ITO 9(1)(1), MUMBAI V. ABHINAV GRANI CERAMICS P.LTD, MUMBAI

ITA 6695/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8790 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 15-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HEMALATHA
• Keywords: Opportunity of being heard; Accommodation entries
• Section: 147

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ I.T.A. NO. 6695/MUM/2016 ( / ASSESSMENT YEAR: 2007 - 08) ITO - 9(1)(1), ROOM NO. 205, 2 ND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 / VS. M/S. ABHINAV GRANI CERAMICS P. LTD., SHOP NO. 15 - 15A, POONAM DARSHAN, B - WING, POONAM NAGAR, MAHAKALI CAVES ROAD, ANDHERI(E), MUMBAI - 400 093 ./ ./ PAN/GIR NO. AAFCA 8515 A ( REVENUE ) : ( ASSESSEE ) C.O. NO. 96/MUM/2017 (ARISING OUT OF ITA NO.6695/MUM/2016) ( / ASSESSMENT YEAR: 2007 - 08) M/S. ABHINAV GRANI CERAMICS P. LTD., SHOP NO. 15 - 15A, POONAM D ARSHAN, B - WING, POONAM NAGAR, MAHAKALI CAVES ROAD, ANDHERI(E), MUMBAI - 400 093 / VS. ITO - 9(1)(1), ROOM NO. 205, 2 ND FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. AAFCA 8515 A ( CROSS OBJECTOR ) : ( RE V ENUE) RE VENUE BY : MS. HEMALATHA ASSESSEE BY : NONE / DATE OF HEARING : 31.08.2017 / DATE OF PRONOUNCEMENT : 01.11 .2017 2 ITA NO. 6695/MUM/2016 & CO NO. 96/M UM/2017 M/S. ABHINAV GRANI CERAMICS P. LTD. / O R D E R PER SHAMIM YAHYA , A. M.: THIS IS AN A PPEAL BY THE REVENUE AND CROSS OBJE CTION BY THE ASSESSEE DIRE CTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 16 , MUMBAI (CIT(A) FOR SHORT) DATED 30.08.2016 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y.) 2007 - 08. 2. T HE GROUNDS OF APPEAL READ AS UNDER : REVENUES APPEA L ( I.T.A. NO. 6695/MUM/2016) 1. WHETHER THE CIT(A) WAS JUSTIFIED IN HOLDING THAT RE - OPENING OF ASSESSMENT U/S. 147 WAS INVALID WHEN THE ASSESSING OFFICER HAD RECEIVED INFORMATION FROM THE INVESTIGATION WING OF THE INCOME TAX DEPARTMENT THAT THE ASSESSEE H AD RECEIVED ENTRIES FROM ENTITIES INDULGING IN THE ACTIVITY OF PROVIDING ACCOMMODATION ENTRIES. ASSESSEES C.O. NO. 96/MUM/2017 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND PROVISIONS OF LAW, THE L D. CIT (APPEAL) ERRED IN NOT ADJUDICATING ON MER IT THAT LOAN TAKEN FROM M/S AVI EXPORTS PROP FIRM OF MR. RAJENDRA JAIN AMOUNTING TO RS. 10,00,000 / - IS GENUINE ONE IGNORING THE EVIDENCES SUBMITTED IN THE APPELLATE PROCEEDING. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND PROVISIONS OF LAW, THE L D. CIT (APPEAL) ERRED IN NOT ADJUDICATING ON DISALLOWANCE OF INTEREST OF RS.26,630/ - MADE BY ASSESSING OFFICER WITHOUT APPRECIATING THE FACT THAT INTEREST WAS PAID TO M/S AVI EXPORTS IN THE ORDINARY COURSE OF BUSINESS OF THE RESPONDENT. 3. ON THE FACTS A ND CIRCUMSTANCES OF THE CASE AND PROVISIONS OF LAW, THE ID. CIT (APPEAL) ERRED IN NOT ADJUDICATING THAT ADDITION OF SHARES CAPITAL OF RS.30,00,000/ - MADE BY ASSESSING OFFICER IS NOT WARRANTED . 3. THESE APPEALS HAVE BEEN FIXED FOR HEARING EARLIER ALSO AND W ERE ADJOURNED AT THE ASSESSEES REQUEST. TODAY ALSO DESPITE NOTICE NONE APPEARED ON BEHALF OF THE ASSESSEE. HENCE , THESE APPEALS ARE BEING DISPOSED OF BY HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSING THE RECORDS. 3 ITA NO. 6695/MUM/2016 & CO NO. 96/M UM/2017 M/S. ABHINAV GRANI CERAMICS P. LTD. 4. UP ON CAREFUL CONSIDER ATION I FIND THAT CIT(A) HAS DECIDED THE ISSUE ONLY ON THE ISSUE OF REOPENING. HE HAS HELD THAT REOPENING TO BE BAD A N D HAS NOT ADJUDICATED UPON THE MERITS OF THE CASE. ASSESSEE IS AGGRIEVED BY THIS AND HAS RAISED THE CROSS OBJECTION THAT CIT - A SHOULD HAVE ADJUDICATED THE ISSUE ON MERITS. I FIND THAT HIGHER COURTS HAVE HELD THAT LOWER AUTHORITIES SHOULD DECIDE BOTH UPON THE JURISDICTIONAL ASPECT AS WELL AS MERITS OF THE CASE FOR PROPER APPRECIATION AND ADJUDICATION BY HIGHER AUTHORITIES. ACCORDINGLY , I REMI T THE ISSUE ON MERITS TO THE FILE OF LEARNED CIT - A. LEARNED CIT - A IS DI R ECTED TO COMPLETE THE APP ELLATE ORDER BY DECIDING UP ON THE MERITS ALSO. NEEDLESS TO A DD , THE ASSESSEE SHOULD BE GRANTED PROPER OPPORTUNITY OF BEING HEARD. SINCE THE ISSUE RELATING TO MERITS HAS BEEN REMITTED TO THE FILE OF THE LD. CIT(A) AS IT HAS BEEN FOUND THAT ORDER OF LD. CIT(A) I S NOT COMPLETE , THE ISSUE OF REOPENING IS NOT BEING ADJUDICATED. THE PARTIES ARE AT LIBERTY TO RAISE THE ISSUE AT APPROPRIATE STAGE . 5. I N THE RESULT , TH IS AP PEAL FILED BY THE RE VENUE AND CROSS OBJECTION BY THE A SSESSEE STAND S ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 01.11.2017 SD/ - (S HAMIM YAHYA ) / A CCOUNTANT MEMBER MUMBAI ; DATED : 01.11.2017 . . ./ ROSHANI , SR. PS 4 ITA NO. 6695/MUM/2016 & CO NO. 96/M UM/2017 M/S. ABHINAV GRANI CERAMICS P. LTD. / 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 F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI