DHARMENDRA SHANTILAL BAVISI, GHATKOPAR V. ITO CIRCLE 27(1)(4), Mumbai

ITA 1001/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6108 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMIT PRATAP SINGH
• Assessee Lawyers: ADITYA RAMCHANDRA
• Keywords: Business income; Set aside
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC, BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI VIKAS AWASTHY, JM ITA NO. 1001/MUM/2019 ( ASSESSMENT YEAR: 2009-10) DHARMENDRA SHANTILAL BAVISI, 502, SAYONARA, SHANTI PARK, SHANTI PATH, V.B. LANE, GHATKOPAR (EAST). VS. I.T.O., CIRCLE-27(1)(4), TOWER NO. 6, 414, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI-400703. PAN/GIR NO.AACPB 4016 B (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI ADITYA RAMCHANDRA (AR) REVENUE BY SHRI AMIT PRATAP SINGH (DR) DATE OF HEARING 10/02/2020 DATE OF PRONOUNCEMENT 10/02/2020 / O R D E R PER: R.C. SHARMA, A.M. THIS IS THE APPEAL FILED BY THE ASSESSEE AGAINST T HE EX PARTE ORDER OF THE LD. CIT(A)-24, MUMBAI DATED 29/11/2018 FOR T HE A.Y. 2009-10 IN THE MATTER OF ORDER PASSED U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. IN THIS APPEAL, THE ASSESSEE IS BASICALLY AGGRIE VED FOR THE EX PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT GIVING DUE O PPORTUNITY OF HEARING TO THE ASSESSEE. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. FACTS IN BRIEF ARE THAT THE ASSESSEE IS IN BUSINESS OF RETAI L TRADE OF TEXTILE CLOTHS ITA NO. 1001/MUM/2019 DHARMENDRA SHANTILAL BAVISI VS ITO 2 AND SAREES BESIDES TRANSPORT BUSINESS AND EARNING I NTEREST INCOME FROM BANK FIXED DEPOSITS. THE ASSESSEE IS DERIVING BUSIN ESS INCOME AND INCOME FROM OTHER SOURCES. IN THE RETURN OF INCOME SO FILE D, THE ASSESSEE DID NOT INCORPORATE INCOME FROM RETAIL TRADE OF TEXTILE CLO THES. THE ASSESSEE THEN COMPUTED BUSINESS INCOME BY APPLYING SECTION 44AF O F THE ACT AND NET PROFIT WAS COMPUTED AT 5.24% OF TOTAL SALES OF RS. 16,02,937/-. THEREAFTER THE A.O. GOT INFORMATION THAT THE ASSESS EE HAS DEPOSITED CASH IN HIS SAVINGS BANK ACCOUNT MAINTAINED WITH ORIENTA L BANK OF COMMERCE. IN THE REASSESSMENT ORDER SO FRAMED, THE A.O. ADDED ENTIRE AMOUNT OF CASH DEPOSITED IN THE ASSESSEES INCOME WITHOUT ACC EPTING ASSESSEES CONTENTION REGARDING INCOME HAVING OFFERED U/S 44AF OF THE ACT. 4. AGAINST THE ORDER OF THE A.O., THE ASSESSEE PREF ERRED APPEAL BEFORE THE LD. CIT(A). THE LD AR HAS DRAWN OUR ATTENTION T O THE WRITTEN SUBMISSION FILED BEFORE THE LD. CIT(A) ALONGWITH JU DICIAL PRONOUNCEMENTS FOR TAKING INTO ACCOUNT NET PROFIT INCOME OF ASSESS EE HAVING OFFERED INCOME UNDER PRESUMATIVE TAX SCHEME. HOWEVER, THE LD. CIT(A) HAS PASSED EX PARTE ORDER WITHOUT CONSIDERING THE DETAI LS FILED BY THE ASSESSEE AND THE APPEAL WAS DISMISSED ON THE GROUND OF NON-PROSECUTION. 5. IN TERMS OF PROVISIONS OF SUB-SECTION (6) OF SEC TION 250 OF THE ACT, THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING O F THE APPEAL SHOULD BE IN WRITING AND SHALL STATE THE POINTS FOR DETERM INATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. IN THE INS TANT CASE, WITHOUT ITA NO. 1001/MUM/2019 DHARMENDRA SHANTILAL BAVISI VS ITO 3 GIVING OPPORTUNITY AND WITHOUT CONSIDERING THE ASSE SSEES CONTENTION, THE LD. CIT(A) HAS DISMISSED THE ASSESSEES APPEAL FOR NON-PROSECUTION. THEREFORE, IN THE SUBSTANTIAL INTEREST OF JUSTICE, WE SET ASIDE THE EX PARTE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR DECIDING THE MATTER AFRESH ON MERIT AFTER PROVI DING DUE AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH FEBRUARY, 2020. SD/- (VIKAS AWASTHY) SD/- (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED 10/02/2020 *RANJAN COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//