ARS SYSTEMS AND COMMUMNICATION LTD, MUMBAI V. ACIT 9(1), MUMBAI

ITA 956/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1096 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 12-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Assessee Lawyers: SANJAY R PARIKH
• Keywords: Additional evidence; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI. BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER I.T.A. NO. 956/MUM/2009 ASSESSMENT YEAR : 2005-06. ARS SYSTEMS & COMMUNICATION LTD., ASS TT. COMMISSIONER OF 102, SUNIL APARTMENT, TALMIKI ROAD, VS. I NCOME TAX-9(1), MEERA BAUG, SANTACRUZ (W), MUMBAI. MUMBAI 400054. PAN AAACA9352Q APPELLANT. RESPONDENT APPELLANT BY : SHRI SANJAY R. PARIKH. RESPONDENT BY : SHRI LALCHAND. O R D E R PER J. SUDHAKAR REDDY, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE CIT (APPEALS)-IX, MUMBAI DATED 27-11-2 008 FOR THE ASSESSMENT YEAR 2005-06. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FIRST APPELLATE AUTHORITY HAS NOT ADMITTED ADDITIONAL EVI DENCE, THOUGH THE ASSESSEE HAS SHOWN SUFFICIENT REASON FOR NOT BEING ABLE TO PRODUCE THESE EVIDENCES BEFORE THE AO. HE SUBMITTED THAT THE AO H AS PASSED AN ORDER WITHOUT GIVING PROPER OPPORTUNITY AND THAT THE ASSE SSEE DUE TO THE REASON THAT HE WAS NOT PRESENT IN THE COUNTRY AND ALSO DUE TO THE REASON THAT, HE HAD BECOME INDEBTED TO BANKS AND OTHERS AND CONSEQU ENTLY WAS IN FINANCIAL STRESS; HE COULD NOT SUBMIT THE NECESSARY EVIDENCES BEFORE THE 2 AO. HE FILED A PAPER BOOK RUNNING INTO 259 PAGES AND SPECIFICALLY DREW OUR ATTENTION TO PAGE 113 ONWARDS TO DEMONSTRA TE THAT HE WAS UNDER GRATE FINANCIAL STRESS AND THAT HE PLEADED BEFORE T HE CIT(APPEALS), EXCEPTIONAL CIRCUMSTANCES THAT LEAD TO FILING OF A DDITIONAL EVIDENCE. HE PRAYED THAT THE ISSUE BE SET ASIDE TO THE FILE OF T HE AO. 3. THE LEARNED DR, ON THE OTHER HAND, THOUGH NOT L EAVING HIS GROUND, ULTIMATELY SUBMITTED THAT THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE AO. 4. RIVAL CONTENTIONS HEARD. ON A CAREFUL CONSIDERA TION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND ON A PERUSA L OF THE PAPERS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE, FROM ATTENDING B EFORE THE AO DURING ASSESSMENT PROCEEDINGS. FOR CERTAIN PERIOD HE WAS O UTSIDE THE COUNTRY AND TRIED TO BE RECOVER DEBTS. HE HAD OBTAINED LOAN S FROM BANK AND AS HE HAD DEFAULTED, THE ACCOUNTS WERE TREATED AS NON PER FORMING ASSETS AND LEGAL PROCEEDINGS WERE INITIATED AGAINST THE ASSESS EE BY ORIENTAL BANK OF COMMERCE. THE FIRST APPELLATE AUTHORITY, IN OUR CON SIDERED OPINION, SHOULD HAVE ADMITTED THESE ADDITIONAL EVIDENCES AS THE ASSESSEE HAS DEMONSTRATED EXCEPTIONAL CIRCUMSTANCES AND THEREAFT ER HE SHOULD HAVE CALL FOR THE REMAND REPORT FROM THE AO. ALL THESE EVIDENCES GO TO THE ROUTE OF THE MATTER, IN ASSESSING THE INCOME OF THE ASSESSEE. IN VIEW OF THE ABOVE DISCUSSION, WE SET ASIDE THE ISSUE TO THE AO FOR FRESH ADJUDICATION. THE AO SHALL EXAMINE ALL THE EVIDENCES THAT THE ASS ESSEE MAY SEEK TO FILE IN SUPPORT OF HIS CASE. THE ASSESSEE SHALL ALSO COO PERATE WITH THE ASSESSING AUTHORITIES IN THIS MATTER. 3 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 16 TH DAY OF JULY, 2010. SD. SD. (D.K. AGARWAL) (J. SUDHAKAR REDDY) JUDICIAL MEMBER. ACCOUNTANT MEMBER. MUMBAI, DATED : 16 TH JULY, 2010. WAKODE COPY FORWARDED TO : 1. APPELLANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, A-BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, I TAT, MUMBAI BENCHES, MUMBAI.