BHARAT BALDEVRAM DIWAN, MUMBAI V. ACIT 19(1), MUMBAI

ITA 8335/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3716 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 25-04-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 09-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, M UMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND N.K.BILLAIYA (AM) . . , . ! !! ! . '#$ '#$ '#$ '#$ , !% !% !% !% ! !! ! & & & & ./I.T.A. NO.8335/M/2011 ( ( / ASSESSMENT YEAR:2008-09) SHREE BHARAT BALDEVRAM DIWAN, 53, KHAR SHALIMAR CHS, 20 TH ROAD, KHAR(W), MUMBAI-400052 / VS. ACIT 19(1), MUMBAI ) !% ./ *+ ./PAN/GIR NO. : ABMPD 8741 Q ( ), / APPELLANT) .. ( -.), / RESPONDENT) ), / ! / APPELLANT BY : SHRI M. SUBRAMANIAN -.), 0 / ! /RESPONDENT BY : SHRI MOHIT JAIN 0 1% / DATE OF HEARING : 25.4.2013 23( 0 1% /DATE OF PRONOUNCEMENT : 25.4.2013 !4 / O R D E R PER B.R.MITTAL, JM: THE ASSESEE HAS FILED THIS APPEAL FOR ASSESSMENT Y EAR 2008-09 AGAINST ORDER DATED 25.10.2011 OF LD CIT(A). 2. IN THE GROUND OF APPEAL, ASSESSEE HAS DISPUTED T HE ORDER OF LD CI(A) IN CONFIRMING DISALLOWANCE OF PURCHASE OF RS.51,963/- FROM M/S. AMAR KHAN TIMBER MART AND RS.2,63,539 FROM M/S. TOP TECH ENGG & CONSTRUC TION. SUBSEQUENTLY, ASSESSEE HAS TAKEN FOLLOWING ADDITIONAL GROUNDS, AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A.O. ERRED IN MAKING A DISALLOWANCE OF AN AMOUNT O F RS.12,350/- OUT OF GENERAL EXPENSES AND THAT TOO WITHOUT ASSIGNING ANY PROPER REASON, WITHOUT APPRECIATING FULLY AND PROPERLY THE FACTS AS WELL AS WITHOUT GIV ING FULL AND PROPER OPPORTUNITY OF BEING HEARD IN THE MATTER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED A.O. ERRED IN MAKING A DISALLOWANCE OF AN AMOUNT OF RS.3 6,805/- OUT OF MOTOR CAR EXPENSES AND THAT TOO WITHOUT ASSIGNING ANY PROPER REASON, WITHOUT APPRECIATING I.T.A. NO.8335/M/2011 ASSESSMENT YEAR:2008-09) 2 FULLY AND PROPERLY THE FACTS AS WELL AS WITHOUT GIV ING FULL AND PROPER OPPORTUNITY OF BEING HEARD IN THE MATTER. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED A.O. ERRED IN MAKING A DISALLOWANCE OF AN AMOUNT OF RS.2 5,132/- OUT OF TELEPHONE AND FAX EXPENSES AND THAT TOO WITHOUT ASSIGNING ANY PROPER REASON, WITHOUT APPRECIATING FULLY AND PROPERLY THE FACTS AS WELL A S WITHOUT GIVING FULL AND PROPER OPPORTUNITY OF BEING HEARD IN THE MATTER. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED A.O. ERRED IN MAKING A DISALLOWANCE OF AN AMOUNT OF RS.9 3,840/- OUT OF TRAVELLING AND CONVEYANCE EXPENSES AND THAT TOO WITHOUT ASSIGNING ANY PROPER REASON, WITHOUT APPRECIATING FULLY AND PROPERLY THE FACTS AS WELL A S WITHOUT GIVING FULL AND PROPER OPPORTUNITY OF BEING HEARD IN THE MATTER. 3. IN RESPECT OF ADDITIONAL GROUNDS, A QUERY WAS RA ISED TO LD A.R. AS TO WHETHER SAID ADDITIONAL GROUNDS WERE TAKEN BEFORE THE FIRST APPE LLATE AUTHORITY AND ARISE OUT OF THE ORDER OF LD CIT(A). LD A.R. FAIRLY CONCEDED THAT S AID GROUNDS WERE NOT TAKEN BEFORE THE FIRST APPELLATE AUTHORITY. HOWEVER, HE SUBMITTED T HAT THE AO MADE ADHOC DISALLOWANCES AND, THEREFORE, SAME ARE NOT JUSTIFIED. 4. IN RESPECT OF ADDITIONAL GROUNDS TAKEN BY THE AS SESSEE, WE HAVE CONSIDERED SUBMISSIONS OF LD A.R. WE OBSERVE THAT AO HAS MADE DISALLOWANCE IN RESPECT OF ABOVE STATED ADDITIONAL GROUNDS AS ASSESSEE COULD NOT FUR NISH REQUISITE DETAILS. FURTHER, SAID ADDITIONAL GROUNDS ARE BASED ON FACTS AND NO QUESTI ON OF LAW IS INVOLVED. SINCE SAID ADDITIONAL GROUNDS DO NOT ARISE OUT OF THE ORDER OF LD CIT(A), WE REJECT ADDITIONAL GROUNDS TAKEN BY THE ASSESSEE. 