ITO 19(3)(4), MUMBAI V. SHREEJI AGENCIES, MUMBAI

ITA 749/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2365 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 10-02-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 04-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KISHAN VYAS
• Keywords: Depreciation
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI SHRI A.L. GEHLOT, A.M. & SHRI R.S. PAD VEYAR, J.M. ITA NO. 749/M/2009 ASSESSMENT YEAR: 2005-06 INCOME-TAX OFFICER, APPELLANT 19(3)(4), R.NO. 304, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400 012. VS. M/S SHREEJI AGENCIES, RESPONDENT 62, SUMAN, K.C. MARG, BANDRA RECLAMATION, BANDRA (W), MUMBAI 50. (PAN AADFS9081L) APPELLANT BY : MR. KISHAN VYAS RESPONDENT BY : MR. K. GOPAL ORDER PER A.L. GEHLOT, A.M.: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF CIT(A)-XIX, MUMBAI, PASSED ON 21 ST NOVEMBER, 2008 FOR THE ASSESSMENT YEAR 2005-06 WHEREIN THE REVENUE HAS RAI SED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN HOLDING THAT THE CA SE DOES NOT QUALIFY FOR INVOKING THE PROVISIONS OF SEC. 144 OF THE ACT, IGNORING THE FACT THAT MORE THAN 10 OPPORTUNITIES WERE GIVEN THAT MOST OF THE TIME ADJOURNMENT WAS SOUGHT WHICH WAS DULY GRAN TED BY AO AND THAT THE DETAILS SUBMITTED WERE NOT SUFFICIENT TO ASSESS THE CORRECT INCOME. THE LD. CIT(A) OUGHT TO HAVE DIRECT ED THE ASSESSEE TO PRODUCE EVIDENCES/FURNISH THE DETAILS S OUGHT BY AO. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DIRECTING TO ALLOW DEPRECIATION ON THREE WHEELERS AMOUNTING TO RS. 99,499/- IGNORING T HE FACT THAT ITA NO. 749/MUM/2009 SHREEJI AGENCIES 2 THE ASSESSEE FAILED TO FURNISH EVIDENCE EVEN IN REM AND PROCEEDINGS THAT THE THREE WHEELERS WERE USED FOR B USINESS PURPOSES. 3. . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN RESTRICTING THE DIS ALLOWANCE TO RS. 50,000/- AS AGAINST RS. 2,09,488/- MADE BY THE AO O UT OF VARIOUS EXPENSES AGGREGATING TO RS. 23,93,177/- MER ELY ON THE GROUND THAT THE BOOKS OF THE ASSESSEE ARE SUBJECTED TO AUDIT AND NO ADVERSE REMARKS HAVE BEEN MADE, PARTICULARLY WHE N THE ASSESSEE FAILED TO FURNISH THE DETAILS FOR VERIFICA TION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITI ON OF RS. 15,80,551/- BEING CONTRACT CHARGES RECEIVED FROM M/ S HINDUSTAN LEVER LTD. IGNORING THE FACT THAT THE ASSESSEE FAIL ED TO FURNISH THE DETAILS AND PRODUCE EVIDENCE THAT THE SAID RECEIPTS WERE ACCOUNTED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE DISALL OWANCE OF RS. 7,35,116/- ON ACCOUNT OF REMUNERATION AND INTEREST PAID TO THE PARTNER OF THE ASSESSEE FIRM AS PER PROVISIONS OF S EC. 184(T5), SINCE THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 144 OF THE IT ACT, 1961. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD. WE FIND THAT THE ASSESSEE DID NOT APPEAR BEFORE THE AO, THEREFORE, THE AO MADE THE ASSESSMENT BY MA KING CERTAIN ADDITIONS IN THE TOTAL INCLUDING THE ADDITION U/S 1 84(5) OF THE ACT. THE CIT(A) PARTLY ALLOWED THE ASSESSEES APPEAL WHILE T HE CIT(A) HAS ALSO ALLOWED THE GROUND RELATING TO THE ADDITION BY INVO KING THE PROVISIONS OF SECTION 184(5) OF THE ACT. THE REVENUE IS IN APP EAL AGAINST THE ORDER OF CIT(A) WHERE RELIEF HAS BEEN ALLOWED BY THE CIT( A). 1 ST GROUND OF APPEAL IS THAT THE ASSESSEE DID NOT APPEAR BEFORE T HE AO AND THE CIT(A) OUGHT TO HAVE DIRECTED THE ASSESSEE TO PRODU CE EVIDENCES/FURNISH THE DETAILS SOUGHT BY THE AO. THE CIT(A) DID NOT PROVIDE REASONABLE OPPORTUNITY OF HEARING TO THE AO BEFORE DECIDING THE ISSUES. WE FIND THAT THE AO MADE ASSESSMENT INV OKING PROVISIONS OF SECTION 144 AS THE ASSESSEE DID NOT APPEAR BEFOR E HIM. THE CIT(A) DECIDED THE ISSUE AT HIS LEVEL WITHOUT PROVIDING RE ASONABLE OPPORTUNITY OF HEARING TO THE AO. UNDER THESE CIRCU MSTANCES, WE FIND ITA NO. 749/MUM/2009 SHREEJI AGENCIES 3 IT PROPER TO REMIT THE MATTER BACK TO THE FILE OF T HE AO WITH A DIRECTION TO DECIDE THE ISSUES RAISED IN THE GROUNDS OF APPEA L AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPO RTUNITY OF HEARING TO THE ASSESSEE. IT MAY BE MENTIONED HERE THAT THE ADDITIONS OR DISALLOWANCES, IF ANY, ARE TO BE MADE, DO NOT EXCEE D THE ADDITIONS/DISALLOWANCES MADE IN THE ORIGINAL ASSES SMENT U/S 144. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. PRONOUNCED ON THIS 12 TH DAY OF APRIL, 2010. SD/- SD/- (R.S. PADVEKAR) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED: 12 TH APRIL, 2010. COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, K BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV