DCIT 5(2), MUMBAI V. PROLIFIC CRDITS & CAPITAL P. LTD, MUMBAI

ITA 8329/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75264 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 30-12-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 01-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOURYA PRATAP
• Assessee Lawyers: S V JOSHI
• Keywords: Opportunity of being heard; Rule of consistency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ./I.T.A. NO. 8329/M/2010 (AY: 2001 - 2002 ) DCIT - 5(2), R.NO.571, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. / VS. PROLIFIC CR E DITS & CAPITAL P. LTD., KEJREIWAL HOUSE, 7 N GAMADIA ROAD, MUMBAI 400 026 . ./ PAN : AAACP 3204 C ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MOURYA PRATAP, DR / RESPONDENT BY : SHRI S.V. JOSHI, AR / DATE OF HEARING : 30.12.2013 / DATE OF PRONOUNCEMENT : 08.01.201 4 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 1.12.2010 IS AGAINST THE ORDER OF CIT (A) - 9, MUMBAI DATED 21.9.2010 FOR THE ASSESSMENT YEAR 2001 - 2002. 2. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING SOLITARY GROUND WHICH READ AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS. 10,29,711/ - ON ACCOUNT OF EXPENSES CLAIMED WITHOUT APPRECIATING THE FACT THAT THESE EXPENSES DO NOT HAVE DIRECT NEXUS TO THE INCOME EARNED. 3. THE SOLITARY ISSUE INVOLVE IN THIS APPEAL RELATES TO THE DELETION OF ADDITION OF RS. 10,29,711/ - MADE BY THE AO ON ACCOUNT OF EXPENSES CLAIMED BY THE ASSESSEE AS DEDUCTION AGAINST INCOME FROM OTHER SOURCES. AT THE OUTSET, REFERRING TO THE ABOVE MENTIONED GROU ND RAISED BY THE REVENUE, SHRI MOURYA PRATAP, LD DR MENTIONED THAT SIMILAR ISSUE WAS RAISED BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE VIDE ITA NO. 7708/M/2010 (AY: 2000 - 2001) AND ITA NO.7122/M/2010 (AY: 2004 - 2005), DATED 13.12.2013, WHEREIN THE ITAT RESTO RED THE MATTER TO THE FILES OF THE CIT (A) FOR ADJUDICATING THE ISSUE AFRESH. IN THIS REGARD, LD DR READ OUT THE RELEVANT PARA 6 OF THE OTHER OF THE IT AT (SUPRA). 2 4. ON THE OTHER HAND, SHRI S.V. JOSHI, LD COUNSEL FOR THE ASSESSEE, HEAVILY RELIED ON THE ORDER OF THE CIT (A) AND REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED ORDER OF THE ITAT (SUPRA). ON PERUSAL OF THE ORDER OF THE ITAT, MUMBAI, WE FIND THAT THE ISSUE RAISED AND ADJUDICATED IS EXACTLY SIMILAR TO THAT OF THE ISSUE RAISED IN THE INSTANT APPEAL AND PARA 6 OF THE SAID ORDER OF THE TRIBUNAL IS RELEVANT HERE. RELEVANT PARA 6 IS READS AS UNDER. 6. WE HAVE HEARD THE ARGUMENTS O F BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE ISSUE RELATING TO DISALLOWANCE OF OTHER EXPENSES TO THE FILE OF THE LD CIT (A), SPECIFIC DIRECTION WAS GIVEN BY THE TRIBUNAL TO THE LD CIT (A) TO EXAMINE THE NATURE OF RELEVANT EXPENSES AND TO SEE WHETHER OR NOT SUCH EXPENSES WERE FALLING UNDER SPECIFIC CLAUSE OF SECTION 57 A DIRECTION WAS ALSO GIVEN BY THE TRIBUNAL TO THE LD CIT (A) TO DECIDE INDIVIDUALLY THE DEDUCTIBILITY OR OTHERWISE ALL THE EXPENSES CLAIMED BY TH E ASSESSEE U/S 57 BY WAY OF SPECIFIC ORDER. THESE DIRECTIONS ARE SPECIFICALLY GIVEN BY THE TRIBUNAL TO THE LD CIT (A) AFTER TAKING NOTE OF ALL THE FACT THAT THE CLAIM OF THE ASSESSE WAS EARLIER GRANTED BY HIM IN SKETCHY MANNER WITHOUT GOING INTO DETAILS A ND NATURE OF THE RELEVANT EXPENSES. IT WAS ALSO OBSERVED BY THE TRIBUNAL THAT IT WAS INCUMBENT UPON HIM TO PASS REASONED ORDER MORE SPECIFICALLY WHEN HE WAS OVERTURNING THE FINDINGS OF THE ASSESSING OFFICER OF THE IMPUGNED ORDER PASSED BY THE CIT (A) HO WEVER SHOWS THAT HE HAS NOT FOLLOWED THE DIRECTIONS SPECIFICALLY GIVEN BY THE TRIBUNAL AND HAS GONE REPEATED THE SAME MISTAKE BY ACCEPTING THE CLAIM OF THE ASSESSEE IN SKETCHY MANNER WITHOUT GOING INTO DETAILS AND NATURE OF THE RELEVANT EXPENSES AND WITHOU T DECIDING INDIVIDUALLY THE DEDUCTIBILITY OR OTHERWISE OF SUCH EXPENSES U/S 57. WHILE DEPLORING THIS APPROACH AND ATTITUDE OF THE LD CIT (A), WE RESTRAINED OURSELVES FROM MAKING FURTHER COMMEND AND RESTORE THE MATTER AGAIN TO THE LD CIT (A) WITH THE HOPE THAT HE WILL DECIDE SAME AFRESH FOLLOWING THE DIRECTION GIVEN BY THE TRIBUNAL VIDE ITS ORDER DATED 16/10/2013 FOR A LETTER AND SPIRIT OF THE LAW. 6. CONSIDERING THE ABOVE SETTLED POSITION OF THE ISSUE AND FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE OF THE OPINION THAT THE MATTER SHOULD BE RESTORED TO THE FILES OF THE CIT (A) WITH IDENTICAL DIRECTIONS AS GIVEN BY THE TRIBUNAL (SUPRA) FOR ADJUDICATING THE ISSUE AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, T HE SOLITARY GROUND RAISED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08.01.2014. SD/ - SD/ - (DR. S.T.M. PAVALAN) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 08.01.2014. 3 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI