSEE TO APPEAR ON 03 - 10 - 2011. IN RESPONSE TO THE N OTICE DATED 26 - 09 - 2011, THE DETAILS WITH RESPECT TO QUESTIONNAIRE WERE SU BMITTED ON 03 - 10 - 2011. THEREFORE, THERE WAS NO OPTION WAS LEFT WITH AO TO PASS THE ORDER U/S 144 OF THE ACT. VIDE LETTER DATED 05 - 10 - 2011, THE APPROVAL OF THE CIT - 8, MUMBAI WAS SOUGHT FOR MAKING TRANSFER PRICING REFERENCE U/S 92CA OF THE ACT IN VIEW OF THE FACT THAT THE ASSESSEE COMPANY HAD ENTERED INTO TRANSACTIONS WITH ITS ASSOCIATE ENTERPRISES TO THE TUNE OF RS. 2664.67 LAKHS. SUBSEQUENTLY, ON THE RECEIPT OF APPROVAL FROM CIT - 8, MUMBAI TRANSFER PRICING REFERENCE U/S 92CA OF THE ACT WAS MADE TO THE ADDL. CIT(TRANSFER PRICING) I - (5), MUMBAI. FURTHER, NOTICE U/S. 142(1) DATED 18 - 05 - 2012 WAS ISSUED AND SERVED ON TO THE ASSESSEE FIXING THE HEARING ON 12.07.2012. CERTAIN DETAILS WERE FILED BY THE ASSESSEE ON 12 - 07 - 2012 AS PER THE QUESTIONNAIRE DATED 18 - 05 - 2012. SUBSEQUENTLY ANOTHER NOTICE U/S.!42(L) OF THE ACT DATED 10 - 08 - 2012 WAS ISSUED AND SERVED ON TO THE ASSESSEE REQUESTING THE ASSESSEE TO APPEAR ON 22 - 08 - 2012 BUT AGAIN THERE WAS NO COMPLIANCE ON THE SPECIFIED DATE FROM THE SIDE OF THE ASSESSEE. THEREAFTER, SHOW CAUSE NOTICE DATED 06.03.2013 FOR FINALIZING PROCEEDINGS EXPARTE U/S 144 OF THE ACT WAS ISSUED FIXING THE HEARING ON 11 - 03 - 2013. THE RESPONSE TO THE SAME LETTER WAS NOT RECEIVED BY THE OFFICE OF AO TILL THE DATE OF PASSING OF THE ORDER. 7. T HE AO AFT ER PLACING RELIANCE ON CIT VS RAYALA CORPORATION (P) LTD. (MAD) 215 ITR 883, KACHWALA GEMS VS JOT (SC) 288 ITR10, CIT VS P.P. KHADER HAJI (KER) 234 ITR 461, SWADESHI POLYTEX LTD. VS ITO (ALL) 127 ITR 287, PAWAN KUMAR PAREEK VS ITO 2010 - TIOL - 718 - HC - RAJ - IT A ND CWT VS MOTOR AND GENERAL FINANCE LTD. (DEL) 332 ITR 1, PASSED THE ORDER U/S. 144. WHILE DOING SO THE LD. AO ALSO REJECTED THE BOOKS 4 ITA NO.66/MUM/15 & CO NO. 118/MUM/ 16 OF ACCOUNT OF THE APPELLANT AND STATED THAT THE ASSESSING OFFICER CAN REJECT THE BOOKS OF ACCOUNTS OF THE ASSESSEE WITHIN THE MEANING OF THE SECTION 145(3) OF THE IT ACT, 1961. GENUINE EFFORTS WERE PUT FORTH BY THE OFFICE BUT IT WAS OBSERVED FROM THE RECORDS THAT THE ASSESSEE COMPANY DID NOT COOPERATE WITH T HE AO SO AS TO ENABLE HIM TO COMPLETE THE ASSESSMENT. DESPITE THE FA CT THAT THE ASSESSEE COMPANY WAS GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD THE ASSESSEE WAS RELUCTANT TO GIVE THE NECESSARY DETAILS NEEDED TO COMPLETE THE PROCESS OF SCRUTINY ASSESSMENT PROCEEDINGS. HENCE, THE ASSESSMENT IS COMPLETED EX - PARTE ON THE BASI S OF MATERIALS AVAILABLE ON RECORD AND FOR NON PRODUCTION OF VARIOUS DOCUMENTS, THE BOOKS OF ACCOUNTS OF THE ASSESSEE WAS REJECTED UNDER SECTION 145(3) OF THE IT ACT, 1961 AND ASSESSMENT WAS COMPLETED U/S.144 OF THE ACT. FURTHER, THE A.O. DISALLOWED CERTAI N EXPENSES WHICH READ AS UNDER: THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS STATED THAT THE TOTAL INCOME OF THE ASSESSEE WAS COMPUTED AFTER DISALLOWING VARIOUS EXPENSES FOR THE FOLLOWING REASONS: (I) THE OPERATIONAL AND ADMINISTRATION EXPENSES REMAINED TOTALLY UNVERIFIED, (II) DEPRECIATION ON FIXED ASSETS REMAINED UNVERIFIED. (III) GENUINENESS OF THE EXPENDITURE THAT THEY WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS REMAINED UNVERIFIED. THE OTHER PR OVISION OF I.T. ACT, FOR CLAIMING EXPENDITURE REMAINED UNVERIFIED, (IV) INCREASE IN RESERVE AND SURPLUS DURING THE YEAR REMAINED UNVERIFIED.' (V) INCREASE IN UNSECURED LOAN DURING THE YEAR REMAINED UNVERIFIED, (VI) THE TDS COMPLIANCE REMAINED U NVERIFIED. IN THE ABSENCE OF ANY EVIDENCE AND IN LIGHT OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. CALCUTTA AGENCY LTD. 19 ITR 191 WHEREIN IT WAS HELD THAT THE ONUS OF PROVING NECESSARY FACTS IN ORDER TO AVAIL THE DEDUCTION U/S. 37( 1) IS ON THE ASSESSEE, IF THE ASSESSEE FAILS TO ESTABLISH THE FACTS NECESSARY TO SUPPORT HIS CLAIM FOR DEDUCTION, THE CLAIM FOR DEDUCTION IS NOT ADMISSIBLE. ONUS LIES ON THE ASSESSEE TO PROVE THE VERACITY OF THE EXPENSES CLAIMED BY IT. FURTHER, THE AO ALS O RELIED ON THE DECISION OF ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT VS. TRANSPORT CORPORATION OF INDIA LTD. 256 ITR 701 AND ON THE CASE OF CIT VS. IMPERIAL CHEMICAL INDUSTRIES (I) PVT. LTD. 74 ITR 17. THE COMPUTATION OF THE INCOME BY THE A.O. READ AS UNDER: 5 ITA NO.66/MUM/15 & CO NO. 118/MUM/ 16 RS. RS. TOTAL INCOME (AS PER RETURN OF INCOME) 3,83,52,193/ - ADDITIONS : - DISALLOWANCE @ 50% OF OPERATIONAL AND ADMINISTRATION EXPENSES(PARA NO.5) 12,09,35,932 DEPRECIATION DISALLOWED @ 50%(PARA NO.5) 13,98,647 INCREASE IN RESERVE SURPLUS(PARA NO.5) 2,21,85,786 14,45,20,365 TOTAL INCOME 18,28,72,558 TOTAL INCOME ROUNDED OFF 18,28,72,560 8. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED THAT THE ENTIRE DETAILS AS CALLED FOR BY THE AO WAS SUBMITTED DURING THE ASSESSMENT PROCEEDINGS. IT WAS SUBMITTED THAT SINCE THE ENTIRE DETAILS IS THERE ON RECORD, THE A.O. SHOULD HAVE EXAMINED AND SOUGHT FURTHER CLARIFICATION, WHICH HE NEVER DID. HENCE, THE LD. CIT(A) SOUGHT REPORT FROM THE A.O. THE A.O. SUBMITTED THAT THE AD DITIONAL EVIDENCE PRODUCED BY THE ASSESSEE SHOULD NOT BE ADMITTED. FURTHER, THE A.O. SUBMITTED A DISREGARDING NON COMPLIANCE BY THE ASSESSEE. THE ASSESSEE FURTHER SUBMITTED BEFORE THE LD. CIT(A) THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND IT IS ENGA GED IN THE BUSINESS OF MANAGING FIRST CLASS, FULL SERVICE INTERNATIONAL HOTELS UNDER THE MARRIOTT BRANDS. IT WAS STATED THAT THE NOTICE S ISSUED U/S. 143(2) AND 142(1) . T HE ASSESSEE WAS REQUESTED TO PRODUCE VARIOUS DETAILS ON OR BEFORE 14.08.2010. THAT THE ASSESSEE SUBMITTED THE PRELIMINARY DETAILS, I.E., THE AUDITED FINANCIAL STATEMENTS, TAX AUDIT REPORT, TRANSFER PRICING REPORT AND THE RETURN ON 16.08.2010. FURTHER, IT WAS SUBMITTED THAT SOME FURTHER DETAILS WERE SOUGHT BY THE A.O. WHICH WERE DULY COMPLIED ON 12.07.2012. THEREAFTER, AGAIN THE A.O. ISSUED NOTICE DATED 10.08.2012 REQUIRING CERTAIN INFORMATION. THAT SINCE THE DETAILS SOUGHT WERE SUBSTANTIALLY THE SAME AS SUBMITTED ON JULY, 2012, NO ADDITIONAL EVIDENCES WERE SUBMITTED. THAT ON THE DESIGNATED DA TE, THE ASSESSEE COMPANYS REPRESENTATIVE DULY VESTED THE OFFICE OF THE A.O. AND DISCUSSED THE CASE. HOWEVER, IT WAS CLAIMED THAT THE A.O.S ORDER MENTIONS THAT THERE WAS 6 ITA NO.66/MUM/15 & CO NO. 118/MUM/ 16 NO APPEARANCE. THAT WITHOUT CONSIDERING THE VARIOUS DETAILS SUBMITTED BY THE ASSESSEE , THE A.O. HAS PASSED THE ORDER. FURTHER, IT WAS SUBMITTED THAT THE SHOW CAUSE NOTICE DATED 06.03.2013 WAS NOT RECEIVED BY THE ASSESSEE. HENCE, THE ASSESSEE DEPRIVED AN OPPORTUNITY OF BEING HEARD. 9. CONSIDERING THE ABOVE, THE LD. CIT(A) UPHELD THE ACTIO N OF THE A.O. IN FRAMING THE ASSESSMENT U/S. 143(3). HE HELD AS UNDER: 1.3.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND CONTENTION OF THE LD. AR OF THE APPELLANT AND ALSO CAREFULLY GONE THROUGH THE FACTS AND EXPLANATION GIVEN BY THE LD. AR OF THE APPELLANT AS WELL AS THE LD. AO. THE ENTIRE PROCEEDINGS DETAILS INDICATE THAT THERE WAS A VERY CASUAL APPROACH UNDERTAKEN BY THE APPELLANT IN REPRESENTING ITS CASE BEFORE THE LD. AO. IT IS A MATTER OF RECORD THAT IN RESPONSE TO NOTICE UNDER SECTION 142(1) OF THE ACT ON MAY 18, 2012 BY THE AO REQUESTING APPELLANT TO PRODUCE VARIOUS DETAILS ON OR BEFORE JULY 12, 2012, IN RESPONSE TO THE SAME, APPELLANT MADE DETAILED SUBMISSION ON THE APPOINTED DATE IE JULY 12, 2012. THE DETAILS THUS WERE PLACED ON RECORD AND THEREAFTER APPELLANT CHOOSES NOT TO ATTEND AS ACCORDING TO IT NO NEW DETAILS WERE CALLED FOR. THIS IS A WEIRD LOGIC AS ATTENDANCE IS REQUIRED FOR SEEKING SEVERAL CLARIFICATIONS EVEN IN RESPECT OF DETAILS FURNISHED. NOT TO ATTEND IS A DELIBERATE AVOIDANC E OF THE PROCEEDINGS AND DEFYING THE LAWFUL AUTHORITY. FURTHER, IT WAS STATED THAT THE APPELLANT HAS NOT RECEIVED THE FINAL SHOW CAUSE U/ 144 WHILE REST OF THE NOTICES WERE RECEIVED BY THE APPELLANT ON THE SAME ADDRESS IS A STATEMENT WHICH IS TO BE TAKEN W ITH A PINCH OF SALT. IT IS HIGHLY IMPROBABLE PROPOSITION AND APPELLANT ON ITS PART ALSO DID NOT ADDUCE ANY EVIDENCE OF THE SAME BEFORE ME, REALISING THIS THAT PRESUMPTION OF LAW OPERATES IN FAVOUR OF THE AO MOMENT HE ADDUCES THE SERVICE OF THE NOTICE THROU GH POST. ACCORDINGLY, UNDER THE CIRCUMSTANCES OF THE FACTS OF THE APPELLANT'S CASE, THE ACTION OF THE AO IN FRAMING THE ASSESSMENT U/ 144 IS UPHELD AND NO NEW EVIDENCE IS TAKEN FOR ADJUDICATION OF THIS CASE, THUS THESE GROUNDS OF APPEAL ARE DISMISSED. 10 . AS REGARDS THE A.O.S ACTION OF REJECTING THE BOOKS OF ACCOUNT, THE ASSESSEE CONTENDED THAT THE A.O. SHOULD NOT HAVE VISITED THE BOOKS OF ACCOUNT WITHOUT POINTING OUT ANY DEFECT IN THE ACCOUNTS AND WITHOUT CONSIDERING THAT THE ASSESSEE HAS COMPLIED WITH ALL . T HE LD. CIT(A) CONSIDERED THE ASSESSEES PLEA AND PROCEEDED TO EXPOUND UPON THE TER M D EPENDING UPON THE LAW RELATING TO SATISFACTION OF BOOKS OF ACCOUNT. THEREAFTER, 7 ITA NO.66/MUM/15 & CO NO. 118/MUM/ 16 THE HELD AS UNDER, ACCEPTING THE ASSESSEES PLEADING THAT THERE WAS NO MERIT IN THE A CTION OF THE A.O. IN REJECTING THE AUDITED ACCOUNTS. 1 1 . THEREAFTER, THE LD. CIT(A) FURTHER MADE VARIOUS OBSERVATIONS THAT THE A.O. MADE THE DISALLOWANCE WITHOUT PROPER EXAMINATION AND PROCEEDED TO DELETE ALL THE DISALLOWANCES W ITHOUT ANY REFERENCE WHATSOEVER TO THE ACTUAL FACTS AND THE BOOKS OF ACCOUNT OF THE ASSESSEE. 1 2 . AGAINST THE ABOVE ORDER, THE ASSESSEE AND THE REVENUE ARE IN CROSS APPEAL BEFORE US. 1 3 . THE LD. COUNSEL OF THE ASSESSEE HAS SOUGHT TO FILE SOME ADDITIONA L EVIDENCE IN THE SHAPE OF EMAIL CORRESPONDENCE BETWEEN THE STAFF OF THE ASSESSEE, WHICH SHOWED THAT THERE WAS ATTENDANCE ON A SPECIFIC DAY BY THE ASSESSEES LD. AUTHORIZED REPRESENTATIVE BEFORE THE A.O. 1 4 . UPON HEARING BOTH THE COUNSEL AND PERUSING THE RECORDS, WE FIND THAT THE A.O. HAS NOTED THE LACK OF SUBMISSIONS OF THE DETAILS AND BOOKS BY THE ASSESSEE. HE HAS ALSO REJECTED THE BOOKS OF ACCOUNT IN ABSENCE OF ASSESSEE S COOPERATION AND HIS OBSERVATION T HAT THE PROPER DETAILS WERE NOT SUBMITTED. THERE AFTER, HE MADE SOME ADHOC DISALLOWANCE WITHOUT REFERENCE TO THE BOOKS OF ACCOUNT. 1 5 . UPON THE ASSESSEES APPEAL, THE LD. CIT(A) HAS PASSED A VERY CONTRADICTORY ORDER WITHOUT ANY REFERENCE TO THE EXAMINATION O F THE ACTUAL BOOKS OF ACCOUNT. H E HAS UPHELD THE A.O.S ORDER FOR LACK OF APPEARANCE AND CO - OPERATION BY THE ASSESSEE AND THE VALIDITY OF ASSESSMENT FRAMED U/S. 14 4 . THEN HE HAS TAKEN A DIVERG ENT STAND THAT THE REJECTION OF 8 ITA NO.66/MUM/15 & CO NO. 118/MUM/ 16 THE BOOKS WAS NOT PROPER AND THE ADDITIONS MADE WERE LIABLE TO B E DELETED WITHOUT ANY ACTUAL VERIFICATION OF BOOKS . WE NOTE THAT THE ASSESSEE HAD SUBMITTED THAT THE ASSESSEE H AD NOT RECEIVED THE L A ST NOTICE , HENCE, IT WAS PLEADED THAT THE PROPER OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE. NOW THE LD. CIT(A) WITHOUT REFE RRING TO THE EXAMINATION OF THE BOOKS OF ACCOUNT, DESPITE HIS COTERMINOUS POWER HAS DELETED ALL THE DISALLOWANCE. 16. WE ARE OF THE CONSIDERED OPINION THAT NEITHER THE ASSESSMENT CAN BE FRAMED DE HORS THE FACTS AND FIGURES NOR THE SAME CAN BE DELETED B Y ONLY THEORETICAL EXPLANATION BY THE ASSESSEE AND THE LD. CIT(A). IN OUR CONSIDERED OPINION, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE, THE ISSUE IN THIS APPEAL NEEDS TO BE REMITTED TO THE FILE OF THE A.O. THE A.O. IS DIRECTED TO COMPLETE THE ASSESSMENT AFTER PROPER EXAMINATION OF BOOKS OF ACCOUNT. THE ASSESSEE IS ALSO DIRECTED TO CO - OPERATE WITH THE A.O. THERE IS NO REASON WHY THE ASSESSEE CAN SUBMIT DETAIL RECORD AND BOOKS AND APPEAR BEFORE THE TRANSFER PRICING OFFICER AND IG NORE THE NOTICES AND REQUEST OF THE A.O. THE ISSUE OF TRANSFER PRICING AND DOMESTIC ASSESSMENT NEEDS TO BE GIVEN EQUAL SIGNIFICANCE BY THE ASSESSEE. 18. IN THE RESULT, THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE STAND ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 2 . 1 2 . 2 0 1 8 S D / - S D / - ( RAM LAL NEGI ) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 1 2 . 1 2 . 2 0 1 8 ROSHANI , SR. PS 9 ITA NO.66/MUM/15 & CO NO. 118/MUM/ 16 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI