OM MARKETING, MUMBAI v. ITO 12(3)(4), MUMBAI

ITA 1947/MUM/2012 | 2008-2009
Pronouncement Date: 10-07-2013 | Result: Allowed

Appeal Details

RSA Number 194719914 RSA 2012
Assessee PAN AAAFO8219P
Bench Mumbai
Appeal Number ITA 1947/MUM/2012
Duration Of Justice 1 year(s) 3 month(s) 19 day(s)
Appellant OM MARKETING, MUMBAI
Respondent ITO 12(3)(4), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 10-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 10-07-2013
Date Of Final Hearing 10-07-2013
Next Hearing Date 10-07-2013
Assessment Year 2008-2009
Appeal Filed On 22-03-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH MUMBAI . . BEFORE SHRI B.R. MITTAL JM AND SHRI RAJENDRA AM ./I.T.A. NO. 1947/MUM/2012 ( / ASSESSMENT YEAR: 2008-09) OM MARKETING 2-11 PRAGATI NAGAR KANDIVALI (W) MUMBAI-400067 / VS. INCOME TAX OFFICER 1 2 (3)( 4 ) MUMBAI. ./ ./PAN/GIR NO. : AAAFO8219P ( ! /APPELLANT ) .. ( ' ! / RESPONDENT ) ! / APPELLANT BY : MS. AARTI SATHE & SHRI KALPESH TURALKAR ' ! $ /RESPONDENT BY : MS. C TRIPUR A SUNDARI $ ( / DATE OF HEARING : 10.07.2013 $ ( /DATE OF PRONOUNCEMENT : 10.07.2013 / O R D E R PER B.R.MITTAL JM: THE ASSESSEE HAS FILED THIS APPEAL FOR THE ASSESS MENT YEAR 2008-09 AGAINST THE ORDER OF LD. CIT(A) DATED 29.12.2011 ON THE FOLLOW ING GROUNDS: 1. FOR THAT THE LD. CIT(A) ACTED ERRONEOUSLY IN CO NFIRMING ADDITION OF RS.8 16 821/- ON ACCOUNT OF NON-DISCLOSURE OF COMMI SSION INCOME IN VIEW OF THE LETTER FILED ON 29.11.2010 THE DATE ON WHICH THE OR DER WAS PASSED. 2. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING ADDI TION OF RS.60 000/- WITHOUT EXAMINING THE CASH BOOK OF THE RELEVANT DATE OF CAS H DEPOSIT WHICH COULD HAVE EXPLAINED THE SOURCE OF DEPOSIT. 3. FOR THAT THE LD. CIT(A) WAS WRONG IN CONFIRMING ADDITION OF RS .2 00 000/- OUT OF VARIOUS EXPENSES IN SPITE OF ASSESSEE SUBMIT TING DETAILS OF ALL EXPENSES BEFORE THE ASSESSING OFFICER WHICH PROVED THAT EXPE NSES WERE LEGITIMATELY INCURRED AND SOLELY FOR BUSINESS PURPOSES. 4. FOR THAT THE ADDITION OF RS.8 16 821/- RS.60 000/- AND RS.2 00 000/- AS PER GROUND NO.1 2 AND 3 BE DELETED OR IN THE ALTERN ATIVE THE ASSESSMENT BE SET ASIDE AND THE ASSESSING OFFICE BE DIRECTED TO MAKE FRESH ASSESSMENT AFTER AFFORDING THE ASSESSEE REASONABLE OPPORTUNITY OF BE ING HEARD. I.T.A. NO. 1947/MUM/2012 2 2. THE RELEVANT FACTS ARE THAT THE ASSESSEE IS A PA RTNERSHIP FIRM AND CARRIED ON THE BUSINESS AS COMMISSION AGENT FOR HDFC BANK LTD. TH E ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL INCOME AT RS.1 40 615/-. THE AO F RAMED THE ASSESSMENT UNDER SECTION 144 OF THE INCOME TAX ACT 1961 (THE ACT) COMPUT ING THE TAXABLE INCOME AT RS.12 17 440/- INTERALIA BY MAKING THE FOLLOWING A DDITION/DISALLOWANCES OF : A) - RS.8 16 821/- UNDER THE HEAD COMMISSION R ECEIPT B) - RS.60 000/- AS UNEXPLAINED CASH C REDIT C) - RS. 2 00 000/- BY MAKING ADDITION OU T THE EXPENSES CLAIMED THE AO HAS STATED THAT THE ASSESSEE FAILED TO FUR NISH THE REQUISITE DETAILS/DOCUMENTS IN SPITE OF SEVERAL OPPORTUNITIES GIVEN TO THE ASS ESSEE AND ACCORDINGLY HE WAS LEFT NO OTHER ALTERNATIVE BUT TO COMPLETE THE ASSESSMENT ON THE BASIS OF BEST JUDGMENT U/S 144 OF THE ACT. THE ASSESSEE FILED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. IT WAS CONTENDED BEFORE THE LD. CIT(A) THAT THE ASSESSEE FILED THE REQUISITE EVIDENCE/DETAILS ON 29.11.2010 BUT BY THAT TIME AS SESSMENT ORDER WAS ALREADY MADE. THE LD. CIT(A) HAS STATED THAT HE HAS NOT FURNISHED REQUISITE DETAILS BEFORE HIM. ACCORDINGLY THE LD. CIT(A) CONFIRMED THE ACTION O F THE AO IN RESPECT OF ADDITIONS (SUPRA) MADE BY THE AO. 4. HENCE THE ASSESSEE IS IN APPEAL BEFORE THE TR IBUNAL. 5. DURING THE COURSE OF HEARING LD.AR SUBMITTED T HAT THE ASSESSEE HAD GIVEN REQUISITE DOCUMENTS TO THE REPRESENTATIVE WHO WAS A PPEARING BEFORE THE AO BUT THE ASSESSEE CAME TO KNOW OF NON-COMPLIANCE BY THE ASS ESSEES REPRESENTATIVE ONLY WHEN THE ASSESSEE RECEIVED NOTICE ASSESSMENT ORDER PASS ED U/S 144 OF THE ACT. THE LD. AR SUBMITTED THAT REQUISITE DETAILS WERE FILED BEFORE THE AO BUT BY THE TIME DETAILS WERE FILED THE ASSESSMENT ORDER HAD ALREADY BEEN FINAL IZED ON THE SAME DATE I.E. 29.11.2010. AT THE TIME OF HEARING THE LD. AR SUBM ITTED THAT THE LD. CIT(A) HAS CONFIRMED THE DISALLOWANCES/ADDITIONS MADE BY THE A O WITHOUT CONSIDERING THE DETAILS AND THE NATURE OF SERVICES RENDERED BY THE ASSESSEE AGAINST THE INCOME THAT HAD BEEN SHOWN. THE LD. AR SUBMITTED THAT IF THE MATTER IS RESTORED TO THE AO THE ASSESSEE WILL FURNISH REQUISITE DETAILS TO JUSTIFY THAT ADDITION S MADE BY THE AO IN THE ASSESSMENT ORDER PASSED UNDER SECTION 144 OF THE ACT ARE NOT JUSTIFIED. HOWEVER LD. DR SUBMITTED THAT THE ASSESSEE ONLY FILED T HE ADDITIONAL DOCUMENTS BEFORE THE LD. CIT(A) AND NOT BEFORE THE AO IN SPITE OF VARIOUS OPPORTUNITIES GIVEN TO THE ASSESSEE. THEREFORE THE L D. CIT(A) WAS JUSTIFIED IN NOT I.T.A. NO. 1947/MUM/2012 3 ADMITTING THE ADDITIONAL EVIDENCE FILED BEFORE HIM. SHE SUBMITTED THAT THE ORDER OF THE LD. CIT(A) BE CONFIRMED. 6. WE HAVE CONSIDERED THE ORDERS OF THE AUTHORITIE S BELOW AND THE SUBMISSIONS OF THE LD. REPRESENTATIVES OF THE PARTIES. WE OBSERV E THAT THE LD. CIT(A) HAS CONFIRMED THE ADDITIONS/DISALLOWANCE MADE BY THE AO AS THE AS SESSEE COULD NOT FILE DETAILS BEFORE THE AO AND THE LD. CIT(A) CONSIDERED THE SAID DOCU MENTS WHICH THE ASSESSEE STATED TO HAVE BEEN FILED ON 29.11.2010 BEFORE THE AO AS ADDITIONAL DOCUMENTS. IN THE INTEREST OF JUSTICE WE CONSIDER IT PRUDENT TO SET A SIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE ISSUES BEFORE THE AO TO DECIDE THE SAME AFRESH AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND CONS IDERING SUCH EVIDENCES AS MAY BE FILED BEFORE HIM. IT IS STATED THAT THE LD. AR AT THE TIME OF HEARING SUBMITTED THAT IF THE MATTER IS RESTORED TO THE AO THE ASSESSEE WILL CO -OPERATE WITH THE AO IN FRAMING THE ASSESSMENT ORDER AS PER LAW. THEREFORE WE SET ASI DE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE AO TO PASS THE FRESH ASSESSMENT ORDER AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AND CONS IDERING THE EVIDENCES AS MAY BE SUBMITTED BY THE ASSESSEE BEFORE HIM. IF THE ASSESS EE FAILS TO CO-OPERATE WITH THE AO AND /OR FAILS TO FURNISH THE REQUISITE DETAILS BEFO RE HIM THE AO WILL BE AT LIBERTY TO PASS FRESH ORDER ON THE BASIS OF EVIDENCE AVAILABLE BEF ORE HIM AND AS PER LAW. HENCE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT GROUNDS OF APPEAL TAKEN B Y THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF REPRESENTATIVES OF THE PARTIES AFTER CONCLUSION OF HEARING ON 10TH JULY 2013 $ / 0 10TH JULY 2013 $ SD/- SD/- (RAJENDRA) (B.R. MITTAL) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 0 DATED 10/07/2013 . . ./ SRL SR. PS I.T.A. NO. 1947/MUM/2012 4 !' #' / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. ' ! / THE RESPONDENT. 3. 4 ( ) / THE CIT(A)- 4. 4 / CIT 5. 5 '7 ( 7 / DR ITAT MUMBAI 6. / GUARD FILE. / BY ORDER 5 ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI