DILIP SITARAM BHAMARE, THANE V. ASST CIT CIR 3, KALYAN

ITA 7233/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7937 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 31-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 04-12-2014
• Court: TRIBUNAL
• Department Lawyers: PURUSHOTTAM KUMARDR
• Keywords: Opportunity of being heard

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.7233/MUM/2014 ASSESSMENT YEAR: 2010-11 DILIP SITARAM BHAMARE, W-76, MIDC, PHASE-II, DOMBIVLI (EAST), DIST- THANE-421204 / VS. ACIT, CIRCLE-3, RANI MANSION, MURBAD ROAD, KALYAN(W)-421301 ( '# $ /ASS ESSEE) ( ) / REVENUE) P.A. NO. AATPB4964D '# $ / ASSESSEE BY SHRI JITENDRA JAIN ) / REVENUE BY SHRI PURUSHOTTAM KUMAR-DR * )+ , $ - / DATE OF HEARING : 23/03/2017 , $ - / DATE OF ORDER: 30/03/2017 DILIP SITARAM BHAMARE ITA NO.7233/MUM/2014 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 11/08/2014 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS.1,16,80,421/-, WITHOUT CONSIDERING THE EVIDENCE ON RECORD FOR TECHNICAL SERVICES RENDERED AND PRINCIPL E OF MERCANTILE SYSTEM OF ACCOUNTING/ACCRUAL BASIS. 2. DURING HEARING, SHRI JITENDRA JAIN, LD. COUNSEL FOR THE ASSESSEE, INVITED OUR ATTENTION TO THE LETTER D ATED 03/02/2007, WHEREIN, THE ISSUE INVOLVED RELATES TO TAXABILITY OF THE AMOUNT OF RS.1,16,80.421/- OUT OF THE COMPOS ITE AMOUNT OF RS.4,05,00,000/- RECEIVED FROM SITSON IND IA PVT. LTD. DURING ASSESSMENT YEAR 2010-11. IT WAS EXPLAI NED THAT THE SAID AMOUNT WAS DISALLOWED IN THE HANDS OF SITS ON INDIA PVT. LTD. ON THE GROUND THAT THE ASSESSEE HAS NOT O FFERED THE WHOLE COMPOSITE AMOUNT OF RS.4,05,00,000/- FOR TAXA TION IN THE SAME ASSESSMENT YEAR I.E. 2010-11 BUT PARTLY S PREAD IN SUBSEQUENT ASSESSMENT YEAR. THE SPREAD WAS CLAIMED TO BE PURELY BASED UPON THE AFTER SALE SERVICES RENDERED DURING THE EXTENDED WARRANTY PERIOD OF THE BOILERS AND EQU IPMENT SUPPLIED TO VARIOUS PARTIES ALTHOUGH BOTH THE ASSES SEES WERE BEING TAXED AT THE SAME TAX RATE IN THE CURREN T AND EACH OF THE SUBSEQUENT YEARS. THE CRUX OF THE ARGU MENT IS THAT THE FACTS WERE NOT PROPERLY APPRECIATED. THE L D. DR, SHRI PURUSHOTTAM KUMAR, THOUGH DEFENDED THE ADDITIO N BUT DILIP SITARAM BHAMARE ITA NO.7233/MUM/2014 3 ARGUED THAT IF ANY DECISION IS TO BE TAKEN THEN THE SITUATION DEMANDS THAT IT MAY REFERRED BACK TO THE FILE OF TH E LD. COMMISSIONER OF INCOME TAX (APPEAL) SO THAT THE FAC TS MAY BE PROPERTY APPRECIATED. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. CONSIDERI NG THE TOTALITY OF FACTS AND THE CIRCUMSTANCES NARRATED IN THE LETTER DATED 03/02/2017 IN PARA -5, IT HAS BEEN MENTIONED THAT IN THE CASE OF SITSON INDIA PVT. LTD., THE DISALLOWANC ES MADE WERE MERITORIOUSLY DELETED AFTER REFERRING TO AND R ELYING UPON THE SAME PAPER BOOK, WHEREAS, IN THE CASE OF T HE ASSESSEE AT PAGE-8 (PARA-12) IT WAS HELD THAT NO DOCUMENTARY EVIDENCE WAS PRODUCED TO SHOW THAT THE SERVICES WERE RENDERED BY THE ASSESSEE DURING THE W ARRANTY PERIOD. IN THE PAPER BOOK NO.3, THE COPIES OF VARIO US TECHNICAL REPORT, JOINT MEETING MINUTES WITH CUSTOMERS/PARTIES ETC DEMONSTRATING THAT ACTUAL TEC HNICAL SERVICES WERE RENDERED DURING THE EXTENDED WARRANTY PERIOD. IN VIEW OF THIS FACT/EXPLANATION, WE ARE OF THE VIE W THAT THE PRESENT CASE OF THE ASSESSEE REQUIRED FRESH EXAMINA TION BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL), THEREF ORE, WE REMAND THIS APPEAL TO THE FILE OF THE LD. COMMISSIO NER OF INCOME TAX (APPEAL) TO APPRECIATE THE FACTS AFRESH AND DECIDED ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . DILIP SITARAM BHAMARE ITA NO.7233/MUM/2014 4 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 23/03/2017. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER * + MUMBAI; / DATED : 30/03/2017 F{X~{T? P.S / 0) %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. 1234 / THE APPELLANT 2. 534 / THE RESPONDENT. 3. 6 6 * 7$ ( 12 ) / THE CIT, MUMBAI. 4. 6 6 * 7$ / CIT(A)- , MUMBAI 5. 8)9 $ , 6 12- 1 : , * + / DR, ITAT, MUMBAI 6. ' ;+ / GUARD FILE. / BY ORDER, 582$ $ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , * + / ITAT, MUMBAI,