POPSTAR INVESTMENT & TRADING P. LTD, MUMBAI v. ITO 5(2)4, MUMBAI

ITA 85/MUM/2010 | 2006-2007
Pronouncement Date: 21-01-2011 | Result: Allowed

Appeal Details

RSA Number 8519914 RSA 2010
Assessee PAN AABPC1547P
Bench Mumbai
Appeal Number ITA 85/MUM/2010
Duration Of Justice 1 year(s) 15 day(s)
Appellant POPSTAR INVESTMENT & TRADING P. LTD, MUMBAI
Respondent ITO 5(2)4, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 21-01-2011
Date Of Final Hearing 12-01-2011
Next Hearing Date 12-01-2011
Assessment Year 2006-2007
Appeal Filed On 05-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH MUMBAI BEFORE SHRI D.K. AGARWAL JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER ITA NO. 85/MUM/2010 (ASSESSMENT YEAR: 2006-07) M/S. POPSTAR INVESTMENT & INCOME TAX OFFICER - 5(2 )4 TRADING P. LTD. 366 S.V.P. ROAD MUMBAI PRATHANA SAMAJ VS. MUMBAI 400004 PAN - AABPC 1547 P APPELLANT RESPONDENT APPELLANT BY: SHRI SATISH R. MODY RESPONDENT BY: SHRI SURENDRA KUMAR O R D E R PER B. RAMAKOTAIAH A.M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A)- IX MUMBAI DATED 10.11.2009. 2. ASSESSEE HAS RAISED THE FOLLOWING FIVE GROUNDS: - 1. LEARNED CIT(A)/ASSESSING OFFICER HAS ERRED IN D ISALLOWING LEGITIMATE BUSINESS EXPENDITURE INCURRED BY APPELLA NT. LEARNED CIT(A) HAS ERRED IN NOT ADMITTING LATE APPEAL FILED BY APPELLANT EVEN THOUGH JUST & SUFFICIENT CAUSE EXISTED FOR DEL AY IN FILING THE APPEAL. 2. LEARNED CIT(A)/ASSESSING OFFICER HAS ERRED IN DISAL LOWING GENUINE SALARY EXPENDITURE INCURRED OF RS.3 50 000.00 BY TH E APPELLANT. LEARNED ASSESSING OFFICER HAS FAILED TO APPRECIATE THAT APPELLANT HAD CONCAST M/C (FIXED ASSET) WHICH REQUIRED MAINTE NANCE. 3. LEARNED ASSESSING OFFICER HAS NOT BROUGHT ANYTHING ON RECORD TO SHOW THAT EXPENDITURE WAS NOT REQUIRED TO BE INCURR ED & EXPENDITURE INCURRED WAS NOT FOR BUSINESS PURPOSES. 4. LEARNED ASSESSING OFFICER HAS FAILED TO APPRECIATE THAT LOSS FROM ONE HEAD OF INCOME IS PERMITTED TO BE SET OFF AGAIN ST OTHER HEAD OF INCOME IN THE SAME YEAR. LEARNED ASSESSING OFFICER HAS FAILED TO APPRECIATE THAT HIRING CHARGES RECEIVED BY APPELLAN T WAS SHOWN IN P & L A/C AND ACCEPTED BY THE DEPT IN PAST YEAR. 5. LEARNED ASSESSING OFFICER HAS NOT BROUGHT ANYTHING ON RECORD TO SHOW THAT SALARY EXPENDITURE IS COLOURABLE DEVISE T O AVOID TAXES. ITA NO. 85/MUM/2010 M/S. POPSTAR INVESTMENT & TRADING P. LTD. 2 3. THE LEARNED COUNSEL SUBMITTED THAT THERE WAS FOUR M ONTHS DELAY IN FILING THE APPEAL BEFORE THE CIT(A) AND ASSESSEE HA S GIVEN REASONS FOR FILING THE APPEAL BELATEDLY WITH THE REQUEST TO CONDONATIO N. THE APPEAL WAS FIXED ON 10.11.2009 AND THE ASSESSEE HAS ASKED FOR ADJOUR NMENT FOR TWO WEEKS. WITHOUT GIVING ANY FURTHER TIME THE CIT(A) DISMISSE D THE APPEAL WITHOUT CONDONING THE DELAY IN FILING THE APPEAL. IT WAS SU BMITTED THAT IF GIVEN PROPER OPPORTUNITY THE ASSESSEE WOULD SUBSTANTIATE THE VARIOUS CLAIMS MADE BEFORE THE CIT(A) PARTICULARLY WITH REFERENCE TO THE DISALLOWANCE MADE BY THE A.O. AND TREATMENT GIVEN TO VARIOUS SOURCES OF INCOME ON MERITS. 4. THE LEARNED D.R. HOWEVER RELIED ON THE ORDER OF T HE CIT(A). 5. WE HAVE CONSIDERED THE ISSUE. AS SEEN FROM THE ORDE R OF THE CIT(A) THE CIT(A) GAVE ONE POSTING ON 10.11.2009 ONLY AND DISMISSED THE ASSESSEES APPEAL. THE APPEAL WAS FILED BELATEDLY O N 13.02.2009 WHEN THE SAME WAS DUE TO FILE ON 17.12.2008. WHILE FILING TH E APPEAL ASSESSEE FILED A CONDONATION LETTER EXPLAINING THAT THE CHARTERED AC COUNTANT WHO WAS DEALING WITH THE MATTER LEFT THE COMPANY WITH OUT H ANDING OVER THE RELATED PAPERS AND AFTER RECEIVING FROM HIM THE APPEAL WAS FILED BELATEDLY. IT WAS ALSO FURTHER EXPLAINED THAT THE COMPANY CAME TO KNO W ABOUT PASSING THE ASSESSMENT ORDER ONLY WHEN THE BANK ACCOUNTS WERE A TTACHED BY THE INCOME TAX AUTHORITIES. THE ORDER OF CIT(A) INDIC ATE THAT HE HAS GIVEN ONLY ONE POSTING ON 10.11.2009 THE DATE ON WHICH THE AS SESSEE ASKED FOR TWO WEEKS TIME ON THE GROUND THAT NECESSARY DETAILS REQ UIRED ARE IN THE COMPILATION. THE CIT(A) WITHOUT GIVING ANY FURTHER OPPORTUNITY DISMISSED THE APPEAL BY NOT ADMITTING THE APPEAL. 6. WE ARE OF THE VIEW THAT ASSESSEE SHOULD HAVE BEEN G IVEN PROPER OPPORTUNITY TO EXPLAIN NOT ONLY CONDONATION OF DELA Y BUT ALSO THE VARIOUS ADDITIONAL MADE BY THE A.O. IN THE ASSESSMENT ORDER . ASSESSEE WAS SERVED WITH ONLY ONE NOTICE AND THERE WAS A COMPLIANCE WIT H THE SAID NOTICE BUT ASSESSEE SOUGHT FOR TWO WEEKS ADJOURNMENT WHICH TH E CIT(A) COULD HAVE GIVEN. IN OUR OPINION PRINCIPLES OF NATURAL JUSTICE HAVE NOT BEEN FOLLOWED AND ASSESSEE SHOULD HAVE BEEN GIVEN PROPER OPPORTUNITY TO MAKE ITS CASE BEFORE THE CIT(A). ACCORDINGLY WITHOUT GOING INTO THE MER ITS OF ISSUES INVOLVED WE ITA NO. 85/MUM/2010 M/S. POPSTAR INVESTMENT & TRADING P. LTD. 3 SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE A PPEAL TO HIS OFFICE SO AS TO CONSIDER CONDONATION OF DELAY AND THE APPEAL ON MER ITS AFRESH. FOR THIS PURPOSE ORDER OF THE CIT(A) IS SET ASIDE AND THE M ATTER IS RESTORED TO THE CIT(A). GROUNDS ARE CONSIDERED ALLOWED TO THAT EXTE NT. 7. IN THE RESULT APPEAL IS ALLOWED FOR STATISTICAL PU RPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JANUARY 2011. SD/- SD/- (D.K. AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED: 21 ST JANUARY 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) IX MUMBAI 4. THE CIT V MUMBAI CITY 5. THE DR C BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.