VIRAL MULANI (HUF), V. ITO WD 21(2)(3),

MA 829/MUM/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4489 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 1999-2000
• Appeal Filed On: 08-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V G GINDE
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J, MUMBAI BEFORE SHRI R.K.PANDA, AM & SMT. ASHA VIJAYARAGHAVA N, JM M.A. NO. 829/MUM/2009 ARISING OUT OF I.T.A. NO. 769/MUM/2003 (ASSESSMENT YEAR 1999-2000) M/S. VIRAL BHULANI HUF 18/5, HIND CHS, 23, N.S. MANKIKAR MARG, SION, MUMBAI-400 022 PAN: AAAHV0059C VS. THE INCOME-TAX OFFICER WARD 21(2)(3) PRATYAKSHA KAR BHAVAN, C-10, 5 TH FLOOR, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400 051\ APPELLANT RESPONDENT APPELLANT BY : SHRI V.G. GINDE RESPONDENT BY : SHRI NAVIN GUPTA ORDER DATE OF HEARING: 19.03.2010 DATE OF ORDER: 22.03.2010 PER R.K.PANDA, AM , THROUGH THIS MISCELLANEOUS APPLICATION (MA) THE AS SESSEE REQUESTS THE TRIBUNAL TO RECTIFY ITS ORDER SINCE GR OUNDS OF APPEAL NO. 3 BY THE ASSESSEE HAS NOT BEEN ADJUDICATED. 2. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSESSEE HAD FILED AN APPEAL AGAINST THE ORDER OF THE CIT(A) WHO HAS SUST AINED THE DISALLOWANCE OF INTEREST PAID AMOUNTING TO RS.45,98 5, DISALLOWANCE OF COMMISSION OF RS. 1 LAKH PAID TO M/S. EXCEL TRADERS & AGENCIES AND DISALLOWANCE OF COMMISSION OF RS. 1 LAKH PAID TO SH RI V. PRAKASH. HOWEVER, THE TRIBUNAL WHILE DECIDING THE ISSUE HAS RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDIC ATION OF THE ISSUE ON ACCOUNT OF DISALLOWANCE OF INTEREST OF RS.45,985 AN D THE DISALLOWANCE OF COMMISSION OF RS.1 LAKH PAID TO M/S. EXCEL TRADE RS AND AGENCIES. THE TRIBUNAL INADVERTENTLY HAD NOT DEALT WITH THE D ISALLOWANCE OF COMMISSION OF RS.1 LAKH PAID TO SHRI V. PRAKASH. T HEREFORE, IN OUR OPINION, A MISTAKE HAS CREPT IN THE ORDER OF THE TR IBUNAL. WE MA NO. 829/MUM/2009 M/S. VIRAL BHULANI HUF ====================== 2 ACCORDINGLY AMEND PARAGRAPHS 3 AND 4 OF THE ORDER O F THE TRIBUNAL WHICH SHOULD BE READ AS UNDER: 3. THE ASSESSEE IN ITS VARIOUS GROUNDS OF APPEAL H AS CHALLENGED THE ORDER OF THE LEARNED CIT(A) IN CONFI RMING THE DISALLOWANCE OF INTEREST PAID AMOUNTING TO RS.45,985/- IN RESPECT OF LOAN BORROWED FROM SHRI M .P. BHULANI. THE ASSESSEE HAS ALSO CHALLENGED THE ORDE R OF THE LEARNED CIT(A) IN CONFIRMING THE DISALLOWANCE O F COMMISSION OF RS. 1 LAKHS PAID TO M/S. EXCEL TRADER S AND AGENCIES AND DISALLOWANCE OF COMMISSION OF RS. 1 LAKH PAID TO SHRI V. PRAKASH . 4. BOTH THE SIDES FAIRLY CONCEDED THAT THIS MATTER NEEDS FRESH ADJUDICATION AT THE LEVEL OF THE AO SIN CE CERTAIN DOCUMENTS AND EVIDENCES FILED BY THE ASSESS EE WAS NEITHER CONSIDERED BY THE AO NOR CONSIDERED BY THE LEARNED CIT(A). IN THIS VIEW OF THE MATTER, WE DEE M IT PROPER TO RESTORE THIS MATTER BACK TO THE FILE OF T HE AO DIRECTING HIM TO RE-ADJUDICATE THE ISSUE IN THE LIG HT OF THE EVIDENCES FILED BY THE ASSESSEE BEFORE HIM AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. GROUNDS RAISED BY THE APPELLANT ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 3. IN THE RESULT, THE MA FILED BY THE ASSESSEE IS ALLO WED. PRONOUNCED ON 22 ND MARCH, 2010 SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 22 ND MARCH, 2010 MA NO. 829/MUM/2009 M/S. VIRAL BHULANI HUF ====================== 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-XXI, MUMBAI 4. THE CIT, CITY-XXI, MUMBAI 5. THE DR J BENCH. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES, MUMBAI TPRAO