TIP TOP HEALTH FOODS P. LTD, MUMBAI V. ITO 10(2)(4), MUMBAI

ITA 8029/MUM/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92451 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 13-04-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 22-11-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: JITENDRA SINGH
• Keywords: Reopening of assessment; Period of limitation; Time period of passing order
• Section: 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO.8029/MUM/2010 ASSESSMENT YEAR: 2002-03 TIP TOP HEALTH FOODS PVT. LTD. MAHAVIR BHUVAN BUNGALOW, R.B. MEHTA MARG, 60 FEET ROAD, GHATKOPRA (EAST) MUMBAI-400086 / VS. ITO-10(2)(4), MUMBAI ( !'# $ /ASSESSEE) ( % / REVENUE) P.A. NO. AAACT7617B !'# $ / ASSESSEE BY SHRI JITENDRA SINGH % / REVENUE BY SMT. N.V. NADKARNI-DR & % ' $ ( / DATE OF HEARING 13/04/2015 ' $ ( / DATE OF ORDER: 24/04/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 18/08/2010 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE FIRST GROUND PERTAINS TO CHALLENGING TIP TOP HEALTH FOODS PVT. LTD. 2 REOPENING OF ASSESSMENT U/S 148 OF THE INCOME TAX A CT, 1961, (HEREINAFTER THE ACT) ON THE GROUND THAT PROC EEDINGS INITIATED U/S148(1) OF THE ACT DATED 23/03/2009 IS BEYOND THE PRESCRIBED LIMITATION PERIOD OF FOUR YEARS. HO WEVER, THE LD. COUNSEL FOR THE ASSESSEE, SHRI JEETENDRA SI NGH, DID NOT PRESS THIS GROUND, CONSEQUENTLY, WITHOUT GOING INTO MUCH DELIBERATION, DISMISSED AS NOT PRESSED. 2. THE NEXT GROUND PERTAINS TO THE DISALLOWANCE OF LOSS OF RS.3,35,623/- WITHOUT APPRECIATING THE FACT THAT THE GOODS WERE DESTROYED IN FIRE ARE OF REVENUE NAT URE AND FURTHER DISALLOWANCE WAS MADE IGNORING THE TRUE FAC TS. THE LD. COUNSEL FOR THE ASSESSEE, ADVANCED HIS ARGU MENTS WHICH ARE IDENTICAL TO THE GROUND RAISED BY FURTHER SUBMITTING THAT THE FACTUM OF LOSS CAUSED BY FIRE I S NOT DISPUTED BY THE REVENUE AS THE REPORT FROM THE FIRE OFFICER IS AVAILABLE ON RECORD. ON THE OTHER HAND, SMT. N.V. NADKARNI, LD. DR, DEFENDED THE CONCLUSION ARRI VED AT IN THE IMPUGNED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE CLAIMED LOSS OF RS.3,3 5,634/- DUE TO FIRE AS THE PACKING MATERIAL AND FIXED ASSET S ETC WERE DESTROYED. THE LD. ASSESSING OFFICER DID NOT F IND FAVOUR WITH THE CLAIM OF THE ASSESSEE AND ADDED BAC K THE CLAIMED LOSS. ON APPEAL, THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) FOUND THAT THE ASSESSEE CONDUCTED ITS BUSINESS ACTIVITY AT GANESH NAGAR AND WAS GETTING I TS ITEM TIP TOP HEALTH FOODS PVT. LTD. 3 MANUFACTURED FROM THE RENT PREMISES LOCATED AT VORA APARTMENTS WHICH BELONGED TO M/S TIP TOP FARSAN SWE ETS AND SNACKS, A PROPRIETARY CONCERN OF SHRI UMESH KHE TIA, DIRECTOR OF THE ASSESSEE COMPANY. THE SAID CONCERN STOPPED ITS BUSINESS ACTIVITY SINCE 1999 AND THE MACHINERY/PREMISES WAS GIVEN TO THE ASSESSEE ON REN T. IN THE ABSENCE OF ANY AGREEMENT WITH M/S TIP TOP FARSA N WAS PRODUCED BY THE ASSESSEE WITH RESPECT TO AGREEM ENT FOR STOCK/MACHINERY WHICH WAS CLAIMED TO BE LOSS IN FIRE. IN VIEW OF THESE FACTS, THE STAND OF THE LD. ASSESS ING OFFICER WAS AFFIRMED, AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. KEEPING IN VI EW, THE TOTALITY OF FACTS AND THE REPORT OF THE FIRE OFFICE R, WE NOTE THAT THE ASSESSEE GOT COMPENSATION TO THE EXTENT OF RS.2,64,289/-, THEREFORE, THE STAND OF THE REVENUE IS AFFIRMED TO THE EXTENT OF RS.71,334/- (RS.3,35,623- 2,64,289), THUS, THIS GROUND OF THE ASSESSEE IS PAR TLY ALLOWED. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE OF BOTH SIDES, AT TH E CONCLUSION OF HEARING ON 24/04/2015. SD/- SD/- ( B.R.BASKARAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & MUMBAI; ) DATED : 24/04/2015 F{X~{T? P.S/. . . TIP TOP HEALTH FOODS PVT. LTD. 4 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. & 0$ ( *+ ) / THE CIT, MUMBAI. P4. & 0$ / CIT(A)- , MUMBAI 5. 2%3 .$! , *+( *! 4 , & / DR, ITAT, MUMBAI 6. 5' 6 / GUARD FILE. / BY ORDER, /2+$ .$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , & / ITAT, MUMBAI