DINESH JAYMATRAM VAIDYA, MUMBAI V. ITO 25(1)(4), MUMBAI

ITA 1107/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2350 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 20-07-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 07-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO 1107/MUM/2013 ASSESSMENT YEAR: 2005-06 DINESH JAYMATRAM VAIDYA, 405, SURYA DARSHAN, CARTER ROAD NO. 2, BORIVALI (EAST) MUMBAI- 400066. PAN:- AABPV0961G VS. THE ITO 2 5 (1) (4) , ROOM NO. 23,B WING, MITTAL COURT, NARIMAN POINT. MUMBAI- 400 021. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE. RESPONDENT BY : SHRI. B.S.BIST. DATE OF HEAR ING: 2 0 /07/ 2016 DATE OF PRONOUNCEMENT: 29/07/20 16 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE APPELLANT/AS SESSEE AGAINST ORDER DATED 19/12/2012 PASSED BY THE LD. CIT(APPEALS)-11 MUMBAI FOR THE ASST. YEAR 2005-06, WHEREBY THE LD. CIT(A) CONFIRMED THE PENAL TY IMPOSED BY THE A.O. U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL:- 1) MY LORD, THE APPELLANT CIT(A)-11/CIR.25 WHILE P ASSING THE ORDER DID NOT GIVE THE CHANCE OF HEARING ON THE FIXED DAT E OF 17/12/2012, AS THE CIT(A)-11/CIR/25 WAS NOT IN OFFICE NOR HIS S TAFF AND AFTER WAITING FOR HIM FOR TWO HOURS, SINCE WE HAVE TO ATT END OTHER INCOME TAX CASE, WE LEFT THE OFFICE FOR ATTENDING THE SAME AND ON 19/12/2012 THE CASE WAS DECIDED EX-PARTE BASIS. 2 ITA NO 1107/MUM/2013 ASSESSMENT YEAR: 2005-06 2) MY LORD, THE LEARNED OFFICER HAS TREATED RS. 3,0 0,000/- AS UNDISCLOSED INCOME WHICH IS ACTUALLY UNSECURED LOAN FROM DIFFERENT LONEE AND PASSED THE ORDER GIVING THE CIRCUMSTANCES AS BELOW WHICH IS NOT AT ALL APPLICABLE TO OUR CLIENT. A) FAILS OF OFFER AN EXPLANATION TO B) OFFERS AN EXPLANATION WHICH IS FOND BY TH E ASSESSING OFFICER TO BE FALSE OR C) OFFERS EXPLANATION WHICH IS NOT ABLE TO SU BSTANTIATE OR D) FAILS TO PROVE THAT SUCH EXPLANATION IS BON AFIDE AND E) FAILS TO PROVE THAT ALL THE FACTS & MATERI ALS TO THE COMPUTATION OF INCOME HAVE BEEN DISCLOSED BY HIM. 3) MY LORD, THE SAID LEARNED OFFICER PASSED THE ORD ER BEFORE WE COULD SUBMIT THE PROOF OF PAYMENT FROM THE LONEE AND RAIS ED THE DEMAND OF RS. 92,294/- AND PENALIZED OUR CLIENT WITH 100% PENALTY U/S 271(1)(C). 4) MY LORD, THE ONLY FAULT OF OUR CLIENT WAS THAT H E COULD NOT ATTEND ON THAT PARTICULAR DATE ON WHICH THE LEANED OFFICER HAS ASKED TO PRODUCE THE SAID LOAN CONFIRMATION, DUE TO SOME UNA VOIDABLE CIRCUMSTANCES AND HENCE THE LEARNED OFFICER CONSIDE RED RS. 3,00,000/- AS UNDISCLOSED INCOME AND PASSED THE ORD ER WITH 100% PENALTY. 5) MY LORD, WE ARE HEREWITH ENCLOSING BANK STATEMEN T RECEIVED FROM MR. H.N.TOKHAR. MR. MAHENDRA J.VAIDYA AND MR. HARVA DAN N. JOUHARAN TOWARDS UNSECURED LOAN RECEIVED RS. 50,000 /- EACH HAVING PAN ABSPJ3012G, AABPV0961G & APOPJ3802G RESPECTIVELY CONFIRMING THE LONE TAKEN BY OUR CLIEN T. (ENCLOSED COPY OF BANK STATEMENT). IN VIEW OF THE ABOVE, WE ON BEHALF OF OUR CLIENT RE QUEST YOUR HONOR TO KINDLY CONSIDER THE ABOVE AMOUNT FOR WHICH BANK STA TEMENT ATTACHED TOWARDS CONFIRMATION OF UNSECURED LOAN. 3. THE CASE WAS CALLED FOR HEARING, HOWEVER, NONE A PPEARED ON BEHALF OF THE ASSESSEE. PERUSAL OF RECORD WOULD REVEAL THAT THE N OTICE WAS SERVED TO THE 3 ITA NO 1107/MUM/2013 ASSESSMENT YEAR: 2005-06 ASSESSEE ON 16.03.2016. DESPITE SERVICE OF NOTICE A SSESSEE DID NOT APPEAR IN PERSON OR THROUGH AUTHORIZED REPRESENTATIVE. EVEN N O APPLICATION, FOR ADJOURNMENT WAS RECEIVED. FROM THE CONDUCT OF THE A SSESSEE IT APPEARS THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE PRES ENT APPEAL. ACCORDINGLY WE DECIDED TO DISPOSE OF THE APPEAL ON MERIT AFTER HEA RING THE LD. DEPARTMENTAL REPRESENTATIVE (DR). 4. THE LD. DR SUBMITTED THAT THE LD. CIT(A) HAS RIG HTLY CONFIRMED THE PENALTY IMPOSED BY THE A O. THE ASSESSEE HAS FAILED TO DISC HARGE THE ONUS OF ESTABLISHING THE IDENTITY OF THE ALLEGED LENDERS, T HEIR CREDITWORTHINESS AND GENUINENESS OF TRANSACTIONS, DESPITE THE SUFFICIENT OPPORTUNITY GIVEN BY THE A.O DURING ASSESSMENT PROCEEDING AS WELL AS BY THE CIT( A), DURING APPELLATE PROCEEDINGS. THEREFORE, THERE IS NO MERIT IN THE AP PEAL OF THE ASSESSEE. 5. WE HAVE PERUSED THE DOCUMENTS ON RECORD. THE LD. CIT(A) HAS UPHELD THE FINDING OF THE A.O. AND CONFIRMED THE PENALTY LEVIE D U/S 271(1)(C) OF THE ACT HOLDING THAT THE ASSESSEE HAS FAILED TO ESTABLISHIN G THE IDENTITY OF THE ALLEGED LENDERS, THEIR CREDITWORTHINESS AND GENUINENESS OF TRANSACTIONS, DESPITE THE SUFFICIENT OPPORTUNITY GIVEN BY THE A.O DURING ASSE SSMENT PROCEEDING. THE APPELLANT/ASSESSEE EVEN FAILED TO DISCHARGE THE ONU S DURING THE APPELLATE PROCEEDINGS. 6. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT HAS WRONGLY CONFIRMED THE PENALTY LEVIED BY THE A.O. U/S 271(1)(C) OF THE INCOME TAX ACT. THE ASSESSEE HAS TAKEN THE PLEA THAT THE ASSESSEE COULD NOT PROD UCE DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CONTENTION ON THE DATE FIXED BEFO RE THE LD. CIT(A) DUE TO UNAVOIDABLE CIRCUMSTANCES. THE ASSESSEE HAS ALSO PL ACED ON RECORD STATEMENT OF BANK ACCOUNT OF MR. H.N. TOKHAR, MR. MEHANDRA J VAIDYA AND MR. HARVADAN N JOUHRARAN TO SUBSTANTIATE ITS CONTENTION. PENALTY PROCEEDINGS ARE DIFFERENT FROM ASSESSMENT PROCEEDINGS AND SINCE THE SAID DOCU MENTS HAVE NOT BEEN 4 ITA NO 1107/MUM/2013 ASSESSMENT YEAR: 2005-06 SEEN DURING THE PENALTY PROCEEDINGS AND APPELLATE P ROCEEDINGS, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE SHOULD GET AN OPP ORTUNITY TO PROVE THE DOCUMENTS SUBMITTED BEFORE THE TRIBUNAL. WE, THEREF ORE, SET ASIDE THIS ONLY GROUND OF APPEAL TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATING THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. WE ALSO DIRECT THE ASSESSEE NOT TO SEEK ADJOURNMENTS ON FRIVOLOUS GROU NDS. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR THE A.Y. 2005-06 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED:29/07/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA