GAZANFER ABDUL SHAIKH, MUMBAI V. ITO 24(1)(1), MUMBAI

ITA 1126/MUM/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0463 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 17-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR SINGH
• Keywords: Opportunity of being heard; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 1126 / MUM/20 17 ASSESSMENT YEAR: 2006 - 07 GAZANFER ABDUL SHAIKH VS. ITO 24(1)(1) A1/308 OLD KILLEDAR APARTMENT AAYAKAR BHAVAN, OPP. MTNL, S.V. ROAD, M.K. ROAD, JOGESHWARI (W) MUMBAI 400020 MUMBAI - 400102 . PAN NO. AMHPS6152L (APPELLANT) (RESPONDENT) ASSESSEE BY : MR. DHAVAL SHAH, AR REVENUE BY: MR. PRADEEP KUMAR SINGH, DR DATE OF HEARING : 18 /05 /2017 DATE OF PRONOUNCEMENT: 31/05/2017 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 200 6 - 07 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER (APPEALS) 42 , MUMBAI AND ARISES OUT OF THE ORDER U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT). 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE READ AS UNDER : I. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN HOLDING THAT A.O. LEVYING PENALTY U/S 271(1)(C) OF INCOME TAX ACT, 1961. II. BOTH THE LOWER AUTHORITIES ERRED IN IGNORING ASSESSMENT HISTORY OF APPELLANT WHILE ESTIMATING INCOME U/S 144 OF THE INCOME TAX ACT, 1961. ITA NO. 1126 /MUM/201 7 2 III. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 17,00,000/ - BEING NET PROFIT ON ESTIMATE BASIS. 3. THE LEARNED C OUNSEL OF THE ASSESSEE SUBMITS BEFORE US THAT THE ASSESSEE WOUL D NOT LIKE TO PRESS GROUND NO 2 & 3 OF THE APPEAL. SO THE ABOVE GROUND S OF APPEAL ARE DISMISSED AS NOT PRESSED. 4. NOW WE TAKE UP THE 1 ST GROUND OF APPEAL. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER (A.O.) FOUND THAT THE ASSESSEE HAD DEPOSITED CASH OF RS. 10,02,800/ - IN THE SAVINGS BANK A/C WITH THE DEVELOPMENT CREDIT BANK. IN RESPONSE TO A QUERY RAISED BY THE A.O., THE ASSESSEE SUBMITTED THAT THE CASH DEPOSITS WERE FROM THE SALE OF OLD CAR. HOWEVER, THE ASSESSEE COULD NOT FURNISH ANY EVIDENCE. THEREFORE, THE A.O. TREATED THE CASH DEPOSIT AS UNDISCLOSED INCOME OF THE ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME. IN APPEAL, THE LEARNED CIT( A) DISMISSED THE AS SESSEES APPEAL ON THE GROUND THAT THE SOURCE OF MONEY COULD NOT BE EXPLAINED . THEREAFTER THE A.O. IMPOSED A PENALTY OF RS. 3,18,020/ - U/S 271(1)(C) OF THE ACT. 5. AGGRIEVED BY THE ORDER OF THE A.O., THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED CIT(A). WE FIND THAT THE LEAR NED CIT(A) AGREED WITH THE REASONS GIVEN BY THE A.O. AND DISMISSED THE APPEAL FILED BY THE ASSESSEE. 6. BEFORE US, THE LEARNED COUNSEL OF THE ASSESSEE SUBMITS THAT THE ITAT G BENCH, MUMBAI IN ASSESSEES OWN CASE FOR THE SAME ASSESSMENT YEAR IN ITA NO. 4 624/MUM/2012 HAS SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORED THE MATTER TO THE A.O. 7. THE LEARNED DR FAIRLY AGREED WITH THE FACT THAT THE QUANTUM PROCEEDING HAS BEEN SET ASIDE BY THE TRIBUNAL. ITA NO. 1126 /MUM/201 7 3 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE CO - ORDINATE BENCH IN THE ASSESSEES OWN CASE IN QUANTUM PROCEEDINGS FOR THE SAME ASSESSMENT YEAR HAS HELD AS UNDER: 4.4.2 IN THE LIGHT OF THE FACTUAL MATRIX OF THE CASE, AS DISCUSSED ABOVE, WE SET ASID E THE ORDERS OF THE AUTHORITIES BELOW FOR A.Y. 2007 - 08 AND DIRECT THE ADMISSION OF ADDITIONAL EVIDENCE ADMITTEDLY FILED BY ASSESSEE BEFORE THE LEARNED CIT(A) ON THE ISSUE OF CASH DEPOSITS/CASH WITHDRAWALS IN ASSESSEES SAVING BANK ACCOUNT WITH DEVELOPMENT CREDIT BANK, SANTA CRUZ BRANCH, MUMBAI AND RESTORE THE MATTER FOR FRESH EXAMINATION TO THE FILE OF A.O. IN THE LIGHT OF OUR OBSERVATIONS. NEEDLESS TO ADD, A.O. IS DIRECTED TO AFFORD ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND TO FILE DETAILS/SUBMISSIO NS REQUIRED IN THIS REGARD. IT IS ACCORDINGLY ORDERED. IN THE RESULT, ASSESSEES APPEAL FOR A.Y. 2006 - 07 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 9. AS THE ADDITION OF RS. 10,02,800/ - MADE BY THE A.O. HAS BEEN SET ASIDE BY THE CO - ORDINATE BENCH, TH E PENALTY IMPOSED BY THE A.O. U/S 271(1)(C) DOES NOT SURVIVE. 10. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/05/2017. SD/ - SD/ - ( MAHAVIR SINGH ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : DATED: 31/05/2017 RAHUL SHARMA , SR. P.S. 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 . ITA NO. 1126 /MUM/201 7 4 BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI