SHYAM AHUJA, MUMBAI v. ITO 11(1)94), MUMBAI

ITA 2086/MUM/2011 | 2006-2007
Pronouncement Date: 13-07-2011 | Result: Partly Allowed

Appeal Details

RSA Number 208619914 RSA 2011
Assessee PAN AABPA5948G
Bench Mumbai
Appeal Number ITA 2086/MUM/2011
Duration Of Justice 3 month(s) 30 day(s)
Appellant SHYAM AHUJA, MUMBAI
Respondent ITO 11(1)94), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 13-07-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted E
Tribunal Order Date 13-07-2011
Date Of Final Hearing 04-07-2011
Next Hearing Date 04-07-2011
Assessment Year 2006-2007
Appeal Filed On 14-03-2011
Judgment Text
1 ITA NO. 2086/MUM/2011 (ASST YEAR 2006-07) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH MUMBAI BENCHES MUMBAI BEFORE SHRI PRAMOD KUMAR AM & SHRI VIJAY PAL RA O JM ITA NO. 2086/MUM/2011 (ASST YEAR 2006-07) SHRI SHYAM AHUJA 3C NAAZ BLDG LAMINGTON ROAD MUMBAI VS THE INCOME TAX OFFICER WARD 11(1)(4) (APPELLANT) (RESPONDENT) PAN NO. AABPA5948G ASSESSEE BY SHRI MANISH SANGHAVI REVENUE BY SHRI G P TRIVEDI PER VIJAY PAL RAO JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 11.1.2011 OF THE CIT(A) FOR THE AY 2006-07. 2 THE ASSESSEE IS AN INDIVIDUAL AND DOING THE BUSIN ESS OF FILM DISTRIBUTOR/EXHIBITOR UNDER THE PROPRIETOR SHIP CONCERN IN THE NAME AND S TYLE OF SHYAM AHUJA AND M/S AHUJA FILMS. THE ASSESSMENT HAS BEEN FRAMED BY THE ASSESSING OFFICER U/S 144 OF THE I T ACT WHEREBY THE ASSESSING OFFICER MADE THE FOLL OWING ADDITION BY GIVING THE FOLLOWING FINDINGS: THE ASSESSEE IS A FILM DISTRIBUTOR/EXHIBITOR. SEVERA L NOTICES DATED 26.10.07 31.10.08 AND 4.12.08 WERE SERVED. HOWEVER NO DETAILS HAVE BEEN FURNISHED. HENCE THE ASSESSMENT IS COMPLETED EX-PARTE U/S 144 T O THE BEST OF MY JUDGMENT ON THE BASIS OF INFORMATION AVAILABLE ON R ECORD ASUNDER: I) GROSS INCOME AS PER P&L A/C OF SHYAM AHUJA 12 47 605 II) GROSS INCOME AS PER P&L A/C OFAHUJA FILMS 22 70 483 III LOANS AND CREDITORS AS PER B/S OF SHYAM AHUJA 16 19 073 IV LOANS AND CREDITORS AS PER B/S OF AHYJA FILMS 88 01 230 2 ITA NO. 2086/MUM/2011 (ASST YEAR 2006-07) 2.1 THE ASSESSEE CHALLENGED THE ACTION OF THE ASSES SING OFFICER BEFORE THE CIT(A). DURING THE COURSE OF THE APPELLATE PROCEEDINGS THE ASSESSEE SUBMITTED THE DETAILS OF UNSECURED LOANS SUNDRY CREDITORS EXPENSES AND OTHER LIABILITIES DETAILS OF BANK STATEMENTS ETC. THE CIT(A) PASSED REMAND ORDER FOR FURTHER INFORMATION AND REPORT OF THE ASSESSING OFFICER IN TERMS OF PROVISIONS OF RULE 46A. AFTER CONSIDERING THE REMAND REPORT THE CIT(A) CONFIRMED THE ACTION OF T HE ASSESSING OFFICER REGARDING THE DISALLOWANCES/ADDITIONS AS UNDER: 2.1.3 COPY OF THE REMAND REPORT WAS PROVIDED TO APPEL LANT AND CASE WAS FIXED FOR HEARING ON 7.10.10. SINCE THEN THE CASE HAS BEEN ADJOURNED TO 25.10.10 28.190.10 ON WHICH DATES NO NE ATTENDED. AS A FINAL OPPORTUNITY THE CASE WAS FIXED FOR HEARING ON 2 2.11.10 ON WHICH DATE APPELLANTS AR FURTHER REQUESTED ADJOURNMENT. T HE CASE WAS ADJOURNMENT TO 30.11.10 ON WHICH DATE NONE ATTENDED . THEREAFTER THE CASE WAS RE-FIXED FOR 3.1.11 WHEN AR ATTENDED AND SO UGHT TO FILE THE SAME DETAILS AS FILED EARLIER. HOWEVER THERE WAS NO EXPLANATION AS TO WHY PROCEEDINGS WERE NOT ATTENDED TO AND EXPLANATION S WERE NOT FILED BEFORE THE ASSESSING OFFICER DURING REMAND PROCEE DINGS. 2.1.4 FACTS AND MATERIAL ON RECORD ARE CONSIDERED. IN THE FACTS AND CIRCUMSTANCES AS DISCUSSED ABOVE IT IS SEEN THAT I N RESPECT OF OPPORTUNITIES GIVEN DURING REMAND PROCEEDINGS THE APPE LLANT HAS NOT AVAILED OF THE SAME. ASSESSING OFFICERS REPORT IN T HE MATTER AS NARRATED SUPRA IS CLEAR. IN THE FACTS AND CIRCUMSTANC ES OF THE CASE IT IS HELD THAT APPELLANT HAS NOT BEEN ABLE TO SATISFACTO RILY PROVE HIS CASE AND THERE IS NO CAUSE FOR DELETING ANY OF THE DISALLO WANCES/ADDITIONS MADE BY ASSESSING OFFICER IN THE IMPUGNED ORDER. 2.2 IT IS CLEAR FROM THE ABOVE FINDINGS OF THE CIT( A) THAT THE CIT(A) WITHOUT GOING INTO THE MERITS OF THE ISSUE AS WELL AS WITHOUT DI SCUSSING THE EXPLANATION DETAILS AND OTHER MATERIALS FILED BY THE ASSESSEE CONFIRMED T HE DISALLOWANCES/ADDITIONS MADE BY THE ASSESSING OFFICER SIMPLY ON THE REASONS THAT THE ASSESSEE DID NOT AVAIL THE OPPORTUNITY GIVEN BY THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS. 3 BEFORE US THE ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE GROUNDS: 3 ITA NO. 2086/MUM/2011 (ASST YEAR 2006-07) I) THE CIT(A) ERRED IN CONFIRMING THE ADDITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF THE EXPENSES OF RS. 18 05 401/- INCUR RED BY THE APPELLANT. II) THE CIT(A) ALSO ERRED IN CONFIRMING THE ADDITION S MADE BY THE ASSESSING OFFICER IN RESPECT OF SUNDRY CREDITORS OF RS. 40 58 91 0/- WITHOUT APPRECIATING THE FACT THAT CERTAIN SUNDRY CREDITORS ARE OLD SUNDRY CRE DITORS AND FOR THE NEW SUNDRY CREDITORS DETAILS HAVE BEEN GIVEN TO THE LD CIT(A) WHICH THE LD CIT(A OUGHT TO HAVE CONSIDERED THIS AND OUGHT NOT TO HAVE CONFIRMED THE ADDITIONS OF RS. 40 58 910/- ON ACCOUNT OF SUNDRY CREDITORS. III) YOUR APPELLANT FURTHER SUBMITS THAT THE LD CIT( A) ALSO ERRED IN CONFIRMING THE ADDITION OF RS. 41 42 312/- ON ACCOUNT OF UNSECURED LOANS. YOUR APPELLANT SUBMITS THAT YOUR APPELLANT HAS GIVEN THE DETAILS RE GARDING THE UNSECURED LOANS WHICH ARE OLD ONE AND FOR THE NEW LOANS YOUR APPELLANT HAS GIVEN THE CONFIRMATIONS. EVEN IN THE TAX AUDIT REPORT YOUR APPE LLANT HAS GIVEN THE FULL DETAILS WITH PAN NUMBER. IV) YOUR APPELLANT SUBMITS THAT IN THE CASE OF SHYAM AHUJA THE LD CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF EXPENSES OF RS.8 26 205/- WITHOUT CONSIDERING THE DETAILS FILED BY YOUR APPELLANT. V) THE LD CIT(A) ALSO ERRED IN CONFIRMING THE ADDIT ION OF RS. 11 22 865/- ON ACCOUNT OF SECURED LOANS TAKEN BY YOUR APPELLANT FROM VARIOUS BANKS. VI)THE LD CIT(AA) ALSO ERRED IN CONFIRMING THE ADDIT ION OF RS. 4 96 207 ON ACCOUNT OF SUNDRY CREDITORS WITHOUT CONSIDERING THE DETAILS FILED BY YOUR APPELLANT WITH NAMES AND ADDRESSES OF THE SUNDRY CRE DITORS. 