5. NOW COMING TO THE GROUND OF APPEAL TAKEN BY THE ASSESSEE, RELEVANT FACTS ARE THAT ASSESSEE IS A PROPRIETOR OF M/S. SANTURA HEAVY ENGINEERING AND IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF ENGINEERING GOODS. TH E ASSESSING OFFICER HAS STATED THAT ASSESSEE HAS FAILED TO PRODUCE LEDGER ACCOUNT WITH DETAILS FROM M/S. TOP TECH ENGINEERING & CONSTRUCTION AND, ACCORDINGLY, MADE A N ADDITION OF RS.2,63,539. HE HAS FURTHER STATED THAT IN CASE OF M/S. AMAR KHAN TIMBE R MART, ASSESSEE FAILED TO PRODUCE DETAILS AS REQUIRED VIDE ORDER SHEET NOTING DATED 2 2.11.2010 AND, THEREFORE, ADDED A SUM OF RS.51,963/- TO THE TOTAL INCOME OF THE ASSES SEE. BEING AGGRIEVED, ASSESSEE FILED APPEAL BEFORE LD CIT(A). I.T.A. NO.8335/M/2011 ASSESSMENT YEAR:2008-09) 3 6. ON BEHALF OF ASSESSEE, IT WAS CONTENDED THAT IN RESPECT OF PURCHASES MADE FROM M/S. AMAR KHAN TIMBER MART AMOUNTING TO RS.51,963/- , CONFIRMATION FROM PARTY WAS SENT TO THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF. WITH REGARD TO M/S. TOP TECH ENGINEERING & CONSTRUCTION, IT WAS CONTENDED THAT THE PARTY HAS CLOSED DOWN THEIR BUSINESS AND THE OFFICE WAS A LSO CLOSED. THAT WHEREABOUTS WERE NOT KNOWN TO THEM. IT WAS CONTENDED THAT ABOVE TRA NSACTIONS ARE ACTUAL BUSINESS TRANSACTIONS. HOWEVER, LD CIT(A) HAS STATED THAT A O ISSUED NOTICE U/S.133(6) TO M/S. TOP TECH ENGINEERING & CONSTRUCTION BUT IT RETURNED UNSERVED AND ASSESSEE FAILED TO FILE CONFIRMATION LEDGER AND OTHER EVIDENCES TO PROVE IT S GENUINENESS. SIMILARLY, ASSESSEE FAILED TO PRODUCE DETAILS AS REQUIRED ALONGWITH CON FIRMATION IN CASE OF M/S. AMAR KHAN TIMBER MART. LD CIT(A) HAS STATED THAT ASSESSEE FI LED CONFIRMATION IN CASE OF M/S. AMAR KHAN TIMBER MART DT.25.11.2010, WHICH WAS SENT TO T HE AO, WHICH IS A FRESH EVIDENCE. LD CIT(A) HAS FURTHER STATED THAT NO REASONABLE CAU SE HAS BEEN BROUGHT ON RECORD FOR NON-PRODUCTION OF THIS CONFIRMATION BEFORE THE AO. HE HAS FURTHER STATED THAT REGARDING M/S. TOP TECH ENGINEERING & CONSTRUCTION, HE DOES NOT AGREE WITH THE CONTENTION OF THE ASSESSEE THAT THEY HAVE CLOSED DO WN THEIR OFFICE AND WHEREABOUTS WERE NOT KNOWN AND HENCE, IT IS NOT POSSIBLE TO FUR NISH THEIR CONFIRMATION. LD CIT(A) HAS STATED THAT EVIDENCES WHICH WERE NOT PRODUCED B EFORE THE AO CANNOT BE ADMITTED. ACCORDINGLY, HE HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. HENCE, ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 7. DURING THE COURSE OF HEARING, LD A.R. SUBMITTED THAT ABOVE PURCHASES WERE GENUINE. HE SUBMITTED THAT IF THE MATTER IS RESTOR ED TO THE FILE OF AO, ASSESSEE WILL PRODUCE THE REQUISITE DETAILS TO THE SATISFACTION O F AO. LD D.R. SUBMITTED THAT HE HAS NO OBJECTION IN RESTORING THE MATTER TO THE FILE OF AO . 8. CONSIDERING THE FACTS OF THE CASE AND SUBMISSION S OF LD REPRESENTATIVES OF PARTIES, WE CONSIDER IT PRUDENT TO RESTORE THIS ISS UE TO THE FILE OF AO FOR HIS FRESH CONSIDERATION AFTER GIVING OPPORTUNITY OF HEARING T O THE ASSESSEE AND CONSIDERING SUCH EVIDENCES AS MAY BE PLACED BEFORE HIM AS PER LAW. WE MAY STATE THAT IF THE ASSESSEE FAILS TO PRODUCE THE REQUISITE DETAILS AS MAY BE RE QUIRED BY THE AO, HE WILL DECIDE THE ISSUE ON THE BASIS OF EVIDENCES AVAILABLE BEFORE HI M. HENCE, GROUND OF APPEAL TAKEN BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. I.T.A. NO.8335/M/2011 ASSESSMENT YEAR:2008-09) 4 9. IN THE RESULT, APPEAL IS ALLOWED IN PART FOR STA TISTICAL PURPOSES. 5 16 51 0 70 89!: ! 4 1 ; 0 *1 <# ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH APRIL, 2013 . !4 0 23( %! = > 6 25 TH APRIL, 2013 3 0 ? SD/- SD/- ( . ! . '#$/N.K.BILLAIYA ) ( . . /B.R.MITTAL) !% / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; > DATED 25 / 04/2012 . . ./ PARIDA , SR. PS !4 !4 !4 !4 0 00 0 -1 -1 -1 -1I II I J!I(1 J!I(1 J!I(1 J!I(1 / COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. K ( ) / THE CIT(A)- 4. K / CIT 5. IL? -1 , , / DR, ITAT, MUMBAI 6. ?M N / GUARD FILE. !4 / BY ORDER, .I1 .I1 .I1 .I1 -1 -1-1 -1 //TRUE COPY// < * (ASSTT. REGISTRAR) , / ITAT, MUMBAI