VIPINCHANDR AGGARWAL HUF, V. ITO 22(2)-(2),

MA 421/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6199 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2004-2005
• Appeal Filed On: 01-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F : MUMBAI BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER MA. NO. 421/MUM/2010 ARISING OUT OF ITA. NO. 1375/MUM/2008 ASSESSMENT YEAR 2004-2005 VIPINCHANDER AGGARWAL HUF MUMBAI 400 074 PAN AAAHV1833Q VS. THE ITO 22 (2) -2 VASHI, NAVI MUMBAI. (APPLICANT (RESPONDENT) FOR APPLICANT : SHRI VISHWAS MAHENDALE FOR RESPONDENT : SHRI JVD. LANGSTIEH ORDER PER D. MANMOHAN, V.P. 1. THE ITAT F BENCH, MUMBAI, BY A COMMON ORDER D ATED 25/05/2009, DISPOSED OF THE APPEALS OF THE ASSESSEE FOR THE ASSESSMENT YEARS 2003-2004 AND 2004-2005, ALONG WIT H THE APPEAL OF M/S. FLAMINGO OVERSEAS FOR THE ASSESSMENT YEAR 2003 -2004, WHEREIN GROUND NO. 5 OF THE ASSESSEES APPEAL FOR THE ASSES SMENT YEAR 2004- 2005 WAS DISMISSED BY OBSERVING AS UNDER : HOWEVER, AS REGARDS SALES RETURN OF RS.5,07,426/-, TREATED AS UNPROVED LOSS BY THE ASSESSING OFFICER, WHICH WAS CONFIRMED BY THE LEARNED CIT(A), NOTHING HAS BE EN BROUGHT ON RECORD BY THE LEARNED COUNSEL FOR THE AS SESSEE TO SHOW THAT ANY EVIDENCE FOR SUCH SALES RETURNS WE RE PLACED BEFORE THE ASSESSING OFFICER. THEREFORE, THI S DISALLOWANCE OF SALES RETURN STANDS CONFIRMED. 2. GROUND NO.5 IN THE APPEAL FILED BY THE ASSESSEE READS AS UNDER : 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE COMMISSIONER OF INCOME TAX-APPEALS - XXII, MUMBAI ERRED IN CONFIRMING THE LEARNED ASSESS ING OFFICERS ACTION OF TREATING THE SALES RETURN OF RS.5,07,426/- AS UNPROVED LOSS. 3. ACCORDING TO THE ASSESSEE, THE ORDER PASSED BY THE ITAT SUFFERS FROM A MISTAKE APPARENT FROM RECORD INASMUC H AS THERE WAS NO DISCUSSION VIS--VIS GROUND NO.5 AT THE TIME OF HEARING OF THE APPEAL AND APPEAL WAS TREATED AS HEARD MAINLY ON TH E GROUND THAT THE MAIN ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE AND THUS THERE WAS NO OCCASION FOR THE ASSESSEES COUNSEL TO ADDRESS ON T HE ISSUE ARISING OUT OF GROUND NO.5. 4. IT MAY BE NOTICED THAT THE M.A. FILED BY THE AS SESSEE HAS NOT FOCUSED THE ISSUE CORRECTLY, BEING LOADED WITH UNNECESSARY FACTS AND THUS LEARNED COUNSEL, APPEARING ON BEHALF OF TH E ASSESSEE, SUBMITTED AT THE TIME OF HEARING THAT THIS GROUND S HOULD EITHER BE TREATED AS COVERED IN FAVOUR OF THE ASSESSEE OR IT SHOULD BE RECONSIDERED FOR FRESH HEARING SINCE NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE AT THE TIME OF DISPOSAL OF THE APPEAL. 5. LEARNED DR VIDE HIS LETTER DATED 4-3-2011 HAS N OT RAISED ANY OBJECTION IN THIS REGARD. WE HAVE ALSO PERUSED THE LOG BOOK. IT IS NOT CLEARLY INDICATED AS TO WHETHER THIS ISSUE WAS SPECIFICALLY ADDRESSED OR NOT. THEREFORE, IN THE INTEREST OF SUB STANTIAL JUSTICE, WE DIRECT THE REGISTRY TO RECALL ITA. NO.1375/MUM/2008 FOR THE LIMITED PURPOSE OF DISPOSING OF GROUND NO.5 RAISED BEFORE U S. REGISTRY IS ALSO DIRECTED TO FIX THE APPEAL FOR HEARING ON THAT ISSU E ON 18-5-2011. SINCE THE DATE IS ANNOUNCED IN THE OPEN COURT, ISSU ING NOTICE TO RESPECTIVE PARTIES IS DISPENSED WITH. 3 MA. NO. 421/MUM/2010 ARISING OUT OF ITA. NO. 1375/MUM/2008 M/S. VIPINCHANDER AGGARWAL (HUF) 6. IN THE RESULT, AS PRONOUNCED IN THE OPEN COURT, M.A. OF THE ASSESSEE IS TREATED AS ALLOWED. SD/- SD/- (RAJENDRA SINGH) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 04 TH MARCH, 2011 VBP/- COPY TO 1. VIPINCHANDER AGGARWAL HUF, 32, DIVYA SWAPNA CHS DR.C.G. ROAD, CHEMBUR, MUMBAI 400 074 PAN AAAHV1833Q 2. THE I.T.O. 22 (2) (2), VASHI, NAVI MUMBAI 3. CIT(A)-XXII, MUMBAI 4. CIT-XXII, MUMBAI 5. DR F BENCH 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.