M/s. DECCAN ENTERPRISES, MUMBAI v. ACIT CIR. 19(3), MUMBAI

ITA 4112/MUM/2005 | 2001-2002
Pronouncement Date: 14-12-2010 | Result: Allowed

Appeal Details

RSA Number 411219914 RSA 2005
Assessee PAN AAAFD2751F
Bench Mumbai
Appeal Number ITA 4112/MUM/2005
Duration Of Justice 5 year(s) 6 month(s) 13 day(s)
Appellant M/s. DECCAN ENTERPRISES, MUMBAI
Respondent ACIT CIR. 19(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 14-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 14-12-2010
Date Of Final Hearing 29-11-2010
Next Hearing Date 29-11-2010
Assessment Year 2001-2002
Appeal Filed On 01-06-2005
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI BEFORE SHRI J SUDHAKAR REDDY ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO JUDICIAL MEMBER ITA NO. 4112/MUM/2005 (ASSESSMENT YEARS: 2001-02) M/S DECCAN ENTERPRISES 1A HILTOP 49 PALLI HILL BANDRA (W) MUMBAI-400050 PAN: AAAFD2751F . . APPELLANT VS ACIT CIRCLE 19(3) MUMBAI RESPONDENT APPELLANT BY : SHRI M SUBRAMANIAM RESPONDENT BY : SHRI SUMEET KUMAR O R D E R PER VIJAY PAL RAO JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 11.02.2005 OF CIT(A)-XIX MUMBAI FOR TH E ASSESSMENT YEAR 2001-02. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN RETAINING THE ADDITION OF LOANS MADE BY THE ACIT IN THE FOLLOWIN G CASES: ITA NO. 4112/MUM/2005 (ASSESSMENT YEARS: 2001-02) 2 MOTIBEN CHOTANI RS.3 00 000 BHARAJI J.CHOTANI RS.1 00 000 REKHA CHOTA NI RS.3 00 000 JADHAVJI Y CHOTANI RS.3 25 000 AMINA S MERCHANT (AMINA KATKAR) RS.1 00 000 ZIAD MERCHANT RS.1 00 000 ANAND PITAMBAR RS.1 00 000 PUSHA WADHWANI RS.25000 3. WE HAVE HEARD THE LEARNED AR AS WELL AS THE LD. DR AND CONSIDERED THE RELEVANT RECORD. AT THE OUTSET THE LEARNED AR HAS SUBMITTED THAT THE CROSS-APPEAL FILED BY THE D EPARTMENT IN ITA NO.3805/MUM/2005 HAS BEEN DECIDED BY THIS TRIBU NAL VIDE ORDER DATED 03.02.2010. HE HAS FURTHER SUBM ITTED THAT THE AO HAS MADE ADDITIONS IN RESPECT OF VARIOUS LOA N AMOUNTS. ON APPEAL THE CIT(A) HAD PARTLY ALLOWED THE CLAIM OF THE ASSESSEE AND PARTLY CONFIRMED THE ADDITION MADE BY THE AO. BOTH THE ASSESSEE AND THE REVENUE HAS CHALLEN GED THE ORDER OF THE CIT(A). WHILE DECIDING THE APPEAL OF THE REVENUE THIS TRIBUNAL HAS SET ASIDE THE ISSUE TO THE RECORD OF THE AO. ACCORDINGLY THE LEARNED AR HAS PLEADED T HAT THE ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL MAY ALS O BE SET ASIDE TO THE RECORD OF THE AO SO THAT THE ENTIRE IS SUE OF LOAN CAN BE RE-EXAMINED AND DECIDE AT THE LEVEL OF THE AO AFTER ITA NO. 4112/MUM/2005 (ASSESSMENT YEARS: 2001-02) 3 CONSIDERING ALL THE RELEVANT RECORD AND EVIDENCE TO BE PRODUCED BY THE ASSESSEE. 5. WE FIND THAT THIS TRIBUNAL WHILE DECIDING THE A PPEAL OF THE REVENUE HAS ADJUDICATED THE ISSUE IN PARAGRAPH 16 AS UNDER : 16. WE ARE UNABLE TO AGREE WITH THE ABOVE FINDINGS FOR THE SIMPLE REASON THAT ONCE THE BASIC COST INVOLVED IN ANY PROJECT IS RECOVERED THE SURPLUS WO ULD BE AUTOMATICALLY INCOME WHICH IS TO BE TAXED AS SUC H. MOREOVER THE FINDINGS OF THE LEARNED CIT(A) IS NOT ACCORDING TO ANY PRINCIPLES OF ACCOUNTING. WE DO N OT AGREE WITH THE OBSERVATIONS OF THE LEARNED CIT(A) MADE ABOVE WHILE DELETING THE ADDITION HOWEVER AS SEEN FROM THE RECORD THE ASSESSEE HAS NOT EXPLAINED ANY OF THE ASPECTS BEFORE THE AO AND AS SEEN FROM THE ORDER THERE IS NON FURNISHING OF INFORMATION BE FORE THE AO. CONSEQUENTLY HE RESORTED TO ESTIMATION OF INCOME. IN THE INTEREST OF JUSTICE WE ARE OF THE OP INION THAT THIS ISSUE ALSO CAN BE RESTORED BACK TO THE A O TO CONSIDER THE MATTER AFRESH BY GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ITS STATED O N METHOD OF ACCOUNTING AND HOW INCOMES HAVE BEEN OFFERED. ACCORDINGLY THE GROUND IS CONSIDERED ALLOWED AND THE MATTER IS RESTORED BACK TO THE AO TO CONSIDER IT AFRESH. NEEDLESS TO SAY THAT ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS CLAIMS. GROUNDS ARE TREATED AS ALLOWED. 17. IN THE RESULT THE APPEAL IS TREATED AS ALLOWE D FOR STATISTICAL PURPOSES. 6. SINCE PART OF THE LOAN ADDITIONS HAVE ALREADY BE EN SET ASIDE TO THE RECORD OF THE AO THEREFORE WE ARE OF THE VIEW THAT IT WILL BE APPROPRIATE AND PROPER IF THE EN TIRE ISSUE OF LOAN ADDITIONS IS TO BE CONSIDERED AFRESH BY THE A O AFTER TAKING INTO CONSIDERATION THE RELEVANT DETAILED INF ORMATION AND ITA NO. 4112/MUM/2005 (ASSESSMENT YEARS: 2001-02) 4 EVIDENCES TO BE FILED BY THE ASESEEE FOR PROVING TH E CLAIM OF THE LOAN AS GENUINE AND CREDITWORTHINESS OF THE CRE DITORS. ACCORDINGLY WE SET ASIDE THE ISSUE TO THE RECORD O F THE AO WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AND AFF ORD SUFFICIENT AND REASONABLE OPPORTUNITIES TO THE ASSESSEE OF BEI NG HEARD. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 14.12.2010 SD SD (J.SUDHAKAR REDDY) (VI JAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMB ER MUMBAI ON THIS 14 TH DAY OF DEC 2010 SRL:61210 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR ITAT MUMBAI