SAMUDRA LINK FERRY SHIPPING AND CRUISE SERVICES PVT LTD., MUMBAI V. ASST.C.I.T. OSD-2(3), MUMBAI

ITA 6928/MUM/2012

• Counselvise Citation: 692819914 RSA 2012
• Duration Of Justice: 2 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 27-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 14-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI A.D.JAIN (JM) AND RAJENDRA (AM) . . , , ./ I.T.A. NO. 6928 / MUM/20 1 2 ( / ASSESSMENT YEAR : 2007 - 08 ) M/S SAMUDRA LINK FERRY SHIPPING AND CRUISE SERVICES PRIVATE LIMITED, 202, SHAKTI SADAN, B WING, PLOT NO.14, KHERNAGAR, BANDRA (E), MUMBAI400051 / VS. THE ASSTT. COMMISSIONER OF INCOME TAX OS D 2(3), AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AAHCS0888E / APPELLANT BY SHRI SANJIV M SHAH / RSPONDENT BY MRS. VIN ITA MENON / DATE OF HEARING : 27. 7 . 201 5 / DATE OF PRONOUNCEMENT : 27. 7. 201 5 / O R D E R PER A D JAIN ( J M) TH IS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2007 - 08, IN WHIC H IT HAS MADE A GRIEVANCE THAT THE LD. CIT(A) DID NOT GRANT SUFFICIENT OPPORTUNITY OF BEING HEARD AND ALSO NOT PROVIDED WITH A COPY OF REMAND REPORT. THE ASSESSEE ALSO URGED AN ISSUE THAT THE LD.CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO IN ASSESSING TOTAL INCOME AT RS.3,34,69,590/ - AS AGAINST THE RETURNED LOSS OF RS.1,29,90,522/ - BY DISALLOWING THE BUSINESS LOSS OF RS.1 ,2 9,90,522/ - CLAIMED BY THE ASSESSEE. ITA NO. 6928 / MUM/20 12 2 2. THE ASSESSEE COMPANY , ENGAGED IN THE BUSINESS OF HANDLING CRUISE SHIP S , FILED ITS E - RETU RN OF INCOME , DECLARING TOTAL INCOME OF RS.1,29,90,522 , ON 31.10.2007 . THE CASE WAS SELECTED FOR SCRUTINY UNDER THE CASS AND IN PURSUANCE THEREOF , A NOTICE U/S 143(2) WAS ISSUE D TO THE ASSESSEE. THEREAFTER , THE AO ALSO CALLED FOR VARIOUS DETAILS FROM TH E ASSESSEE. THE AO OBSERVED FROM THE P&L ACCOUNT , THAT THE ASSESSEE HA D CREDITED ONLY RS.3,11,666 / - UNDER THE HEAD GROSS EARNINGS AND HAD CLAIMED EXPENDITURE OF RS.1,32,59,854/ - UNDER VARIOUS HEADS. DURING THE ASSESSMENT PROCEEDING S , THE ASSESSEE WAS A LSO ASKED TO FURNISH CONFIRMED COPY OF ACCOUNTS WITH PAN IN SUPPORT OF ALL LOANS TAKEN DURING THE YEAR , INCLUDING THE SQUARED UP ACCOUNT. THE AO OBSERVED THAT THE ASSESSEE HAD SHOWN AN OPENING BALANCE OF UNSECURED LOANS OF RS.4,39,80,703/ - AND A CLOSING BALANCE OF UNSECURED LOANS OF RS.5,58,66,215/ - . IT HAS ALSO BEEN OBSERVED FROM THE LEDGE R ACCOUNT THAT THE ASSESSEE HAD RECEIVED A TOTAL AMOUNT OF RS.3,34,69,593/ - AS UNSECURED LOANS DURING THE YEAR AND AGAINST T HE SAID AMOUNT, AN ENTRY WAS PASSED FOR AN AMOUNT OF RS.2,15,84,082/ - WITH THE NARRATION CREDITED TO NCP VESSEL EXPENSES . ON BEING QUERIED THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE LOANS, AND THE IDENTITY AND CREDITWORTHINESS OF THE LENDER. THE AO DID NOT ACCEPT THE EXPLANATION FU RNISHED BY THE ASSESSEE AND ADDED AMOUNT OF RS.3,34,69,593/ - , CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE AS UNSECURED LOAN DURING THE YEAR , T O THE TOTAL INCOME OF THE ASSESSEE AS THE ASSESSEES OWN INCOME FROM UNEXPLAINED SOURCES. 