ITO 24(1) (4), MUMBAI V. CHAITANYA DEVELOPERS, MUMBAI

ITA 9228/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3913 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 22-01-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 31-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A PANT
• Assessee Lawyers: RAHUL K HAKANI; DR K SHIVARAM
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SANJAY GARG, JUDICIAL MEMBER ITA NO. 9228/MUM/2010 ASSESSMENT YEAR: 2007-08 ITO 24(1)(4) 5 TH FLOOR C-13 BLDG. R. NO. 502 PRATYAKSHAKAR BHAVAN BANDRA-KURLA COMPLEX BANDRA (E) MUMBAI 400 051 VS. CHAITANYA DEVELOPERS 604-605, C WING HETAL ARCH OPP NATRAJ MARKET, MALAD (W) MUMBAI 64 PAN:AAFFC 0709 H (APPELLANT) (RESPONDENT) RESPONDENT BY : SHRI R. A PANT RESPONDENT BY : DR.K. SHIVARAM & RAHUL K. HAKANI DATE OF HEARING : 29.07.2013 DATE OF PRONOUNCEMENT : 29.07.2013 O R D E R PER SANJAY GARG, JM: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE A GAINST THE ORDER OF THE LD.CIT(A) -34, MUMBAI DATED 25.10.2010 FOR THE ASSE SSMENT YEAR 2007-08. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE AO DURI NG THE ASSESSMENT PROCEEDINGS MADE DISALLOWANCE RS. 8,75,000/- SHOWN BY THE ASSES SEE AS ADVANCE RECEIVED FROM THE CUSTOMERS. THE AO FURTHER MADE THE DISALLOWANCE OF RS. 85,00,000/- ON ACCOUNT OF UNSECURED LOAN AND THUS ADDED BACK THE SAID SUM INT O THE INCOME OF THE ASSESSEE. 3. IN APPEAL THE LD.CIT(A) DELETED THE SAID DISALLO WANCES MADE BY THE AO, RELYING UPON CERTAIN DOCUMENTS., WHICH WERE ADMITTED AS ADD ITIONAL EVIDENCE BY HIM. 4. THE GRIEVANCE OF THE REVENUE IS THAT THE LD.CIT( A) HAS WRONGLY AND ILLEGALLY ADMITTED THE ADDITIONAL EVIDENCE IN GROSS VIOLATION OF RULES 46(A) OF THE INCOME TAX RULES. WHILE ADMITTING THE SAID EVIDENCE, NO OPPORTUNITY W AS GIVEN TO THE AO TO EXAMINE OR REBUTT THE SAID DOCUMENTS, REFERENCE TO WHICH IS FO UND MENTION IN PARA 3 & 3.1 OF THE IMPUGNED ORDER UNDER APPEAL. ITA NO. 9228/MUM/2010 CHAITANYA DEVELOPERS ASSESSMENT YEAR: 2007-08 2 5. THE LD. AR HAS BEEN FAIR ENOUGH TO ADMIT THAT NO OPPORTUNITY WAS GRANTED BY THE LD.CIT(A) TO AO TO EXAMINE, VERIFY OR REBUT THE SAI D ADDITIONAL EVIDENCES. IN VIEW OF THE ABOVE CIRCUMSTANCES, THE ACTION OF THE LD.CIT(A) IN ADMITTING THE ADDITIONAL EVIDENCE WITHOUT GIVING ANY NOTICE OR CALLING ANY REMAND FRO M THE AO CANNOT BE SAID TO BE JUSTIFIED. AT THIS STAGE THE LD. AR HAS SUBMITTED T HAT INSTEAD OF REMANDING BACK THE CASE TO THE LD.CIT(A), THE CASE FILE BE REMANDED BACK TO THE LD. AO BEFORE WHOM THE ASSESSEE WILL PRODUCE NECESSARY EVIDENCES AS NO USEFUL PURPO SE WILL BE SERVED BY REMANDING THE BACK TO THE LD.CIT(A), WHO IN TURN WILL HAVE TO SEN D THE CASE FILE BACK TO THE AO. IN VIEW OF THE SUBMISSION MADE BY THE LD. AR, WE ACCORDINGL Y SET ASIDE ORDER UNDER APPEAL AND REMAND THE CASE TO THE FILE OF THE AO FOR A FRESH A SSESSMENT. NEEDLESS TO SAY THAT THE AO WILL AFFORD PROPER OPPORTUNITY TO THE ASSESSEE TO P RESENT ITS CASE AND THE EVIDENCES, IF ANY, THEREAFTER TO PASS A SPEAKING ORDER IN ACCORDA NCE WITH LAW. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF JULY, 2013. SD/- SD/- (RAJENDRA SINGH) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 29.07.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.