JAGPAL INDUSTRIES, MUMBAI v. ITO 17(3)(2), MUMBAI

ITA 5813/MUM/2008 | 2003-2004
Pronouncement Date: 03-02-2010 | Result: Allowed

Appeal Details

RSA Number 581319914 RSA 2008
Assessee PAN AACFJ3336L
Bench Mumbai
Appeal Number ITA 5813/MUM/2008
Duration Of Justice 1 year(s) 4 month(s) 15 day(s)
Appellant JAGPAL INDUSTRIES, MUMBAI
Respondent ITO 17(3)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 03-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted J
Tribunal Order Date 03-02-2010
Date Of Final Hearing 02-02-2010
Next Hearing Date 02-02-2010
Assessment Year 2003-2004
Appeal Filed On 18-09-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J MUMBAI BEFORE SHRI R.S.SYAL AM AND SHRI N.V.VASUDEVAN JM ITA NO.3988/MUM/2007 : ASST.YEAR 2003-2004 ITA NO.5813/MUM/2008 : ASST.YEAR 2003-2004 M/S.JAGPAL INDUSTRIES 37 BARRISTER NATH PAI MARG COTTON GREET MUMBAI 400 033. PA NO.AACFJ3336L. VS. THE INCOME TAX OFFICER WARD 17(3)(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.GOPAL RESPONDENT BY : SHRI L.K.AGRAWAL O R D E R PER R.S.SYAL AM : THESE TWO APPEALS BY THE ASSESSEE RELATE TO THE ASS ESSMENT YEAR 2003-2004. WHEREAS ITA NO.3988/MUM/2007 IS AGAINST THE ORDER P ASSED BY THE LEARNED CIT(A) ON 8.2.2007 PURSUANT TO THE ASSESSMENT ORDER PASSED U/S.143(3) AND THE SECOND APPEAL BEARING ITA NO.5813/MUM/2008 IS AGAIN ST THE ORDER PASSED BY THE CIT(A) ON 29.7.2008 PURSUANT TO THE RECTIFICATION O RDER PASSED BY THE A.O. U/S.154. 2. THE LEARNED A.R. DID NOT PRESS CERTAIN DISALLOWA NCES UPHELD BY THE LEARNED CIT(A) AS SET OUT IN GROUND NOS. A TO E OF ITA NO. 3988/MUM/2007. THESE GROUNDS THEREFORE STAND DISMISSED. 3. THE ONLY ISSUE THROUGH GROUND NO. F IN THIS APP EAL WHICH SURVIVES FOR OUR CONSIDERATION IS AGAINST THE CONFIRMATION OF ADDITI ON OF RS.4 48 275. THE FACTS OF THIS GROUND ARE THAT THE ASSESSING OFFICER IN HIS ORDER U/S.143(3) DISCUSSED VIDE PARA 4 THAT A SUM OF RS.59 77 000 WAS USED BY M/S.B SPL. TREATING IT AS ADVANCE GIVEN BY THE ASSESSEE IT WAS OPINED THAT THE ASSES SEE OUGHT TO HAVE CHARGED INTEREST ON THIS AMOUNT. HE APPLIED 15% RATE AND DETERMINED OUT THE AMOUNT OF RS.4 48 475 WHICH WAS REQUIRED TO BE DISALLOWED OU T OF INTEREST EXPENDITURE. HE ITA NOS.3988/M/07 & 5813/M/08 M/S.JAGPAL INDUSTRIES. 2 MENTIONED : HENCE AN ADDITION OF RS.4 48 275 HAS B EEN MADE. HOWEVER WHILE COMPUTING THE TOTAL INCOME HE OMITTED TO INCLUDE T HE SAID SUM OF RS.4.48 LAKHS. THE ASSESSEE CHALLENGED THIS FINDING OF A.O. BEFORE THE LEARNED CIT(A) WHO REFUSED TO ADJUDICATE ON IT FOR THE REASON THAT TH E A.O. HAD NOT MADE ADDITION ON THAT ACCOUNT. SUBSEQUENTLY THE ASSESSING OFFICER PASSED AN ORDER U/S.154 ON 24.4.2006 MAKING THE SAID ADDITION OF RS.4 48 275 WHICH WAS OMITTED TO BE ADDED. WHEN THE MATTER CAME UP BEFORE THE LEARNED C IT(A) HE UPHELD THE ACTION OF THE A.O. ON THE GROUND THAT THE A.O. PROPOSED TO DISALLOW THE SAID SUM WHICH HE FAILED TO ADD BACK TO THE TOTAL INCOME AND THE S AME BEING MISTAKE APPARENT FROM RECORD WAS RIGHTLY RECTIFIED U/S.154 OF THE ACT. TH IS FINDING IS SUBJECT MATTER OF CHALLENGE IN THE OTHER APPEAL. 4. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE C ONTENDED THAT THE ARGUMENTS PUT FORTH BY THE ASSESSEE BEFORE THE LEARNED FIRST APPELLATE AUTHORITY ON THE MERITS OF ADDITION AGAINST THE ORDER U/S.143(3) AS WELL AS 15 4 REMAINED TO BE ADDRESSED. IT WAS PRAYED THAT THE ASSESSING OFFICER BE DIRECTED T O CONSIDER THE ASSESSEES SUBMISSION IN SUPPORT OF NOT MAKING THE SAID ADDITI ON. THE LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT RAISE ANY OBJECTION TO IT. I N VIEW OF THESE RIVAL BUT COMMON SUBMISSIONS IT IS CLEAR THAT THE ASSESSEES CONTENT ION AGAINST THE ADDITION WAS NOT DEALT WITH BY THE LEARNED CIT(A) IN BOTH THE ORDERS . IN THE FIRST ORDER IT WAS REJECTED BECAUSE THE A.O. HAD NOT MADE ADDITION FOR THE SAID SUM AND IN THE SECOND ORDER IT WAS HELD TO BE A MISTAKE APPARENT FROM REC ORD WITHOUT GOING INTO THE MERITS OF ADDITION. IN OUR CONSIDERED OPINION THE E NDS OF JUSTICE WILL ADEQUATELY MEET IF THE IMPUGNED ORDER ON THIS ISSUE SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF A.O. WE ORDER ACCORDINGLY AND DIRECT HIM TO DECIDE THE QUESTION OF DISALLOWANCE OF RS.4 48 275 BEING INTEREST AT THE RATE OF 15% OF ADVANCE OF RS.59 77 000 AFRESH IN ACCORDANCE WITH LAW AFTER AL LOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NOS.3988/M/07 & 5813/M/08 M/S.JAGPAL INDUSTRIES. 3 5. IN THE RESULT ITA NO.3988/MUM/2007 IS DISMISSED AND ITA NO.5813/MUM/2008 IS ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED ON THIS 3 RD DAY OF FEBRUARY 2010. SD/- SD/- (N.V.VASUDEVAN) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT ME MBER MUMBAI : 3 RD FEBRUARY 2010. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A)-XXVII MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI. ITA NOS.3988/M/07 & 5813/M/08 M/S.JAGPAL INDUSTRIES. 4 DATE INITIAL 1. DRAFT DICTATED ON 02.02.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 02.02.2010 SR.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 SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER. *