3.1 THE LD AR OF THE ASSESSEE HAS POINTED OUT THAT THOUGH THE ASSESSMENT WAS PASSED U/S 144 OF THE I T ACT; HOWEVER THE ASSESSE ES REPRESENTATIVE APPEARED BEFORE THE ASSESSING OFFICER ON 11.12.2008 7.12.20 08 AND SUBMITTED ALL THE DETAILS. HE HAS FURTHER SUBMITTED THAT THE ASSESSEE HAS ALSO FURNISHED ALL THE REQUISITE EXPLANATION DETAILS AND MATERIAL BEFORE THE CIT(A) ON WHICH A REMAND ORDER WAS PASSED. HE HAS POINTED OUT THAT THE CIT(A) HAS REPR ODUCED THE REMAND REPORT IN HIS ORDER WHEREIN IT IS STATED THAT THE ASSESSEE HAS FURNISHED A LIST OF UNSECURED LOANS AND XEROX COPIES OF CONFIRMATION LETTERS AND THE PARTICULARS OF THE LOANS TAKEN AND REPAID DURING THE YEAR. THE ASSESSING OFFICE R IN THE REMAND REPORT SUBMITTED THAT IN CASE OF 33 LOAN CREDITORS THERE WAS A DI SCREPANCY WITH REGARD TO THE PAYMENT OF THESE LOANS DURING THE YEAR; THEREFORE THE ASSESSING OFFICER COMMENTED 4 ITA NO. 2086/MUM/2011 (ASST YEAR 2006-07) THAT THERE IS A MISMATCH WITH RESPECT TO THE LOAN OUTSTANDING AT THE END OF THE PREVIOUS YEAR. THE LD AR OF THE ASSESSEE HAS SUBMI TTED THAT THE CIT(A) WITHOUT CONSIDERING THE DETAILS AND THE EXPLANATIONS FILED BY THE ASSESSEE SIMPLY ACCEPTED THE REMAND REPORT OF THE ASSESSING OFFICER WHILE P ASSING THE IMPUGNED ORDER. THUS THE LD AR HAS URGED THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY TO EXPLAIN HIS CASE BEFORE THE CIT(A) AND THE MATTER M AY BE DECIDED ON MERIT. 3.2 THE LD DR ON THE OTHER HAND HAS SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT DESPITE SUFFICIENT OPPORTU NITIES GIVEN BY THE LOWER AUTHORITIES THE ASSESSEE DID NOT COMPLY WITH THE R EQUIREMENTS REGARDING THE EXPENSES SUNDRY CREDITORS AND LOAN CREDITORS AND T HEREFORE THE ASSESSEE DOES NOT DESERVE ANY FURTHER OPPORTUNITY. 4 WE HAVE HEARD THE D AR OF THE ASSESSEE AND THE L D DR AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS NOT DISPUTED BY THE REVENUE THAT THE ASSESSEE SUBMITTED THE DETAILS BEFORE THE ASSESSING OFFICER; THOUGH NOBODY APPEARED BEFORE THE ASSESSING OFFICER IN RESPONSE TO THE NOTICES IS SUED BY THE ASSESSING OFFICER. ACCORDINGLY THE ASSESSING OFFICER FRAMED THE ASSES SMENT U/S 144 OF THE ACT. THE CIT(A) FURTHER REMANDED THE MATTER FOR CONSIDERIN G ALL THE DETAILS AND EXPLANATION FILED BY THE ASSESSEE AND DECIDED THE APPEAL OF THE ASSESSEE ON TECHNICAL GROUND WITHOUT GOING INTO THE MERITS OF THE ISSUE AFTER CO NSIDERING THE EXPLANATION AND MATERIAL FILED BY THE ASSESSEE. THUS THE CIT(A) HA S ACCEPTED THE REMAND REPORT WITHOUT DISCUSSING THE EXPLANATIONS DETAILS AND MA TERIAL FILED BY THE ASSESSEE WHILE ADDRESSING THE ISSUE. 5 ITA NO. 2086/MUM/2011 (ASST YEAR 2006-07) 5 HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND THAT THE MATTER HAS NOT BEEN PROPERLY EXAMINED AND CONSIDERE D BY THE CIT(A) KEEPING IN VIEW OF THE EXPLANATION AND MATERIAL FILED BY THE A SSESSEE. THEREFORE IN THE INTEREST OF JUSTICE WE GIVE ONE MORE OPPORTUNITY TO THE ASS ESSEE TO EXPLAIN HIS CASE BEFORE THE CIT(A) AND THE CIT(A) DECIDE THE ISSUE ON MERI T AFTER CONSIDERING THE RELEVANT MATERIAL AND EXPLANATION OFFERED BY THE ASSESSEE. 6 WE FURTHER CLARIFY THAT THE ASSESSEE HAS TO APPEA R BEFORE THE CIT(A) WITHIN 15 DAYS FROM THE DATE OF RECEIPT OF THIS ORDER AND REC EIVE THE NOTICE OF PROCEEDINGS BEFORE THE CIT(A) IN PERSON. IF THE ASSESSEE FAILED TO APPEAR BEFORE THE CIT(A) THEN THE CIT(A) IS FREE TO TAKE HIS OWN DECISION. 7 IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THE 13 TH DAY OF JULY 2011. SD/- SD/- (PRAMOD KUMAR ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 13 TH JULY 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI