SHREE RAMASHREE CONST. PRIVATE LIMITED , MUMBAI V. INCOME TAX OFFICER WARD 3(3), Thane

ITA 848/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7248 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2013-2014
• Appeal Filed On: 12-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CIRCUMSTANCES OF CASE
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 142(1); 143(1); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 848 /MUM/201 8 ( / ASSESSMENT YEAR: 20 13 - 14 ) SHREE RAMASHREE CONST. PVT. LTD. 405, DEV CORPORA, EASTERN EXPRESS HIGHWAY, THANE (W) - 400601 . / VS. ITO WARD 3(3) ASHAR IT PARK, 6 TH FLOOR, B WING ROOM NO. 8, ROAD NO. 16 - Z, WAGLE INDUSTRIAL ESTATE, THANE (W) - 400605 . ./ ./ PAN/GIR NO. : AAI CS1687C ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 22/ 0 7 / 201 9 / DATE OF PRONOUNCEMENT : 24 /07/ 201 9 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 17 .1 1 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2, THANE [HEREINAFTE R REFERRED TO AS THE CIT(A )] RELEVANT TO THE A.Y. 20 13 - 1 4 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING DISALLOWANCE OF PURCHASES OF RS. 12,45,016/ - . REVENUE BY : SHRI CHAUDHARY ARUN KUMAR SINGH ASSESSEE BY: SHRI RADHA HALBE ITA NO. 848 / M/201 8 A.Y.20 13 - 14 2 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF AMOUNT OF CREDITORS AMOUNTING TO RS.31,35,945/ - CONSIDERING IT TO BE CESSATION OF LIABILITY U/S 41 (1). 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.2,65,95,207/ - UNDER SECTION 68 BEING ADDITION TO LOANS MADE DURING THE YEAR ALLEGING IT TO BE UNEXPLAINED CASH CREDIT. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN SUSTAINING THE AD - HOC DISALLOWANCE OF RS.20,78,882/ - BEING 15% OF THE ENTIRE INDIRECT EXPENSES MERELY ON CONJECTURES AND SURMISES. 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN C ONFIRMING THE ACTION OF THE ASSESSING OFFICER OF COMPLETING THE ASSESSMENT U/S 144 AND MAKING VARIOUS AD - HOC ADDITIONS. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 30 . 09 .20 13 DECLARING TO TAL INCOME TO THE TUNE OF RS. NIL. T HE RETURN WAS PROCESSED U/S 143(1) OF THE I.T. ACT, 1961. THEREAFTER, THE RETURN WAS SELECTED FOR SCRUTINY AND NOTICE S U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE COMPANY IS BUILDER & DEVELOPER. THE ASSESSEE COMPANY FIL ED THE RETURNED INCOME IN SUM OF RS.NIL. THE OTHER FIGURES IN THE BALANCE - SHEET ARE CA PITAL & RESERVES ( - )22,84,096/ - , BORROWINGS RS.24, 31,22,682/ - & CURRENT LIABILITY 28,89,42,295/ - AND ASSETS RS.1,20,02,728/ - , LONG TERM ADVANCES RS.15,41,40,245/ - , WORK IN PROGRESS (WIP) OF RS.35,42,98,609/ - AND OTHER CURRENT ASSETS FOR RS.93,39,298/ - . THE DETAIL ASKED IN PURSUANCE OF NOTICE U/S 142(1) WA S NOT PROPERLY REPLIED. THEREAFTER, THE INCOME OF THE ASSESSEE ITA NO. 848 / M/201 8 A.Y.20 13 - 14 3 WAS ASSESSED IN SUM OF RS. 3,37,48,010/ - AFTER CERTAIN DISALLOWANCE. FEELING AGGRIEVED, T HE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO PARTLY ALLOWED THE CLAIM OF THE ASSESSEE BY VIRTUE OF O RDER DATED 17.11.2017 IN QUESTION . A GGRIEVED BY THIS ORDER , THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE DEPARTMENT AND PERUSED THE RECORD. IN FACT, THE LD. REPRESENTATIVE OF T HE ASSESSEE DID NOT APPEAR BEFORE US. ON APPRAISAL OF THE ORDER PASSED BY THE CIT(A) , WE NOTICED THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW, THEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIFIABLE, HENCE, IS LIABLE TO BE SET ASIDE IN THE INTEREST OF JUSTICE. A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE THE DECIDING THE MATTER OF CONTROVERSY IN A CCORDANCE WITH LAW. 5. FOR THIS PROPOSITION WE PLACE RELIANCE UPON THE FOLLOWING CASE LAWS. ( 1 ) CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM) 302 ( 2 ) CIT VS. S CHENNIAPPA MUDALIAR (1969) 74 ITR 1 (SC) 6. THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A) ON ALL THE ISSUES AND RESTORE THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW ITA NO. 848 / M/201 8 A.Y.20 13 - 14 4 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 24 /07/ 201 9 . SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 24 /07/2019 V IJAY / 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. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI