ITO 18(2)(2), MUMBAI v. MANOJ L. SHETH (HUF), MUMBAI

ITA 5593/MUM/2011 | 2008-2009
Pronouncement Date: 15-10-2013 | Result: Allowed

Appeal Details

RSA Number 559319914 RSA 2011
Assessee PAN AAFHS7847J
Bench Mumbai
Appeal Number ITA 5593/MUM/2011
Duration Of Justice 2 year(s) 2 month(s) 14 day(s)
Appellant ITO 18(2)(2), MUMBAI
Respondent MANOJ L. SHETH (HUF), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 15-10-2013
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 15-10-2013
Date Of Final Hearing 29-10-2012
Next Hearing Date 29-10-2012
Assessment Year 2008-2009
Appeal Filed On 01-08-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH MUM BAI BEFORE SHRI D. MANMOHAN VP AND SHRI SANJAY ARORA AM ! I.T.A. NO. 5593/MUM/2011 ( / ASSESSMENT YEAR: 2008-09) INCOME-TAX OFFICER-18(2)(2) ROOM NO.111 1 ST FLOOR PIRAMAL CHAMBERS PAREL MUMBAI-400 012 ! VS. MANOJ L. SHETH (HUF) 225 JAY GOPAL INDL. ESTATE BHAVANI SHANKAR X ROAD DADAR (WEST) MUMBAI-28 '! # ./PAN/GIR NO. AAFHS 7847 J ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) %&! CO NO. 102/MUM/2012 ( / ASSESSMENT YEAR: 2008-09) MANOJ L. SHETH (HUF) 225 JAY GOPAL INDL. ESTATE BHAVANI SHANKAR X ROAD DADAR (WEST) MUMBAI-28 ! VS. INCOME-TAX OFFICER-18(2)(2) ROOM NO.111 1 ST FLOOR PIRAMAL CHAMBERS PAREL MUMBAI-400 012 '! # ./PAN/GIR NO. AAFHS 7847 J ( %& /CROSS OBJECTOR ) : ( %&'$ / RESPONDENT ) '() / REVENUE BY : SHRI DIVYA BAJPAI *+ -.() / ASSESSEE BY : SHRI PRASHANT SHAH / '0(.1 / DATE OF HEARING : 15.10.2013 234(.1 / DATE OF PRONOUNCEMENT : 15.10.2013 2 ITA NO. 5593/M/11 & CO NO. 102/M/12 MANOJ L. SHETH (HUF)(A.Y. 2008-09) 5! O R D E R PER SANJAY ARORA A. M.: THIS IS AN APPEAL BY THE REVENUE AND THE CROSS OBJE CTION BY THE ASSESSEE ARISING OUT OF THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-29 MUMBAI (CIT(A) FOR SHORT) DATED 27.05.2011 PARTLY ALLOWING THE AS SESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT 1961 ( THE ACT HEREINAFTER) DATED 30.12.2010 FOR THE ASSESSMENT YEAR (A.Y.) 2008-09. 2. THE REVENUES PRINCIPAL OBJECTION AS PROJECTED PER THE FIRST TWO GROUNDS OF ITS APPEAL IS THE CONTRAVENTION OF THE PRINCIPLE OF NA TURAL JUSTICE AS EMBEDDED IN RULE 46A OF THE INCOME TAX RULES 1962 (THE RULES HEREINAFTER ) BY THE LD. CIT(A); THE FIRST APPELLATE AUTHORITY ADMITTING ADDITIONAL EVIDENCES WITHOUT RE CORDING HIS REASONS TOWARD NON- FURNISHING OF THE SAME BEFORE THE ASSESSING AUTHORI TY AND SECONDLY WITHOUT ALLOWING HIM AN OPPORTUNITY TO EXAMINE AND MEET THE SAME. THE RE VENUES THIRD GROUND DISPUTES THE DELETION OF THE DISALLOWANCES I.E. ON MERITS WHI LE THE ASSESSEES CO AGITATES THE PART SUSTENANCE THEREOF. AGGRIEVED BOTH THE PARTIES ARE IN APPEAL. 3. BEFORE US IT WAS A COMMON CONTENTION OF THE PAR TIES THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER (A.O.) FOR ADJUDICATION AFRESH INASMUCH AS ADMITTEDLY THERE HAD BEEN NO PROPER EXAMINATION OF THE DETAILS AT HIS END. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD. 4.1 AS APPARENT FROM A MERE READING OF THE ASSESSME NT ORDER THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS DESPITE SEVERAL NOTICES (AND TOWARD WHICH THE A.O. WAS IN FACT CONSTRAINED TO ISSUE PENALTY PROCEEDINGS U/S. 271(1 )(B) OF THE ACT) PARTICIPATING IN THE ASSESSMENT PROCEEDINGS ONLY AT THE FAG-END OF THE T IME PERIOD AVAILABLE FOR THE COMPLETION OF THE ASSESSMENT I.E. 31.12.2010. ACC ORDINGLY PROPER VERIFICATION OF THE SAME COULD NOT BE MADE WHICH WAS ALSO HINDERED BY LACK OF FULL AND COMPLETE DETAILS. AT THE FIRST APPELLATE STAGE THE LD. CIT(A) OBSERVED SOME FACTUAL INCONSISTENCY/S IN THE 3 ITA NO. 5593/M/11 & CO NO. 102/M/12 MANOJ L. SHETH (HUF)(A.Y. 2008-09) OBSERVATIONS BY THE A.O. AS RECORDED IN THE ASSESSM ENT ORDER. HE ACCORDINGLY CONSIDERED THE ISSUE ON MERITS ALLOWING THE ASSESS EE OPPORTUNITY TO STATE ITS CASE. 4.2 ADMITTEDLY THEREFORE THERE HAS BEEN NO PROPER EXAMINATION AT THE END OF THE A.O. WHO HAS ALSO NOT BEEN HEARD AND THUS ALLOWED TO STATE THE REVENUES CASE IN THE MATTER BY THE FIRST APPELLATE AUTHORITY. THE SAME I N OUR OPINION WAS INCUMBENT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. WE THEREFORE ONLY CONSIDER IT FIT AND PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION ON THE DISALLOWANCES AGITATED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY BY CONSIDERING ALL THE MATERIALS AS BROUGHT ON RECORD. TOWARD THIS WE REL Y INTER ALIA ON THE DECISION IN THE CASE OF TIN BOX COMPANY VS. CIT [2001] 249 ITR 216 (SC). THE FOREGOING WOULD ALSO DISPOSE OF THE ASSESSEES CROSS OBJECTION CHALLENG ING THE PART SUSTENANCE OF THE IMPUGNED DISALLOWANCES. THE A.O. SHALL IN SO DECIDING RENDER INDEPENDENT FINDINGS UNINFLUENCED BY THE RESULT/S OF THE ASSESSEES APPEAL BEFORE THE LD. CIT(A) WHOSE ORDER THUS STANDS SET ASIDE. WE DECIDE ACCORDINGLY. 5. IN THE RESULT BOTH THE REVENUES APPEAL AND THE ASSESSEES CO ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON OCTOBER 15 2 013 SD/- SD/- (D. MANMOHAN) (SANJAY ARORA) / VICE PRESIDENT / ACCOUNTANT MEMBER / 0 MUMBAI; 6 DATED : 15.10.2013 '*! ROSHANI SR. PS 4 ITA NO. 5593/M/11 & CO NO. 102/M/12 MANOJ L. SHETH (HUF)(A.Y. 2008-09) ! ' #$%& ' &$ ! COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. / 7. 8 9 / THE CIT(A) 4. / 7. / CIT CONCERNED 5. :';<%*.*=+ 1=+4 / 0 / DR ITAT MUMBAI 6. < >0 ! GUARD FILE ! ( / BY ORDER )/(* + (DY./ASSTT. REGISTRAR) / 0 / ITAT MUMBAI