ITO 17(3)(3), MUMBAI v. MOHMAD AKHTAR SHAIKH, MUMBAI

ITA 3110/MUM/2012 | 2008-2009
Pronouncement Date: 21-04-2014 | Result: Allowed

Appeal Details

RSA Number 311019914 RSA 2012
Assessee PAN AIWPS3261K
Bench Mumbai
Appeal Number ITA 3110/MUM/2012
Duration Of Justice 1 year(s) 11 month(s) 14 day(s)
Appellant ITO 17(3)(3), MUMBAI
Respondent MOHMAD AKHTAR SHAIKH, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-04-2014
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 21-04-2014
Date Of Final Hearing 21-04-2014
Next Hearing Date 21-04-2014
Assessment Year 2008-2009
Appeal Filed On 07-05-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH MUM BAI . . BEFORE SHRI I. P. BANSAL JM AND SHRI SANJAY ARORA AM ./ I.T.A. NO. 3110/MUM/2012 ( / ASSESSMENT YEAR: 2008-09) THE ITO 17(3)(3) 613 PIRAMAL CHAMBERS LALBAUG MUMBAI-400 012 / VS. MOHMAD AKHTAR SHAIKH 222-C PRABHATWADI COMPOUND BELASIS ROAD NAGPADA MUMBAI-400 008 ./ ./PAN/GIR NO. AIWPS 3261 K ( /APPELLANT ) : ( !' / RESPONDENT ) # $ / APPELLANT BY : SHRI ASHIM K. MODI !' # $ / RESPONDENT BY : SHRI DHIREN P. SHROFF % &'( # )* / DATE OF HEARING : 21.04.2014 + - # )* / DATE OF PRONOUNCEMENT : 21.04.2014 . / O R D E R PER SANJAY ARORA A. M.: THIS IS AN APPEAL BY THE REVENUE DIRECTED AGAINST T HE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-29 MUMBAI (CIT(A) FOR SH ORT) DATED 29.02.2012 PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSES SMENT U/S.143(3) OF THE INCOME TAX ACT 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMEN T YEAR (A.Y.) 2008-09 VIDE ORDER DATED 27.12.2010. 2. THE ONLY ISSUE ARISING IN THE INSTANT APPEAL IS THE MAINTAINABILITY IN LAW OF THE DELETION OF THE ADDITION BY THE LD. CIT(A) OF THE I MPUGNED SUM OF RS.42 38 445/- 2 ITA NO. 3110/MUM/2012 (A.Y. 2008-09) ITO VS. MOHMAD AKHTAR SHAIKH REPRESENTING CREDITS ON ACCOUNT OF PURCHASES DURING THE YEAR (RS.40 14 332/-) AND LIABILITIES OTHERWISE REFLECTED IN ACCOUNTS AS CARR IED OVER FROM AN EARLIER YEAR (RS.12 26 088/-). THE ASSESSING OFFICER (A.O.) PROC EEDED TO VERIFY THE SAME BY POSTING NOTICES U/S.133(6) OF THE ACT TO THE CREDITORS. THE SAME CAME BACK UN-SERVED ON THE PURCHASE CREDITORS WHILE THERE WERE DIFFERENCES IN THE AMOUNTS AS CONFIRMED BY THE OTHER PARTIES AS IT APPEARS AT RS.2 24 113/-. ACCORDING LY THE ENTIRE UNCONFIRMED CREDIT WAS ADDED AS THE ASSESSEES INCOME FOR THE CURRENT YEAR U/S.68 TREATING IT AS UNEXPLAINED. THE ASSESSEE FURNISHING ADDITIONAL EVIDENCE/S BEFORE TH E LD. CIT(A) HE ADMITTED THE SAME AND BEING SATISFIED DELETED THE ADDITION. AGGRIEV ED THE REVENUE IS IN APPEAL. 3. THE REVENUES GRIEVANCE AS PROJECTED PER ITS GR OUNDS OF APPEAL AND EVEN AS ARGUED BEFORE US IS PRIMARILY IN TERMS OF NON-OBSE RVING THE PROCEDURE SPECIFIED UNDER RULE 46A OF THE INCOME TAX RULES 1962 BY THE FIRST APPELLATE AUTHORITY. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD. THE LD. CIT(A) HAS NOT RECORDED ANY REASON AS IS REQUIRED TO UNDER RU LE 46A(1) FOR ADMISSION OF THE ADDITIONAL EVIDENCE/S. EVEN SO ASSUMING THE ASSESS EE BEING PREVENTED FROM PRODUCING THE SAME ON ACCOUNT OF PAUCITY OF TIME ALLOWED FOR THE PURPOSE AS EXPLAINED BY THE LD. AUTHORIZED REPRESENTATIVE (AR) BEFORE US HE OUGHT TO HAVE ALLOWED REASONABLE OPPORTUNITY TO THE A.O. TO EXAMINE AS WELL AS MEET THE SAME I.E. IN CASE HE DESIRED TO DULY CONSIDERING HIS OBSERVATIONS IF ANY THERE-UP ON (R.46A(3)). THE REVENUES GRIEVANCE IS THUS JUSTIFIED. UNDER THE CIRCUMSTANCES WE THEREFORE ONLY CONSIDER IT FIT AND PROPER BOTH LEGALLY AS WELL AS IN THE INTEREST OF JUSTICE AND FAIRNESS THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE A.O. FOR A DECISION IN ACCORDANCE WITH LAW A FTER ALLOWING PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE BEFORE HIM AND WHICH HE SHALL PER A SPEAKING ORDER ISSUING DEFINITE FINDINGS OF FACT IN-AS-MUCH AS WE DISCERN THE MATTER TO BE ESSENTIALLY FACTUAL. WE DECIDE ACCORDINGLY. 3 ITA NO. 3110/MUM/2012 (A.Y. 2008-09) ITO VS. MOHMAD AKHTAR SHAIKH 5. IN THE RESULT THE REVENUES APPEAL IS ALLOWED O N THE AFORESAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 21 201 4 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER % ( MUMBAI; /& DATED : 21.04.2014 '.&../ ROSHANI SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. % 0) ( ) / THE CIT(A) 4. % 0) / CIT - CONCERNED 5. 3'45 !)&67 * 67- % ( / DR ITAT MUMBAI 6. 589 :( / GUARD FILE ! ( / BY ORDER )/(* + (DY./ASSTT. REGISTRAR) % ( / ITAT MUMBAI