ITO 14(1)(3), MUMBAI v. SHIVA CORPORATION, MUMBAI

ITA 3913/MUM/2009 | misc
Pronouncement Date: 06-10-2010 | Result: Dismissed

Appeal Details

RSA Number 391319914 RSA 2009
Assessee PAN AABFS0293E
Bench Mumbai
Appeal Number ITA 3913/MUM/2009
Duration Of Justice 1 year(s) 3 month(s) 18 day(s)
Appellant ITO 14(1)(3), MUMBAI
Respondent SHIVA CORPORATION, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 06-10-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted J
Tribunal Order Date 06-10-2010
Date Of Final Hearing 22-09-2010
Next Hearing Date 22-09-2010
Assessment Year misc
Appeal Filed On 18-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH MUMBAI BEFORE SHRI D.K. AGARWAL JUDICIAL MEMBER AND SHRI PRAMOD KUMAR ACCOUNTANT MEMBER ITA NO. 3913/MUM/2009 (ASSESSMENT YEAR: 1986-87) INCOME TAX OFFICER - 14(1)(3) M/S. SHIVA CORPORATI ON 203 2ND FLOOR EARNEST HOUSE 301 STANDARD HOUSE NARIMAN POINT MUMBAI 400021 VS. 83 QUEENS ROAD MUMBAI 400002 PAN - AABFS 0293 E APPELLANT RESPONDENT APPELLANT BY: SHRI SURENDRA KUMAR RESPONDENT BY: SHRI S.C. SURANA O R D E R PER D.K. AGARWAL J.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER DATED 02.04.2009 PASSED BY THE LEARNED CIT(A) FOR A .Y. 1986-87. 2. BRIEFLY STATED UNDISPUTED FACTS OF THE CASE AS MENT IONED BY THE LEARNED CIT(A) IN PARA 3 OF HIS ORDER ARE REPRODUCE D AS UNDER: - 3. BRIEFLY STATED FACTS ARE THAT THE APPELLANT FIR M CONSISTING OF TWO PARTNERS AND ENGAGED IN THE BUSINESS OF TRADING IN SYNTHETIC POLYESTER WASTE AS WELL AS ACTIVITIES OF MANUFACTURING POLYST ER COTTON BLENDED SILVERS. THE RETURN OF INCOME ORIGINALLY WAS FILED BY THE APPELLANT ON 30- 06-86 DECLARING TOTAL INCOME OF RS.61 300/-. THE SA ME WAS PROCESSED U/S. 143(1) OF THE I.T. ACT. SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY AND FINALLY THE ASSESSMENT WAS COMPLETED U /S. 143(3) OF THE I.T. ACT 1961 ON 29-03-89 BY DETERMINING TOTAL INC OME AT RS.39 78 630/- . WHILE DETERMINING THIS INCOME THE AO MADE VARIOU S ADDITIONS. AGGRIEVED THE APPELLANT WENT IN APPEAL BEFORE THE CIT(A) WHO VIDE ORDER NO. CIT(A)/ASSESSMENT PROCEEDINGS-113A/89-90 DATED 3-12-90 SET ASIDE THE ADDITIONS WITH THE DIRECTION TO REDO THE ASSESSMENT AS PER THE DIRECTIONS GIVEN THEREIN. THE DEPARTMENT FILED AN A PPEAL AGAINST THE CIT(A)S ORDER AND THE HON'BLE ITAT VIDE ORDER BEAR ING ITA NO. 1964/MUM/91 DATED 27-6-05 SET ASIDE THE ORDER OF TH E CIT(A) DATED 3- 12-90 RESTORING THE MATTER BACK TO THE AO IN RESPEC T OF ADDITIONS MADE OF RS.2 80 154 ON ACCOUNT OF SUPPRESSION OF SALES AND RS.5 23 830/- AND ITA NO. 3913/MUM/2009 M/S. SHIVA CORPORATION 2 RS.11 94 342/- ON ACCOUNT OF INFLATION OF PURCHASES . AS DIRECTED BY THE ITAT THE ASSESSMENT WAS REFRAMED AFTER ALLOWING TH E ASSESSEE