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M/s Metal Roofing Contractors (India) Pvt. Ltd.,B-1/1, Mayur Ma Krupa CHSL, Shimpoli Road, Borivali (W), Mumba-400 092 Vs. DCIT-9(2), Mumbai-20.
April, 15th 2013
                                                     `       . ',

 IN THE INCOME TAX APPELLATE TRIBUNAL `SMC', BENCH
                       MUMBAI

                               ,
                  BEFORE SHRI R. K. GUPTA, JM
                                   ITA No.842/Mum/2013
             (              Assessment Year :2009-2010)
     M/s        Metal      Roofing Vs. DCIT-9(2), Mumbai-20.
     Contractors (India) Pvt. Ltd.,
     B-1/1, Mayur Ma Krupa
     CHSL,      Shimpoli     Road,
     Borivali (W), Mumba-400 092
                                  PAN/GIR No. : AADCM 3036 A
          (         Appellant)      ..     (       Respondent)

                   /Assessee by        :     None
                 /Revenue by           :    Smt. Jothilakshmi Nayak

                   Date of Hearing :            4th April, 2013
                 Date of Pronouncement :             April, 2012

                                    ORDER

        This is an appeal by the assessee against the order dated 18-10-

2012 of leaned CIT(A)-20, Mumbai relating to the assessment year

2009-10.

2.      The assessee in its appeal is objecting in confirming the addition

of Rs.4,71,260/- under Section 41(1) of the Act.


3.      The AO by observing that liability is giving from the last so many

years, which is remained unpaid at the end of the assessee.

Accordingly, he brought the amount of liability at Rs.4,71,260/- to tax in

view of the provision of Section 41(1) of the Act.
                                     2
                                                            ITA No.842/2013







4.    The CIT(A) also confirmed the action of the AO. Decision of the

Hon'ble Supreme Court in the case of CIT Vs. Sugauli Sugar Works

Pvt. Ltd., reported in (1999) 236 ITR 518 (SC) was not found

applicable on the facts of the case by the learned CIT(A). Now, the

assessee is in appeal here before the Tribunal.


5.    None appeared on behalf of the assessee instead of service of

notice through Registered AD post. On the other hand, learned DR

placed reliance on the order of learned CIT(A).

6.    After considering the submission and perusing the material on

record, I am of the view that the matter should go back to the file of the

AO to examine the facts of the case once again. Nowhere it is borne

out from the order of the AO that the AO has made enquiry from the

party that whose account's liability has been shown. Due to some

reasons, confirmation from that party could not be filed by the

assessee, does not cease to exist. There is also no dispute that the

liability was genuine as in the year of liability arisen, has been allowed

by the department itself. Having onus lies upon the department to

prove that liability shown by the assessee has been ceased to exist,

therefore, to meet the end of justice, I set aside the issue to the file of

the AO to examine the case afresh after affording reasonable

opportunity of being heard to the assessee and after making direct

enquiry from the party on whose account liability has been shown in

the account of the assessee. I order accordingly.
                                            3
                                                                    ITA No.842/2013







7.    In the result, appeal of the assessee is allowed for statistical
purposes.




      Order pronounced in the open court on this 10th day of Apr.2013
                                                                  2013


                                                                 Sd/-
                                                               (       )
                                                              (R.K.GUPTA)
                                                               / JUDICIAL MEMBER
     Mumbai;                Dated : 10/04/2013
      /pkm,        PS
                        Copy of the Order forwarded to :
1.        / The Appellant
2.       / The Respondent.
3.                      / The CIT(A), Mumbai.
4.              / CIT
5.                                       / DR, ITAT, Mumbai

6.            Guard file.
                                   //True Copy//
                                                                             / BY ORDER,


                                                                   (Asstt.   Registrar)
                                                                         / ITAT, Mumbai
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