M/S. CASCADE HOLDINGS PVT.LTD., MUMBAI V. ACIT, CC 31, MUMBAI

ITA 931/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1264 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-04-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 11-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MORYA
• Assessee Lawyers: H N MOTIWALA
• Keywords: Additional evidence; Set aside
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: MUMBAI BEFORE SHRI D K AGARWAL, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO 931/MUM/2009 (ASSESSMENT YEAR: 2002-03) M/S CASCADE HOLDINGS PVT LTD , 32, MADHULI, 3RD FLOOR, DR ANNIE BESANT ROAD, NEHRU CENTRE, WORLI, MUMBAI -400 018 PAN: AAACC 5768 N VS ACIT, CC -31, MUMBAI APPELLANT RESPONDENT APPELLANT BY: SHRI H N MOTIWALA RESPONDENT BY: SHRI P C MORYA ORDER PER PRAMOD KUMAR 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AND IS D IRECTED AGAINST THE ORDER DATED 28TH NOVEMBER 2008 PASSED BY THE CIT (A) IN THE MAT TER OF ASSESSMENT U/S 144 R W S 147 OF THE INCOME-TAX ACT, 1961 FOR THE ASSESSMEN T YEAR 2002-03. 2. ALTHOUGH THE ASSESSEE HAS RAISED AS MANY AS 14 G ROUNDS OF APPEAL, EFFECTIVELY THE ONLY GRIEVANCE PRESSED BEFORE US WAS THAT THE C IT (A) HAS ERRED IN LAW AND IN FACTS IN DISREGARDING ADDITIONAL EVIDENCES PRODUCED BY THE APPELLANT AND NOT ADMITTING THE SAME UNDER RULE 46A OF THE IT RULES. 3. LEARNED COUNSEL FOR THE ASSESSEE INVITES OUR ATT ENTION TO THE ORDER DATED 4TH FEBRUARY 2010 PASSED BY A CO-ORDINATE BENCH BY WAY OF WHICH, MATERIAL GROUND IDENTICAL FACTS THE MATTER WAS REMITTED BY THE CO-O RDINATE BENCH TO THE FILE OF THE CIT (A) FOR FRESH ADJUDICATION AFTER ADMITTING THE ADDI TIONAL EVIDENCE. ITA 931/M/2009 M/S CASCADE HOLDINGS PVT LTD 2 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT DISPUTE THE FACT THAT THE MATERIAL FACTS OF THESE TWO CASES ARE SIMILAR BUT R ATHER DOUBTFULLY RELIES UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THEN THE VIEW SO TAKEN BY THE CO-ORDINATE BENCH WHEREBY THE MATTER WAS SET ASIDE TO THE FILE OF THE CIT (A) FOR FRESH ADJUDICATION AFTER ADMITTING ADDITIONAL E VIDENCES UNDER RULE 46A. WHILE DOING SO, THE CO-ORDINATE BENCH, INTER ALIA , OBSERVED AS FOLLOWS:- 4. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSES SEE WAS A NOTIFIED PERSON UNDER THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) ACT, 1992. THE ASSESSMENTS IN THE ABOVE APPEALS WERE COMPLETED U/S. 144/147 OF THE INCOME-TAX ACT, 1961 (THE ACT). BEFORE THE CIT (A), THE ASSESSEE HAS POINTED OUT VARIOUS DIFFICULTIES FOR W HICH THE VARIOUS DETAILS INCLUDING BOOKS OF ACCOUNT COULD NOT BE PRODUCED BE FORE THE ASSESSING OFFICER. ACCORDINGLY IT WAS ARGUED THAT THE BOOKS OF ACCOUNT AND OTHER DETAILS WHICH COULD NOT BE FILED BEFORE THE ASSESSING OFFICER SHO ULD BE ADMITTED AS EVIDENCE FOR THE PURPOSE OF COMPUTATION OF INCOME UNDER THE PROVISIONS OF RULE 46A OF THE RULES. HOWEVER, THE CIT (A) DID NOT ACCEPT THOS E ADDITIONAL EVIDENCES. WE FIND THIS BENCH OF THE TRIBUNAL IN ASSESSEES OWN C ASE VIDE I.T.A. NO. 3538/MUM/2009 (WHERE BOTH OF US ARE PARTIES) VIDE O RDER DATED 29TH JANUARY, 2010 FOR THE A.Y. 1998-99 HAS RESTORED THE ISSUE TO THE FILE OF THE CIT (A) WITH A DIRECTION TO ADMIT THE ADDITIONAL EVIDENCES AND D ECIDE THE ISSUES ON MERIT. THE RELEVANT PARA OF THE ORDER OF THE TRIBUNAL READ S AS UNDER: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE B Y BOTH THE SIDES, PERUSED THE ORDERS OF A.O AND CIT (A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US IN THE CASE OF THE SISTER CONCERNS. WE FIND THAT THE LD. CIT (A) DID NOT ACCEPT THE ADDITIONAL EVIDENCES FIL ED BEFORE HIM AND PASSED THE ORDER. WE FIND UNDER IDENTICAL FACTS AND CIRCUMSTANCES THE CO-ORDINATE BENCHES OF THE TRIBUNAL IN THE CASE OF SISTER CONCERNS OF THE ASSESSEE HAVE CONSIDERED THE ISSUE AND HAVE DIRECTE D THE CIT (A) TO ADMIT ADDITIONAL EVIDENCES FILED BEFORE HIM AND DEC IDE THE ISSUE ON MERIT. RESPECTFULLY FOLLOWING THE DECISIONS OF THE CO-ORDINATE BENCHES OF THE TRIBUNAL WE RESTORE THE MATTER TO THE FILE OF T HE CIT (A) WITH DIRECTION TO ADMIT THE ADDITIONAL EVIDENCES FILED B EFORE HIM AND DECIDE THE ISSUE ON MERIT. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATIST ICAL PURPOSES. 5. FOLLOWING OUR OWN DECISION IN ASSESSEES OWN CAS E FOR A.Y. 1998-99, WE RESTORE THE ISSUE TO THE FILE OF THE CIT (A) WITH A DIRECTION TO ADMIT THE ADDITIONAL EVIDENCES FILED BEFORE HIM AND DECIDE AL L THE ISSUES ON MERIT. ITA 931/M/2009 M/S CASCADE HOLDINGS PVT LTD 3 NEEDLESS TO SAY, HE HAS TO GIVE REASONABLE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE AS PER LAW. WE HOLD AND DIRECT ACCORDINGL Y. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICA L PURPOSES. 6. IN VIEW OF THE ABOVE DISCUSSIONS, WE REMIT THE M ATTER TO THE FILE OF THE CIT (A) FOR FRESH ADJUDICATION. AS MATTER HAS BEEN RESTORE D TO THE FILE OF THE CIT (A), OTHER GRIEVANCES RAISED BY THE ASSESSEE DO NOT REQUIRE AN Y ADJUDICATION BY US AT THIS STAGE. THE SAME ARE DISMISSED HAS HAVING BECOME INFRUCTUOU S. 7. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT TODAY ON THE 25 TH DAY OF JUNE 2010. SD/- (D K AGARWAL) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATE: 25TH JUNE 2010 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)- CENTRAL IV, MUMBAI. 4) THE CIT CENTRAL II, MUMBAI. 5) THE D.R. C BENCH, ITAT, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR CHAVAN* I.T.A.T., MUMBAI ITA 931/M/2009 M/S CASCADE HOLDINGS PVT LTD 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 14.06.2010 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 14.06.2010 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS 7 FILE SENT TO THE BENCH CLERK SR.PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER