PUSHPANJALI INVESTMENT ASTROD P. LTD, V. ASST CIT 10(3),

MA 593/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9110 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2007-2008
• Appeal Filed On: 20-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI I BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI P M JAGTAP, AM & SHRI VIJAY PAL RAO, JM MISCELLANEOUS APPLICATION NO. 593/MUM/2011 ARISING OUT OF ITA NO. 4377/MUM/2010 (ASST YEAR 2007-08) PUSHPANJALI INVESTRADE P LTD PUINIT TOWER- II - B WING SECTOR NO.11 CBD BELAPUR NAVI MUMBAI 614 VS THE ASST COMMR OF INCOME TAX 10(3), MUMBAI (APPELLANT) (RESPONDENT) PAN NO. AAACP 3767E ASSESSEE BY SH SAMEER DALAL REVENUE BY SH K G KUTTY DT.OF HEARING 10 TH AUG 2012 DT OF PRONOUNCEMENT 24 TH AUG 2012 PER VIJAY PAL RAO, JM THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATE21.9.2011 OF THIS TRIBUNAL WHEREBY THE APPEAL OF THE ASSESSEE WAS DECIDED EX-PARTE, THOUGH ON MERITS. 2 THE ONLY ISSUE INVOLVED IN THE APPEAL OF THE ASSESSEE WAS THE DISALLOWANCE MADE U/S 14A IN REGULAR ASSESSMENT OF INCOME AS WELL AS BOOK PROFIT COMPUTED U/S 115JB. THE TRIBUNAL SET ASIDE THE ISSUE TO THE RECORD OF THE ASSESSING OFFICER TO DECIDE THE SAME AFRESH IN VIEW OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG P LTD VS ACIT REPORTED IN 328 ITR 81. 3 NOW, THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT NON APPEARANCE ON BEHALF OF THE ASSESSEE WAS DUE TO NON RECEIPT OF NO TICE WHICH IS BEYOND THE CONTROL OF THE MA 593/M/2011 2 PUSHPANJALI INVESTRADE P LTD ASSESSEE AND THEREFORE, THE ASSESSEE MAY BE GIVEN AN OPPORTUNITY OF BEING HEARD. HE HAS FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT UTILISED THE INTEREST BEARING FUNDS FOR THE PURPOSE OF INVESTMENT; THEREFORE, NO DISALLOWANCE IS CALLED FOR U/S 14A 3.1 ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 4 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THOUGH THE ASSESSEE HAS RAISED A PLEA THAT THE ASSESSEE HAS NOT UTILIZED ANY INTEREST BEARING FUNDS FOR INVESTMENT PUR POSE; THEREFORE, NO DISALLOWANCE IS CALLED FOR, HOWEVER, THIS FACT IS ALSO REQUIRED TO BE VERIFIED BY THE ASSESSING OFFICER. ACCORDINGLY, WE MODIFY THE IMPUGNED ORDER DATED 21.9.2011 BY ADDING THE DIRECTION TO THE ASSESSING OFFICER TO CONSIDER THE PLEA OF THE ASSESSEE THAT NO INTEREST BEARING FUNDS HAS BEEN UTILISED FOR THE PURPOSE OF INVESTMENT GIVING RISE TO THE TAX FREE INCOME. ACCORDINGLY, THE MISCELLANEOUS APPLICATION IS DISPOSED OFF. 5 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 24 TH AUG 2012. SD/- SD/- ( P M JAGTAP ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 24 TH AUG 2012 RAJ* MA 593/M/2011 PUSHPANJALI INVESTRADE P LTD 3 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI