ACIT 20(2), MUMBAI v. MUKUND ENTERPRISES, MUMBAI

ITA 5405/MUM/2009 | 2006-2007
Pronouncement Date: 17-11-2011 | Result: Allowed

Appeal Details

RSA Number 540519914 RSA 2009
Assessee PAN AAAFM3419R
Bench Mumbai
Appeal Number ITA 5405/MUM/2009
Duration Of Justice 2 year(s) 1 month(s) 18 day(s)
Appellant ACIT 20(2), MUMBAI
Respondent MUKUND ENTERPRISES, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 17-11-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 17-11-2011
Date Of Final Hearing 28-09-2011
Next Hearing Date 28-09-2011
Assessment Year 2006-2007
Appeal Filed On 29-09-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B : MUMBAI BEFORE SHRI D. MANMOHAN (VICE PRESIDENT [MZ]) AND SHRI RAJENDRA SINGH (ACCOUNTANT MEMBER) ITA NO.5405/MUM/2009 ASSESSMENT YEAR : 2006-07 THE DY. COMMISSIONER OF INCOME TAX -20(2) 612 PIRAMAL CHAMBERS LALBAUG MUMBAI-400 012. ..( APPELLANT ) VS. M/S. MUKUND ENTERPRISES 40 CHANDRAGUPTA ESTATE LINK ROAD ANDHERI (W) MUMBAI-400 053. ..( RESPONDENT ) P.A. NO. (AAAFM 3419 R) C.O. NO.135/MUM/2010 ARISING OUT OF ITA NO.5405/MUM/2009 ASSESSMENT YEAR : 2006-07 M/S. MUKUND ENTERPRISES MUMBAI-400 053. ..( CROSS OBJECTOR ) VS. THE DY. COMMISSIONER OF INCOME TAX -20(2) MUMBAI-400 012. ..( APPELLANT IN APPEAL ) REVENUE BY : SHRI A. K. NAYAK RESPONDENT BY : NONE DATE OF HEARING : 17.11.2011 DATE OF PRONOUNCEMENT : 17 TH NOVEMBER 2011 ITA NO.5405 & C.O.135/M/09 A.Y:06-07 2 O R D E R PER RAJENDRA SINGH (AM). THIS APPEAL BY THE REVENUE AND CO BY ASSESSEE ARE DIRECTE D AGAINST ORDER DATED 6/7/09 OF CIT(A) FOR THE ASSESSMENT YEAR 2006- 07. THESE ARE BEING DISPOSED OF BY A SINGLE CONSOLIDATE D ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ONLY DISPUTE RAISED IN THESE APPEALS IS REGARDI NG DISALLOWANCE OF LABOUR CHARGES. THE AO NOTED THAT THE ASSESSEE HAD CLAIMED DEDUCTION OF RS.2 43 48 056/- ON ACCOUNT OF LAB OUR CHARGES. ON EXAMINATION OF THE BOOKS OF ACCOUNT THE AO NOTED T HAT THE LABOUR CHARGES WHICH WERE PAID IN CASH WERE NOT SUPPORTED BY VOU CHERS. THE ASSESSEE EXPLAINED THAT THE LABOUR VOUCHERS COULD NOT BE PRODUCED AS THE SAME WERE KEPT AT SITES WHERE THESE WERE PERIODICALLY REQUIRED BY THE INSPECTORS FROM THE OFFICE OF LABOUR CO MMISSIONER. THE ASSESSEE ALSO SUBMITTED THAT THE VOUCHERS WOULD BE PROD UCED IF FURTHER TIME OF TEN DAYS WAS PROVIDED. THE AO HOWEV ER DID NOT GIVE ANY FURTHER TIME ON THE GROUND THAT SUFFICIENT OPPORT UNITY HAD ALREADY BEEN PROVIDED TO THE ASSESSEE TO PRODUCE THE VOUCHERS. HE THEREFORE ESTIMATED THE DISALLOWANCE AT THE RATE OF 2 0% OF LABOUR CHARGES AMOUNTING TO RS.48 69 611/-. ITA NO.5405 & C.O.135/M/09 A.Y:06-07 3 2.1 IN APPEAL THE ASSESSEE SUBMITTED THAT THE AO HAD NOT PROVIDED SUFFICIENT OPPORTUNITY TO PRODUCE THE VOUCHERS. IT WAS ALSO SUBMITTED THAT THE AO HAD NO ADVERSE MATERIAL TO MAKE ESTIMATED DISALLOWANCE. THE ASSESSEE PRODUCED THE BILLS AND VOUCHERS IN RESPECT OF L ABOUR CHARGES ALONG WITH TDS CERTIFICATES IN FORM 16A BEFORE T HE CIT(A) WHO ON EXAMINATION OF THE SAME NOTED THAT IN CERTAIN CASES THE LABOUR CHARGES WERE WITHOUT PROPER ADDRESS OF THE PARTIES INVOL VED. THE CIT(A) OBSERVED THAT CROSS VERIFICATION OF BILLS AND VOU CHERS WAS NOT FEASIBLE AS ADMITTEDLY THESE WERE KEPT AT DIFFERENT SI TES. THE CIT(A) THEREFORE ON ESTIMATE UPHELD THE DISALLOWANCE AT 5% O F LABOUR CHARGES AMOUNTING TO RS.4 02 473/-. AGGRIEVED BY THE DECISION OF CIT(A) BOTH THE PARTIES ARE IN APPEAL. WHEREAS THE REVENUE IS AGGRIEVED WITH THE DECISION OF CIT(A) TO ALLOW SUBSTAN TIAL RELIEF THE ASSESSEE HAS DISPUTED THE CONFIRMATION OF ADDITION TO THE TUNE OF RS.4 02 473/-. 3. AT THE TIME OF HEARING OF THE APPEAL NO ONE APP EARED ON BEHALF OF THE ASSESSEE THOUGH ON THE LAST DATE OF HEARING THE A DJOURNMENT HAD BEEN GIVEN AT THE REQUEST OF THE ASSESSEE. THE ASSESSEE HAD SOUGHT ADJOURNMENT ON EARLIER OCCASIONS ALSO. IT CAN THE REFORE BE REASONABLY CONCLUDED THAT THE ASSESSEE IS NOT INTEREST IN PU RSUING THE APPEAL. WE ACCORDINGLY PROCEED TO DECIDE THE APPEAL O N THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE L D. D.R WHO ITA NO.5405 & C.O.135/M/09 A.Y:06-07 4 SUPPORTED THE ORDER OF AO AND ALSO POINTED OUT THAT C IT(A) HAD ADMITTED ADDITIONAL EVIDENCE WITHOUT PROVIDING ANY O PPORTUNITY TO THE AO. 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. THE DISPUTE IS REGARDING DISALLOWANCE OUT O F LABOUR CHARGES. THERE IS NO DISPUTE THAT THE ASSESSEE HAD NOT PRODUCED SUPP ORTING BILLS AND VOUCHERS IN RELATION TO LABOUR CHARGES BEFORE THE AO. THE BILLS AND VOUCHERS ALONG WITH TDS CERTIFICATES WERE PRODU CED BEFORE CIT(A) FOR THE FIRST TIME WHO AFTER ADMITTING THE SAM E HAVE GIVEN SUBSTANTIAL RELIEF. THE CIT(A) WAS REQUIRED TO GIVE O PPORTUNITY TO THE AO IN RESPECT OF THE FRESH EVIDENCE WHICH HAS NOT BEEN DO NE AND WHICH IS IN VIOLATION OF RULE 46A OF THE INCOME TAX RU LES. WE THEREFORE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO AO FOR PASSING A FRESH ORDER AFTER NECESSARY EXAMINATION AND AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT THE APPEAL OF THE REVENUE AS WELL A S CROSS OBJECTION OF THE ASSESSEE BOTH ARE ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.11.2011. SD/- SD/- (D. MANMOHAN) (RAJENDRA SINGH ) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI DATED: 17.11.2011. JV. ITA NO.5405 & C.O.135/M/09 A.Y:06-07 5 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.