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ACIT, Central Circle 33 M/s. Delux Ploymers Pvt. Ltd. Room No. 32(2), Ground Floor Reaghuvanshi Mills Compound Aayakar Bhavan, M.K. Road Vs. Ground Floor, Senapati Bapat Marg Mumbai 400020 Lower Parel (W), Mumbai 400013
October, 10th 2012
              IN THE INCOME TAX APPELLATE TRIBUNAL
                         "D" Bench, Mumbai

                Before Shri D. Manmohan, Vice President
               and Shri N.K. Billaiya, Accountant Member

                         ITA No. 7290/Mum/2011
                         (Assessment Year: 2008-09)

ACIT, Central Circle 33               M/s. Delux Ploymers Pvt. Ltd.
Room No. 32(2), Ground Floor      Vs. Reaghuvanshi Mills Compound
Aayakar Bhavan, M.K. Road             Ground Floor, Senapati Bapat Marg
Mumbai 400020                         Lower Parel (W), Mumbai 400013
                                      PAN - AAACD4132B
           Appellant                              Respondent

                   Appellant by:    Shri A.B. Koli
                   Respondent by:   Shri A.K. Ghosh

                   Date of Hearing:       08.10.2012
                   Date of Pronouncement: 08.10.2012




                                 ORDER

Per D. Manmohan, V.P.

     This is an appeal filed on 31.10.2011 at the instance of the Revenue. As
could be noticed from Form No. 36, this appeal pertains to A.Y. 2008-09 and
it is directed against the order of the CIT(A)­41, Mumbai dated 24.08.2011.
Column 3B also shows that the income assessed is `22,25,540/-.

2.    It is a fact that the CIT(A)-41, Mumbai disposed of the appeal on
24.08.2011 and it appears to have been communicated to the Assessing
Officer on 05.09.2011. The Assessing Officer in turn forwarded the same to
the CIT, Central 3, Mumbai, who has given his authorization for filing an
appeal vide his order dated 27.10.2011, wherein he directed the AO to prefer
an appeal on the following grounds: -

     "1. Whether on the facts and in the circumstances of the case and in
         law, the learned CIT(A) is justified in directing the Assessing
         Officer to make disallowance under section 14A as per decision
         of ITAT Mumbai bench in the case of DCIT Vs. HDFC BANK Ltd.,
         217/Mum/2008 when disallowance for this year has to be
         made as per the provisions of rule 8D in accordance with the
                                       2                 ITA No. 7290/Mum/2011
                                                      M/s. Delux Ploymers Pvt. Ltd.

           decision of the Mumbai High Court in the case of Godrej and
           Boyce Manufacturing Company Limited 234 CTR 1."
     2.    Whether on the facts and in the circumstances of the case and in
           law, the learned CIT(A) is justified in directing the Assessing
           Officer to make disallowance under section 14A as per decision
           of ITAT Mumbai bench in the case of DCIT Vs. HDFC BANK Ltd.,
           217/Mum/2008 when Learned CIT(A) could not find any error in
           the computation of disallowance made as per rule 8D by the
           Assessing Officer."

3.     However, the Assessing Officer, who is the appellant herein, filed an
appeal by raising the following grounds as could be seen from page 2 of
Form No. 36: -

     "i)   Whether on the facts and in the circumstances of the case and in
           law, the Ld. CIT(A) was right in deleting the addition based on
           evidence of rent receipt seized during the course of search.
     ii)   Whether on the facts and in the circumstances of the case and in
           law, the Ld. CIT(A) was right in granting set-off of an
           unaccounted brokerage and commission income against the
           declaration made, when the assessee has not been able to
           establish nexus between these two receipts."




4.     The grounds of appeal were verified on the 3rd day of March, 2011,
which is prior to the date of passing the order by the CIT(A)-41 as well as the
date of authorization by the Administrative Commissioner. At the cost of
repetition, it may be mentioned that this being a departmental appeal it is
the duty of the Assessing Officer to verify as to whether the appeal filed by
him is proper or not and if the AO has casually sent the appeal memo
without noticing as to what grounds are filed alongwith Form No. 36, at
least the Departmental Representative ought to have verified the same. In
the instant case the learned D.R. did not seek any adjournment to rectify
the grounds but started addressing on the issue of section 14A overlooking
the fact that the appellant has not raised that ground in the instant appeal.

5.     The learned counsel for the assessee objected the issue raised by the
learned D.R. by submitting that he cannot raise a new issue which was not
raised in the ground of appeal annexed to Form No. 36.

6.     Having regard to the circumstances of the case we are of the view that
the appeal filed by the Revenue deserves to be dismissed since the grounds
                                       3                 ITA No. 7290/Mum/2011
                                                      M/s. Delux Ploymers Pvt. Ltd.

raised before us did not arise out of the order passed by the impugned order
of the CIT(A). As pronounced in the open court, the appeal filed by the
Revenue is dismissed.

Order pronounced in the open court on 8th October, 2012.

                   Sd/-                                  Sd/-
              (N.K. Billaiya)                       (D. Manmohan)
           Accountant Member                        Vice President

Mumbai, Dated: 8th October, 2012

Copy to:

   1.   The   Appellant
   2.   The   Respondent
   3.   The   CIT(A) ­ 41, Mumbai
   4.   The   CIT­ III, Mumbai City
   5.   The   DR, "D" Bench, ITAT, Mumbai

                                                      By Order

//True Copy//
                                                   Assistant Registrar
                                           ITAT, Mumbai Benches, Mumbai
n.p.
 
 
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