3. WITH REGARD TO THE EXPENSES OF RS.50,000/ - , THE ASSESSEE FURNISHED THE DETAILS. ON VERIFICATION THEREOF, DISSATISFIED WITH THE EXPLANATION FURNISHED BY THE ASSESSEE IN RESPECT OF EXPENDITURE OF RS.1,32,59,854/ - , THE AO REJECTED THE BOOK RESULT S SUBMITTED BY THE ASSESSE E. REGARDING THE REIMBURSEMENT OF RS.3,11,666 / - CREDITED TO THE P AND L ACCOUNT , T HE AO ITA NO. 6928 / MUM/20 12 3 OBSERVED THAT IN THE LEDGE R ACCOUNT, ONLY INTEREST ON BANK DEPOSIT OF RS.2066 / - , RETAINER FEE OF RS.3,09,600/ - WITH THE NARRATION BEING J V PA S SED TOWARDS EXPENSES I NCURRED FOR APRIL TO DECEMBER, 2006 FOR NCP VESSEL STOOD REFLECTED . SINCE NO DETAILS WERE FILED BY THE ASSESSEE IN THIS RESPECT, THE AO REJECTED THE BOOKS OF ACCOUNT. ACCORDINGLY, THE AO DISALLOWED THE ENTIRE CLAIM OF RS.1,29,90,522/ - . 4 . ON APPEAL, BEF ORE THE LD.CIT(A), THE ASSESSEE FILED A PAPER BOOK , WHICH WAS FORWARDED BY THE LD.CIT(A) TO THE AO . THE AO , VIDE LETTER DATED 10.2.2012 , FURNISHED A REPORT BEFORE THE LD. CIT (A) AND A COPY THEREOF , VIDE LETTER DATED 20.2.2012 , WAS FORWARDED TO THE ASSESSE E. THIS WAS RECEIVED BACK IN THE OFFICE OF LD. CIT(A) WITH THE REMARK OF THE POSTAL AUTHORITY : LEFT. HENCE, THE LD. CIT(A) DIRECTED THE AO TO SERVE THE COPY OF THE REMAND REPORT ON THE ASSESSEE . ON INQUIRY , IT WAS FOUND THAT THE ASSESSEE HAD LEFT THE RE SIDENTIAL PREMISES AROUND 3 YEARS BACK AND THE THEN WHEREABOUTS OF THE ASSESSEE WERE NOT KNOWN. THE LD. CIT(A) WAS OF THE OPINION THAT THE ASSESSEE WAS NOT TRACEABLE AND THE REMAND PROCEEDINGS BEFORE AO WERE ATTENDED BY THE AR OF THE ASSESSEE ; AND THAT N EITHER DURING THE ASSESSMENT PROCEEDINGS , NOR IN THE APPELLATE PROCEEDINGS , NOR EVEN IN THE REMAND PROCEEDINGS HAD THE ASSESSEE PRODUCED AN Y IOTA OF EVIDENCE TO SUPPORT THE CLAIM OF THE ASSESSEE. THEREFORE, THE LD.CIT(A) CONFIRMED THE ACTION OF THE AO. A GGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE US. 5 . T HE LD.AR SUBMITTED THAT THE ASSESSEE HA D PRODUCED ALL THE RELEVANT DOCUMENTS WHICH WERE AVAILABLE WITH IT ; THAT THE LOWER AUTHORITIES , WITHOUT APPRECIATING THE FACT S AND EVIDENCES PRODUCED BEFORE THEM , WRONGLY REJECTED THE CLAIM OF THE ASSESSEE AND THAT; T HE AO HA D ALSO REJECTED THE BOOK RESULT S AND BOTH THE AUTHORITIES HA D NOT PASSED REASONED O R DERS ITA NO. 6928 / MUM/20 12 4 WHILE DISMISSING THE CLAIM OF THE ASSESSEE. THE LD. AR ALSO SUBMIT TED THAT NOW, THE ASSESSEE IS IN A POSITION TO PRODUCE ALL THE RELEVANT DOCUMENTS AS CALLED FOR BY THE AO AS WELL AS BY TH E LD.CIT(A). HENCE, THE ASSESSEE BE GIVEN ONE MORE OPPORTUNITY TO SATISFY THE AO. 6 . THE LD. DR DID NOT CONTRADICT THE SUBMISSIONS OF THE LD. AR. 7 . AFTER HEARING BOTH THE PARTIES AND ON GOING THROUGH THE RELEVANT MATERIAL SUBMITTED BY THE ASSESSEE, WE ARE OF THE OPINION THAT, IF THE ASSESSEE IS GIVEN ONE MORE OPPORTUNITY AT THE LEVEL OF AO , NO PREJUDICE WOULD BE CAUSE D TO THE REVENU E. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THIS MATTER TO THE FILE OF THE AO WITH A DIRECTION TO CONSIDER ALL THE MATERIAL AS MAY BE FURNISHED BY THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO - OPERATE WITH THE ASSESSING OFFICE R F OR A SPEEDY DISPOSAL OF THE ISSUE. 8 . RESULTANTLY, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 27TH JULY , 2015. 27 TH JULY , 2015 SD SD ( / RAJENDRA) ( . . , / A.D. JAIN ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: 27TH JULY ,2015 . . . ./ SRL , SR. PS ITA NO. 6928 / MUM/20 12 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / TH E CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI