AGARWAL BUILDERS & DEVELOPERS, NAVI MUMBAI v. DCIT 22(3), MUMBAI

ITA 1693/MUM/2011 | 2006-2007
Pronouncement Date: 07-09-2011 | Result: Allowed

Appeal Details

RSA Number 169319914 RSA 2011
Bench Mumbai
Appeal Number ITA 1693/MUM/2011
Duration Of Justice 6 month(s) 6 day(s)
Appellant AGARWAL BUILDERS & DEVELOPERS, NAVI MUMBAI
Respondent DCIT 22(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 07-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 07-09-2011
Assessment Year 2006-2007
Appeal Filed On 01-03-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI BEFORE SHRI. PRAMOD KUMAR (A.M.) AND SHRI. VIJAY PA L RAO (J.M) ITA NO.1692/MUM/2011 ASSESSMENT YEAR : 2005-2006 ITA NO.1693/MUM/2011 ASSESSMENT YEAR : 2006-2007 M/S. AGARWAL BUILDERS & DEVELOPERS 203 RAIKAR BHAVAN SECTOR 17 VASHI NAVI MUMBAI. PAN : VS. D.C.I.T.-22(3) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI H.N. MOTIWALA RESPONDENT BY : SHRI PARSHASARTHI NAIR DATE OF HEARING : 08.08.2011 DATE OF PRONOUNCEMENT : 07.09.2011 O R D E R PER VIJAY PAL RAO J.M. THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST THE TWO SEPARATE ORDERS PASSED BY THE LEARNED CIT (A)-XXXII I MUMBAI BOTH DATED 30.11.2010 FOR A.Y. 2005-06 AND 2006-07 RESPECTIVEL Y. 2. THE ASSESSMENT IN THE CASE OF THE ASSESSEE IN TH ESE TWO ASSESSMENT YEAR WERE FRAMED U/S.144 OF THE I.T. ACT. BECAUSE OF THE ASSESSEE DID NOT FILE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2005- 06 AND 2006-07 AND FURTHER THERE WAS NO RESPONSE TO THE NOTICE U/S.148 ISSUED BY THE ASSESSING OFFICER. SUBSEQUENTLY THE ASSESSING OFFICER ISSU ED NOTICE U/S.142(1) BUT THE ASSESSEE DID NOT FILE THE RETURN OF INCOME AND AS WELL AS DETAILS CALLED BY THE ASSESSING OFFICER. FINALLY THE REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER ON 13.12.2008 AND SUBM ITTED THAT THE ACCOUNTS WERE NOT FINALISED FOR THE EARLIER YEARS AND THEREF ORE THE INCOME TAX RETURN WERE NOT FILED. SINCE THE ASSESSEE FURNISHED IN TH E BANK STATEMENT TRIAL BALANCE COPIES OF LEDGER ACCOUNTS OF CREDITORS AND LOANS AND CERTAIN DETAILS ITA NO.1692/MUM/2011 ITA NO.1693/MUM/2011 2 OF CERTAIN EXPENSES INCURRED BY THE ASSESSEE ALONG WITH THE AGREEMENTS FOR PROJECT THE ASSESSING OFFICER FRAMED THE PAYMENT U /S.144 OF I.T. ACT ON THE TOTAL INCOME OF ` 5 76 94 990/- FOR THE ASSESSMENT YEAR 2005-06 OF T OTAL INCOME OF ` 1 35 88 960/- FOR THE ASSESSMENT YEAR 2006-07. WH ILE FRAMING THE EX-PARTE ASSESSMENT THE ASSESSING OFFICER ESTI MATED THE INCOME BY DETERMINING 15% OF THE SALE VALUE AND ALSO MADE SOM E ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT. THE ASSESSEE CHALLENGE D THE ASSESSMENT FRAMED U/S.144 BEFORE THE CIT(A) UPON WHICH THE CIT(A) REM AND THE MATTER TO THE ASSESSING OFFICER FOR REMAND REPORT. THE ASSESSING OFFICER SUBMITTED ITS REMAND REPORT DATED 10.08.2009. AFTER RECEIVING T HE REMAND REPORT THE CIT(A) GIVEN PARTIAL RELIEF TO THE ASSESSEE WITH RE GARD TO THE UNEXPLAINED CASH CREDIT FROM M/S. ATULA REALITY P. LTD. THE C IT(A) ACCORDINGLY DELETED THE ADDITION OF ` 3 54 83 228/-IN VIEW OF THE CONFIRMATION FILED BY THE ASSESSEE. HOWEVER ALL OTHER ADDITIONS WERE CONFI RMED BY THE LEARNED CIT(A) WHILE PASSING THE IMPUGNED ORDER. 3. BEFORE US THE LEARNED AR OF THE ASSESSEE HAS SUB MITTED THAT THE ASSESSEE FILED COMPLETE DETAILS AND FINAL ACCOUNTS DURING THE REMAND PROCEEDINGS AND SINCE THE ASSESSEE HAS FOLLOWING TH E PROJECT COMPLETION METHOD OF ACCOUNTING NO ADDITION CAN BE MADE ON TH E BASIS OF ESTIMATE. HE HAS FURTHER SUBMITTED THAT THOUGH THE CIT(A) ORDERE D FOR A REMAND REPORT HOWEVER REMAND REPORT WAS NOT CONSIDERED BY THE LEA RNED CIT(A) WHILE DECIDING THE APPEAL OF THE ASSESSEE. HE HAS REFERR ED THE IMPUGNED ORDER OF THE CIT(A) AND SUBMITTED THAT ASSESSEE PRODUCE ALL THE DETAILS AND FINAL ACCOUNTS WERE ACKNOWLEDGE BY THE ASSESSING OFFICER IN REMAND REPORT. THEREFORE THE APPEAL OF THE ASSESSEE SHOULD HAVE B EEN DECIDED ON MERIT INSTEAD OF REJECTING THE BOOKS OF ACCOUNT. 4. ON THE OTHER HAND THE LEARNED DR HAS SUBMITTED THAT DESPITE SUFFICIENT OPPORTUNITY GIVEN BY THE ASSESSING OFFIC ER THE ASSESSEE NEITHER FILED RETURN OF INCOME NOR PRODUCE NECESSARY DETAIL S AND BOOKS OF ACCOUNT BEFORE THE ASSESSING OFFICER. EVEN DURING THE PROC EEDINGS BEFORE LEARNED CIT(A) THE ASSESSEE PRODUCE FINAL ACCOUNT BUT THE S AME WERE NOT SUBJECTED ITA NO.1692/MUM/2011 ITA NO.1693/MUM/2011 3 TO TAX AUDIT U/S.44AB. THEREFORE WHEN THE ASSESSEE HAS VIOLATED STATUTORY PROVISION THE BOOKS OF ACCOUNTS WITHOUT TAX AUDIT CANNOT BE ACCEPTED. HE HAS RELIED UPON ORDER OF THE LOWER AUTHORITIES. 5. WE HAVE CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RELEVANT MATERIAL ON RECORD. THE ASSESSMENT WAS FR AMED ON THE BASIS OF ESTIMATE AND DISALLOWANCE/ADDITIONS WERE MAD FOR WA NT OF NECESSARY DETAILS AND EVIDENCE AS THE ASSESSEE COULD NOT PRODUCE THE FINAL ACCOUNT AND EVEN RETURN OF INCOME BEFORE THE ASSESSING OFFICER. ON APPEAL THE ASSESSEE PRODUCE THE FINAL ACCOUNT BEFORE CIT(A) UPON WHICH THE CIT(A) ISSUED A REMAND ORDER AND SOUGHT THE REMAND REPORT FROM THE ASSESSING OFFICER. ONCE THE FINAL ACCOUNT WERE REFERRED TO THE ASSESSI NG OFFICER FOR ITS COMMENT IN THE REMAND REPORT AND SUBSEQUENTLY THE REMAND RE PORT WAS FILED THEN THE CIT(A) OUGHT TO HAVE ADJUDICATED THE DISPUTE RAISED BY THE ASSESSEE IN THIS APPEAL ON MERIT. ON THE CONTRARY THE CIT(A) DECL INED TO ADMIT THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE IN THE FORM OF FINAL ACCOUNTS AND ACCORDINGLY CONFIRMED THE ESTIMATED INCOME ASSE SSED BY THE ASSESSING OFFICER. WE FURTHER NOTE THAT LEARNED CIT(A) HAS N OT DISCUSSED EVEN THE REMAND REPORT FOR DECIDING THE ISSUE ON MERIT THERE FORE IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JU STICE WE ARE OF THE CONSIDERED OPINION THAT THE MATTER IS REQUIRE TO BE CONSIDERED AND ADJUDICATE IN THE LIGHT OF FINAL ACCOUNTS AS WELL A S REMAND REPORT FILED BY THE ASSESSING OFFICER. HENCE WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND REMAND THE MATTER TO THE RECORD OF THE C IT(A) FOR ADJUDICATION ON MERITS OF THE ISSUES WHICH WERE DECIDED AGAINST TH E ASSESSEE AFTER CONSIDERING THE REMAND REPORT AS WELL AS FINAL ACCO UNTS FILED BY THE ASSESSEE. ITA NO.1692/MUM/2011 ITA NO.1693/MUM/2011 4 8. IN THE RESULT APPEALS OF THE ASSESSEE ARE ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 7 TH DAY OF SEPTEMBER 2011. SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) SD/- (VIJAY PAL RAO) (JUDICIAL MEMBER) MUMBAI DATED 07.09.2011 JANHAVI COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- MUM BAI 4. COMMISSIONER OF INCOME TAX CITY- MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH MUM BAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI