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TMI Blog2021 (2) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... to take a plea with regard to the matching principle and since the assessee has not been heard on the aforesaid issue, we deem it appropriate to quash the order passed by the Tribunal in so far as it pertains to the appeal preferred by the revenue and remit the matter to the Tribunal to decide the same afresh after affording an opportunity to all the parties on the aforesaid issue. Needless to state that it will be open for the parties to raise all the contentions which are admissible in law to them. Therefore, it is not necessary for us to answer the substantial questions of law. - I.T.A. NO.61 OF 2015 - - - Dated:- 8-2-2021 - HON BLE MR. JUSTICE ALOK ARADHE AND HON BLE MR. JUSTICE NATARAJ RANGASWAMY APPELLANT (BY SRI. M.V. SES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated are that the assessee who is an individual deals with the business of real estate under the name and style of M/s. SLV Housing Development Corporation which is a partnership firm. A search and seizure operation was conducted in the case of the assessee on 06.01.2009 and during the course of search, lot of incriminating materials were seized by the Department. The case of the assessee was centralized vide order passed by the Commissioner of Income Tax dated 16.04.2009 and a notice under Section 153A of the Act was issued on 08.03.2010 requiring the assessee to file return of income for the Assessment Year namely 2008-09 within thirty days. The aforesaid notice was served on the assessee on 09.03.2010. Subsequently, a notice under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a payment and the same cannot be disallowed. It was further held that this amount had not been carried to the stock in trade, but was treated as an investment and therefore, on this ground also it cannot be disallowed. Accordingly, the appeal was partly allowed. The revenue thereupon approached the Income Tax Appellate Tribunal. The Tribunal by an order dated 05.09.2014, inter alia held as follows: 17. As far as the set off with regard to ₹ 30.00 lakhs alleged to have been paid in cash to Shri L. Gopala Krishna is concerned, we find that the CIT (A) has observed that the assessee never claimed it as expenditure. It was an investment. Therefore, section 40A(3) is not applicable. The disallowance u/s 40A(3) is not possible. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another Vs. Union of India and Others , (2007) 13 SCC 673 submitted that the assessee is entitled to the benefit of matching principle. However, the aforesaid contention has not been considered neither by the Tribunal nor the assessee has been afforded an opportunity. In this connection, counsel invited attention of this Court to Paragraph 17 of the order passed by the Tribunal. Learned counsel for the revenue could not dispute the aforesaid submission. 7. In view of the law laid down by the Supreme Court in J.K. Industries Limited (supra) and in view of the aforesaid decision, the assessee is entitled to take a plea with regard to the matching principle and since the assessee has not been heard on the aforesaid issue, we deem i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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