METAL ROOFING CONTRACTORS (INDIA) P.LTD, MUMBAI V. DCIT 9(2), MUMBAI

ITA 842/MUM/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3831 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 31-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R. K. GUPTA , JM ITA NO. 84 2 / MUM/ 20 1 3 ( ASSESSMENT YEAR : 200 9 - 20 10 ) M/S METAL ROOFING CONTRACTORS (INDIA) PVT. LTD., B - 1/1, MAYUR MA KRUPA CHSL, SHIMPOLI ROAD, BORIVALI (W), MUMBA - 400 092 VS. DCIT - 9(2) , MUMBAI - 20 . PAN/GIR NO. : A A DCM 3036 A ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : NONE /REVENUE BY : SMT. JOTHILAKSHMI NAYAK DATE OF HEARING : 4 TH APRIL , 201 3 DATE OF PRONOUNCEMENT : 10 TH APRIL , 2 013 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 18 - 10 - 2012 OF LEANED CIT(A) - 2 0 , MUMBAI RELA TING TO THE ASSESSMENT YEAR 200 9 - 10 . 2 . THE ASSESSEE IN ITS APPEAL IS OBJECTING IN CONFIRMING THE ADDITION OF RS. 4,71,260/ - UNDER S ECTION 41(1) OF THE ACT. 3 . THE AO BY OBSERVING THAT LIABILITY IS GIVING FROM THE LAST SO MANY YEARS, WHICH IS REMAINED UNPAID AT THE END OF THE ASSESSEE. ACCORDINGLY, HE BROUGHT THE AMOUNT OF LIABILITY AT RS. 4,71,260/ - TO TAX IN VIEW OF THE PROVISION OF SECTION 41(1) OF THE ACT. ITA NO. 84 2 /20 1 3 2 4 . THE CIT(A) ALSO CONFIRMED THE ACTION OF THE A O . DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS. SUGAULI SUGAR WORKS PVT. LTD., REPORTED IN (1999) 236 ITR 518 (SC) WAS NOT FOUND APPLICABLE ON THE FACTS OF THE CASE BY THE LEARNED CIT(A) . NOW, THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 5 . NONE APPEARED ON BEHALF OF THE ASSESSEE INSTEAD OF SERVICE OF NOTICE THROUGH REGISTERED AD POST. ON THE OTHER HAND, LEARNED DR PLACED RELIANCE ON THE ORDER OF LEARNED CIT(A ). 6 . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD , I AM OF THE VIEW THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE AO TO EXAMINE THE FACTS OF THE CASE ONCE AGAIN. NOWHERE IT IS BORNE OUT FROM THE ORDER OF THE AO THAT THE AO HAS MADE ENQUIRY FROM THE PARTY THAT WHOSE ACCOUNTS LIABILITY HAS BEEN SHOWN. DUE TO SOME REASONS, CONFIRMATION FROM THAT PARTY COULD NOT BE FILED BY THE ASSESSEE, DOES NOT CEASE TO EXIST. THERE IS ALSO NO DISPUTE THAT THE LIABILITY WAS GENUINE AS IN THE YEA R OF LIABILITY ARISEN, HAS BEEN ALLOWED BY THE DEPARTMENT ITSELF. HAVING ONUS LIES UPON THE DEPARTMENT TO PROVE THAT LIABILITY SHOWN BY THE ASSESSEE HAS BEEN CEASED TO EXI S T , T HEREFORE, TO MEET THE END OF JUSTICE, I SET ASIDE THE ISSUE TO THE FILE OF THE A O TO EXAMINE THE CASE AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND AFTER MAKING DIRECT ENQUIRY FROM THE PARTY ON WHOSE ACCOUNT LIABILITY HAS BEEN SHOWN IN THE ACCOUNT OF THE ASSESSEE. I ORDER ACCORDINGLY. ITA NO. 84 2 /20 1 3 3 7 . IN THE RESU LT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF APR.2013 201 3 SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI ; DATED : 10 /04/2013 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY O RDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI