PAN INDIA PARYATAN P. LTD, MUMBAI V. DCIT CIR 7(1), MUMBAI

ITA 6724/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101015 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 20-11-2013
• Court: TRIBUNAL
• Assessee Lawyers: RAJESH CHAMARIA
• Keywords: Principle of natural justice
• Section: 43B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI . . , , BEFORE SHRI R.C.SHARMA , A M & SHRI PAWAN SINGH , J M ./ ITA NO . 6724 / MUM/20 1 3 ( / ASSESSMENT YEAR : 2009 - 10 ) PAN INDIA PARYATAN PRIVATE LIMITED, 10 TH FLOOR, TIMES TOWER, KAMALA CITY, SENAPATI BAPAT MARG, LOWER PAREL, MUMBAI - 400013 VS. DCIT, CIRCLE - 7(1), MUMBAI - 20 ./ ./ PAN/GIR NO. : A A ECP 8119 N ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI NIRAJ SHETH & SHRI RAJESH CHAMARIA /REVENUE BY : SHRI NIMESH YADAV / DATE OF HEARING : 27 /0 8 / 2 015 / DATE OF PRONOUNCEMENT 11/09 /2015 / O R D E R PER PAWAN SINGH (J .M) : TH E PRESENT APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 6 - 9 - 2013 , PASSED BY THE CIT(A) - 13 , MUMBAI ON THE FOLLOWING GROUNDS : - 1. THE LEARNED CIT(A) ERRED IN LAW AND FACTS IN DISMISSING THE APPEAL AS INVALID APPEAL. THE REASONS GIVEN BY HER FOR DOING SO ARE WRONG, CONTRARY TO THE FACTS OF THE CASE AND AGAINST THE PROVISIONS OF LAW. 2. CLAIM OF ENTERTAINMENT DUTY OF RS.27,64,789/ - ON PAYMENT BAS IS. (I) THE LD. CIT(A) ERRED IN LAW AND FACTS IN NOT ALLOWING ENTERTAINMENT DUTY OF RS.27,64,789/ - PAID IN ADVANCE BY THE APPELLANT AS ALLOWABLE EXPENDITURE DURING THE YEAR, AS PER EXPLANATION 2 TO SECTION 43B OF THE ACT ON TECHNICAL GROUNDS, WHICH IS AGAI NST THE PRINCIPLE OF NATURAL JUSTICE AND PROVISIONS OF LAW. (II) THE LD. CIT(A) OUGHT TO HAVE ALLOWED ENTERTAINMENT DUTY PAID IN ADVANCE BY THE APPELLANT AS RIGHTFUL ALLOWABLE EXPENDITURE FOR THE YEAR AS PER EXPLANATION 2 TO SECTION 43B OF THE ACT. ITA NO. 6724 /1 3 2 2. BRIE F FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF OWNING AND OPERATING AMUSEMENT PARK AND RELATED SERVICES, ESSEL WORLD/WATER KINGDOM MUMBAI, TRADING IN GOODS AND MERCHANDISE AND PROJECT CONSULTANCY SERVICES TO AMUSEMENT PARK AND WATE R PARKS. THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.5,07,41,950/ - ON 30 - 9 - 2009, WHICH WAS PROCESSED U/S.143(1) AND NOTICE OF THE SAME WAS ISSUED TO THE ASSESSEE U/S.143(2). DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF PURCHASES, SUNDRY CREDITORS, AMOUNT CREDITED IN CAPITAL RESERVE, UNSECURED LOAN CONFIRMATIONS, EXPENSES SUCH AS COMMISSION, LEGAL & PROFESSIONAL EXPENSES AND OTHER MAJOR EXPENSES ETC, WHICH WERE ALLEGEDLY VERIFIED BY TH E AO. HOWEVER, THE AO PASSED THE ASSESSMENT ORDER AFTER ASSESS ING THE INCOME OF THE ASSESSEE AT RS.5,07,41,950/ - IN THE ORDER DATED 26 - 12 - 2011, AGAINST WHICH THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) . 4. LD. AR BEFORE US CONTENDED THAT THE NEITHER THE A O NOR THE CIT(A) HAS TAKEN INTO CONSIDERATION THE ENTERTAINMENT DUTY PAID BY THE ASSESSEE. THE LD. AR FURTHER SUBMITTED THAT WITHOUT DISCUSSING ANYTHING THE AO PASSED THE ASSESSMENT ORDER AND THE CIT(A) OUGHT TO HAVE CONSIDERED THE FACT THAT THE AO HAS NOT GIVEN ANY REASONING OR THE CIT(A) HAS NOT GIVEN REASONABLE OPPORTUNITY WHILE PASSING THE ORDER IMPUGNED IN THE PRESENT APPEAL . 5. OUR ATTENTION IS BROUGHT TO PARA 4 OF THE CIT(A)S ORDER. THE CIT(A) WHILE DISPOSING THE APPEAL OBSERVED AS FOLLOWS : - ITA NO. 6724 /1 3 3 DESPI TE AVAILING MORE THAN 2 WEEKS TIME, THERE IS NO RESPONSE FROM THE APPELLANT AND HENCE I SEE NO REASON TO ADJUDICATE THE GROUND OF APPEAL TAKEN, AS REPRODUCED ABOVE IN PARA 2 . FROM THE FINDINGS OF THE CIT(A), IT IS CLEAR THAT NO ADJUDICATION ORDER HAS BE EN PASSED BY THE CIT(A) IN THE ORDER IMPUGNED BEFORE US. 6. LD. A R ARGUED BEFORE US THAT NO REASON AND FAIR OPPORTUNITY WAS GIVEN BY THE CIT(A) AND, THERE WAS NO INORDINATE DELAY IN ATTENDING THE PROCEEDINGS OR GETTING THE PROCEEDINGS DELAYED BEFORE THE CI T(A). 7. WE HAVE NOTICED THAT NO PROPER OPPORTUNITY WAS AFFORDED TO THE ASSESSEE BY CIT(A), HENCE, THE PRESENT APPEAL IS REMANDED BACK TO THE FILE OF CIT(A) FOR FRESH FINDING ON THE MERITS OF THE CASE . THE ASSESSEE IS DIRECTED TO COOPERATE IN THE PROCEEDI NGS BEFORE THE CIT(A). 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 11/0 9 / 201 5 . SD/ - SD/ - ( . . ) ( R.C.SHARMA ) ( ) ( PAWAN SINGH ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED 11 /09 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//