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
BEFORE SHRI R. K. GUPTA, JM
( 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
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
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.
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.
7. In the result, appeal of the assessee is allowed for statistical
Order pronounced in the open court on this 10th day of Apr.2013
/ JUDICIAL MEMBER
Mumbai; Dated : 10/04/2013
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.
/ BY ORDER,
/ ITAT, Mumbai