SUFFICIENT OPPORTUNITIES BY ISSUE OF VARIOUS NOTICE S FROM 28-9-05 TO 15-11- 06. IN THE MEANTIME AS DIRECTED BY THE CIT(A) VIDE ORDER DATED 3-12-90 THE ASSESSMENT WAS REDONE BY THE AO VIDE ORDER U/S. 143(3) R.W.S. 250 DATED 30.03.93 DETERMINING THE INCOME AT RS.21 02 8 80/- BY MAKING VARIOUS ADDITIONS. THE ASSESSEE AGAIN WENT IN APPEA L AGAINST THE SAID ORDER AND THE CIT(A) VIDE ORDER DATED 18-8-04 DELET ED THE ADDITIONS MADE BY THE AO. THE DEPARTMENT FILED SECOND APPEAL AGAINST THE SAID ORDER OF THE CIT(A) BEFORE THE ITAT . HOWEVER THE ABOVE ADDITIONS WERE AGAIN REDONE BY T HE A.O. IN HIS IMPUGNED ORDER PASSED UNDER SECTION 143(3) R.W.S. 250 OF THE I.T. ACT 1961 (THE ACT) DATED 20.03.2007. THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE LEARNED CIT(A) AFTER CONSIDERING THE FOLLOWING THE TRIBUNA L ORDER IN ITO VS. M/S. SHIVA TRADING CORPORATION IN ITA NOS. 7738 7739 & 7740/MUM/2004 FOR ASSESSMENT YEARS 1983-84 1984-85 & 1986-87 DATED 2 2 ND JULY 2008 DELETED THE ADDITIONS MADE BY THE A.O. AND ALLOWED THE APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE CIT(A) THE REVE NUE IS IN APPEAL BEFORE US TAKING FOLLOWING GROUNDS OF APPEAL: - 1. THE ORDER OF THE CIT(A) IS OPPOSED TO LAW AND F ACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE CIT(A) ERRED IN LAW DELETING THE ADDITION OF RS.2 8 0 154/- MADE ON ACCOUNT OF DIFFERENCE IN RATES OF SALES MADE TO VAR IOUS DHANNDHANIA GROUP AND TREATING THE SAME AS SUPPRESS ION OF SALES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE CIT(A) ERRED IN LAW DELETING THE ADDITION OF RS.5 2 3 830/- MADE ON ACCOUNT OF INFLATION IN PURCHASES BY ROUTING THROUG H JAIN CONCERNS. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE CIT(A) ERRED IN LAW DELETING THE ADDITION OF RS.11 94 342/- MADE ON ACCOUNT OF INFLATION IN PURCHASES BY ROUTING THROUG H DEVANSHU TRADING & FINANCE CO. LTD. & M/S. TIBREWALA TRADERS P. LTD. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE CIT(A) ERRED IN LAW DELETING THE ADDITION OF RS.45 354/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT + INTEREST. 6. FOR THESE AND OTHER REASONS MAY BE URGED AT THE TIME OF HEARING IT IS REQUESTED THAT THE ORDER OF THE CIT(A) MAY BE QU ASHED AND THAT OF THE AO RESTORED. 4. AT THE TIME OF HEARING THE LEARNED D.R. SUPPORTS TH E ORDER OF THE A.O. ITA NO. 3913/MUM/2009 M/S. SHIVA CORPORATION 3 5. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE ASSE SSEE WHILE RELYING ON THE ORDER OF THE LEARNED CIT(A) SUBMITS THAT THE TRIBUNAL IN THE REVENUE APPEAL (SUPRA) HAS DELETED SIMILAR ADDITIONS THERE FORE THE LEARNED CIT(A) WAS FULLY JUSTIFIED IN DELETING THE ADDITIONS MADE BY THE A.O. HE THEREFORE SUBMITS THAT THE ORDER PASSED BY THE CIT(A) BE UPHE LD. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OR THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE FACTS ARE NOT IN DISPUTE. WE FURTHER FIND THAT IT IS ALSO NOT IN DIS PUTE THAT ON SIMILAR GROUNDS RAISED BY THE REVENUE FOR A.Y. 1986-87 THE TRIBUNAL VIDE ORDER DATED 22.07.2008 WHILE UPHOLDING THE ORDER OF THE LEARNED CIT(A) DISMISSED THE APPEAL FILED BY THE REVENUE VIDE PARA 21 TO 23 OF T HE ORDER WHICH ARE REPRODUCED AS UNDER: - 21. THE ISSUE IN GROUND NO. 1 RAISED BY THE REVENU E IS AGAINST THE SUPPRESSION OF SALES IS DISMISSED IN VIEW OF OUR DI SCUSSION HEREINABOVE. SIMILARLY GROUND NO. 2 & 3 RAISED BY THE REVENUE AG AINST THE DELETION OF ADDITION MADE ON ACCOUNT OF INFLATION IN PURCHASES ROUTED THROUGH DIFFERENCE CONCERNS IS ALSO DISMISSED IN VIEW OF OU R DISCUSSION HEREINABOVE. 22. THE ISSUE IN THE GROUND OF APPEAL NO. 4 RAISED BY THE REVENUE IS AGAINST THE DELETION MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT AND INTEREST. THE CIT(A) WHILE DECIDING THE ISSUE OF AD DITION OF ` 45 354/- ON ACCOUNT OF CASH CREDITS HAD OBSERVED THAT THE ASSES SEE HAD SUBMITTED THE CONFIRMATION LETTERS FROM MRS. USHA R. KHANDELW AL OF RS.25 000/- & MRS. HAREN KAUR OF RS.20 000/-. BOTH THE SAID LOANS WERE RECEIVED BY ACCOUNT PAYEE CHEQUES AND BOTH THE LOAN CREDITORS W ERE ASSESSED TO TAX AND THEIR PERMANENT ACCOUNT NUMBER WERE PROVIDED ON THE CONFIRMATION LETTERS. THE CIT(A) THUS HELD THAT SINCE THE ASSESS EE HAS PROVED THE IDENTIFY OF THE LENDER CREDITWORTHINESS OF THE LEN DER AND GENUINENESS OF THE TRANSACTION THERE IS NO MERIT IN MAKING ANY AD DITION ON ACCOUNT OF CASH CREDIT AND INTEREST THEREON. 23. THE REVENUE HAS FAILED TO BRING ON RECORD ANY F ACTS TO THE CONTRARY. WE FIND NO MERIT IN THE GROUND OF APPEAL RAISED BY THE REVENUE IN VIEW OF THE FACT THAT THE IDENTITY AND CREDITWOR THINESS OF THE LENDER AND THE GENUINENESS OF THE TRANSACTION HAS BEEN EST ABLISHED BEFORE THE CIT(A) BY THE ASSESSEE BY FURNISHING THE NECESSARY CONFIRMATION LETTERS IN THIS REGARD. ACCORDINGLY WE UPHOLD THE ORDER OF THE CIT(A) IN THIS ISSUE AND GROUND NO. 4 RAISED BY THE REVENUE IS DIS MISSED. IN THE ABSENCE OF ANY CONTRARY MATERIAL PLACED ON R ECORD BY THE REVENUE WE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL HO LD THAT THE APPEAL FILED BY ITA NO. 3913/MUM/2009 M/S. SHIVA CORPORATION 4 THE REVENUE IS DEVOID OF ANY MERIT AND ACCORDINGLY SAME IS DISMISSED BEING INFRUCTUOUS. 7. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH OCTOBER 2010. SD/- SD/- (PRAMOD KUMAR) (D.K. AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 6 TH OCTOBER 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XIV MUMBAI 4. THE CIT XIV MUMBAI CITY 5. THE DR J BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.