HYDERALI GOLA, MUMBAI v. ITO WD 11(1)(2), MUMBAI

ITA 3178/MUM/2009 | 2002-2003
Pronouncement Date: 26-07-2010 | Result: Partly Allowed

Appeal Details

RSA Number 317819914 RSA 2009
Assessee PAN AABPG5372J
Bench Mumbai
Appeal Number ITA 3178/MUM/2009
Duration Of Justice 1 year(s) 2 month(s) 12 day(s)
Appellant HYDERALI GOLA, MUMBAI
Respondent ITO WD 11(1)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 26-07-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted H
Tribunal Order Date 26-07-2010
Date Of Final Hearing 26-07-2010
Next Hearing Date 26-07-2010
Assessment Year 2002-2003
Appeal Filed On 14-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI A.L. GEHLO T (AM) ITA NO.3178/MUM/2009 ASSESSMENT YEAR : 2002-03 MR. HYDERALI GOLA PROP. OF GOLA BROTHERS C/O. 5-J NAAZ CINEMA BLDG. LAMINGTON ROAD MUMBAI-400 044. ..( APPELLANT ) P.A. NO. (AABPG 5372 J) VS. INCOME TAX OFFICER WARD-11(1)(2) AAYAKAR BHAVAN MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI PANKAJ TOPRANI RESPONDENT BY : SHRI S. K. MAHAPATRA O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 18.11.2008 PASSED BY THE LD. CIT(A) FOR T HE ASSESSMENT YEAR 2002-03. ITA NO.3178/M/09 A.Y:02-03 2 2. IT IS OBSERVED THAT THE APPEAL FILED BY THE ASSESSEE I S TIME BARRED BY 44 DAYS. 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSE SSEE FILED AN AFFIDAVIT DATED 19.4.2010 OF THE ASSESSEE TO STATE ON OA TH THAT THE DELAY OF 44 DAYS HAS OCCURRED ON ACCOUNT OF ON-GOING DISP UTE WITH ASSESSEE'S BROTHERS AS A RESULT OF WHICH HE WAS CONSISTENTLY UND ER MENTAL STRESS AND MENTAL AGONY AND HENCE HE COULD NOT GI VE THE RELEVANT PAPERS TO HIS CHARTERED ACCOUNTANTS M/S. SHARMA SHAH AND ASSOCIATES. IT WAS THEREFORE PRAYED THAT THE DELAY OCCUR RED ON ACCOUNT OF FACTORS BEYOND CONTROL BE CONDONED AND THE REL IANCE WAS ALSO PLACED IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI AND OTHERS (1987) 167 ITR 471 (SC). ON THE OTHER HAND TH E LD. DR. DID NOT SERIOUSLY OBJECT TO THE CONDONATION OF THE DELAY. THIS B EING SO AND IN THE ABSENCE OF ANY CONTRARY MATERIAL PLACED ON RECORD B Y THE REVENUE AND KEEPING IN VIEW THAT IT HAS BEEN CONSISTENTLY HELD BY THE HONBLE APEX COURT THAT IN THE MATTER OF CONDONATION OF DELAY A LIBERAL AND PRAGMATIC VIEW SHOULD BE TAKEN WE ARE OF THE VIEW TH AT THE REASONS GIVEN BY THE APPELLANT FOR THE DELAY APPEARS TO BE SU FFICIENT CAUSE AND ACCORDINGLY THE DELAY IS CONDONED. 4. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE AN INDIVIDUAL IS ENGAGED IN THE BUSINESS OF FILM DISTRIBU TION. THE RETURN ITA NO.3178/M/09 A.Y:02-03 3 WAS FILED DECLARING TOTAL INCOME AT RS.1 31 968/-. DUR ING THE COURSE OF ASSESSMENT IT WAS INTERALIA OBSERVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS DEBITED RS.24 37 628/- AGAINST PRINTING EXPENSES AND RS.13 88 493/- AS PUBLICITY EXPENSES. THE ASSESSEE WA S ASKED TO FILE DETAILS WITH SUPPORTING EVIDENCE. HOWEVER THE ASSESSEE FILED PART BILLS OF RS.15 70 271/-. APART FROM THIS CONFIRMATION FROM TWO PARTIES WERE ALSO RECEIVED. THEREFORE THE ASSESSING OFFICER ALLO WED RS.20 24 893/- AND DISALLOWED BALANCE AMOUNT RS.18 01 228/- AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE . ON APPEAL THE ASSESSEE FILED CERTAIN DETAILS BEFORE THE LD. CIT(A). THE LD. CIT(A) ASKED FOR REMAND REPORT FROM THE ASSESSING OFFICER. THE LD. CIT(A ) IN THE ABSENCE OF ANY EXPLANATION OF THE ASSESSEE IN RESPECT OF DI SCREPANCIES NOTED BY THE ASSESSING OFFICER IN THE REMAND REPORT CONF IRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 5. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE IS IN APPEAL BEFORE US TAKING AS MANY AS NINE GROUNDS OF APPE AL. HOWEVER AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT HE IS PRESSING GROUND NO.3 ONLY WHICH IS AGAINST THE SUSTENA NCE OF DISALLOWANCE OF PUBLICITY AND PRINTING EXPENSES RS.18 01 228/- AND DOES NOT WANT TO PRESS OTHER GROUNDS. ITA NO.3178/M/09 A.Y:02-03 4 6. HE FURTHER SUBMITS THAT DURING THE REMAND PROCEEDING THE ASSESSEE HAS FILED A LETTER DATED 16.11.2007 ENCLOSING COPI ES OF BILLS/DOCUMENTS PERTAINING TO PUBLICITY EXPENSES RS.13 8 8 493/- AND PRINTING EXPENSES RS.24 37 628/- APPEARING AT PAGE 15- 60 OF THE ASSESSEE'S PAPER BOOK. HE FURTHER SUBMITS THAT LETTERS APPE ARING AT PAGE 61 TO 69 OF THE ASSESSEE'S PAPER BOOK WERE FILED BY THE CONCERNED PARTIES WITH THE ASSESSING OFFICER AND THE CERTIFI CATES DATED 7.4.2010 FROM MADRAS SAFIRE PRINTERS AND SAFIRE LITHO GRAPHERS APPEARING AT PAGE 70-71 OF THE ASSESSEE'S PAPER BOOK AR E PRODUCED BEFORE THE TRIBUNAL FOR THE FIRST TIME. HE SOUGHT LEA VE OF THE TRIBUNAL UNDER RULE 29 OF THE APPELLATE TRIBUNAL RULES 1963 FOR ADMISSION OF SAME THE AS THE SAME HAVE BEEN PROCURED FROM THE SAID P ARTIES AFTER PERSISTENT PERSUASION AS EARLIER THEY HAD DENIED TRANSACT IONS WITH THE ASSESSEE. HE FURTHER SUBMITS THAT SINCE THE EVIDENCE FILED BY THE ASSESSEE HAS NOT BEEN PROPERLY CONSIDERED THEREFORE IN T HE INTEREST OF JUSTICE THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. 7. ON THE OTHER HAND THE LD. DR WHILE RELYING ON TH E ORDER OF THE ASSESSING OFFICER AND THE CIT(A) SUBMITS THAT HE HAS NO OBJ ECTION IF THE ISSUE IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. ITA NO.3178/M/09 A.Y:02-03 5 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE DISALLOWANCE OF RS.18 01 228/- OUT OF PUBLICITY AND PRI NTING EXPENSES WAS MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE HAS NOT FILED SUPPORTING EVIDENCE OF THE SAME. THE LD. CIT(A) MERELY BECAUSE THE ASSESSEE HAS NOT FILED ANY REPLY AGAINST THE R EMAND REPORT SUBMITTED BY THE ASSESSING OFFICER HAS CONFIRMED T HE DISALLOWANCE DESPITE THE FACT THAT RELEVANT MATERIAL W AS AVAILABLE BEFORE HIM. THIS BEING SO AND KEEPING IN VIEW THAT T HE ASSESSEE HAS FILED TWO CERTIFICATES DATED 7.4.2010 OBTAINED FROM M ADRAS SAFIRE PRINTERS AND SAFIRE LITHOGRAPHERS WHICH WERE NOT AVAI LABLE BEFORE THE ASSESSING OFFICER WE ARE OF THE VIEW THAT IN THE INTERE ST OF JUSTICE THE MATTER SHOULD GO BACK TO THE FILE OF ASSESSING OFFICER AND ACCORDINGLY WE SET ASIDE THE ORDERS PASSED BY THE REVENUE AUTHORITIE S ON THIS ACCOUNT AND SEND BACK THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER WHO SHALL EXAMINE THE ISSUE AFRESH IN THE LIGHT OF OUR OBSERVATIONS HEREINABOVE AND ACCORDINGLY TO LAW AFTER PROVIDING RE ASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND TAKEN BY THE ASSESSEE IS THEREFORE PARTLY ALLOWED FOR STATISTICAL PUR POSES. 9. SINCE OTHER GROUNDS HAVE NOT BEEN PRESSED BY THE LD. COUNSEL FOR THE ASSESSEE AND IN THE ABSENCE OF ANY SUPPORTING MATE RIAL PLACED ITA NO.3178/M/09 A.Y:02-03 6 ON RECORD BY THE LD. COUNSEL FOR THE ASSESSEE THE GROUND S TAKEN BY THE ASSESSEE ARE THEREFORE REJECTED BEING NOT PRESSED. 10. IN THE RESULT ASSESSEE'S APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26.7.2010. SD/- SD/- (A.L. GEHLOT) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 26.7.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI. ITA NO.3178/M/09 A.Y:02-03 7 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 26.7.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 26.7.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 26.7.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 29.7.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER