ANIL KUMAR L. POLAKI, MUMBAI V. ITO 15(2)(2), MUMBAI

ITA 1196/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78660 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-04-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 02-04-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 09-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHOK SURI
• Assessee Lawyers: SHREY S JOSHI
• Keywords: Reasonable cause
• Section: 69; 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI . . , . , ! BEFORE SHRI I.P. BANSAL, JM AND RAJENDRA, AM ./ I.T.A. NO.1196/MUM/2011 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2006-07 MR. ANIL KUMAR L. POLAKI, 5, 1 ST FLOOR, SANDEEP CHS, ASHOK NAGAR VAKOLA BRIDGE, SANTACRUZ (EAST), MUMBAI 400 055. ' ' ' ' / VS. THE ITO 15(2)(2) MATRU MANDIR, 1 ST FLOOR, TARDEO MUMBAI 400 007 $ ./ % ./ PAN/GIR NO. : ALSPP 9783A ( $& / APPELLANT ) .. ( '($& / RESPONDENT ) ASSESSEE BY SHRI SHREY S. JOSHI REVENUE BY : SHRI ASHOK SURI ' ) *+ / DATE OF HEARING : 02/042014 ,-# ) *+ / DATE OF PRONOUNCEMENT : 02/04/2014 . / O R D E R PER I.P.BANSAL,J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)26,MUMBAI DATED 6/12/2010 FOR A SSESSMENT YEAR 2006-07. THE GROUNDS OF APPEAL READ AS UNDER: I. IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) WAS NOT JUSTIFIED IN UPHOLDING THE ORDER OF A.O. SUMMARILY WITHOUT APPRECIATING THE FACTS ON RECORDS, PARTICULARLY WHEN THE ORDER IS BEING PASSE D EX-PARTE. 2. IN LAW AND FACTS & CIRCUMSTANCES OF THE CASE, TH E LEARNED A.O. HAS FAILED TO DISCHARGE HIS ONUS BEFORE DISPOSING OF HIS ORDER. 3. IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE PROVISIONS OF SECTION-69 ARE NOT APPLICABLE TO THE INVESTMENT OF RS. 5,00,000/-. 4. IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE ORDER U/S 144 BE SET ASIDE AND RESTORED TO FILE OF A.O. IN ABSENCE OF PROPER S ERVICE OF NOTICES AND TO PROVIDE SUFFICIENT OPPORTUNITY TO APPELLANT. ./ I.T.A. NO.1196/MUM/2011 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2006-07 2 5. IN LAW AND CIRCUMSTANCES OF THE CASE, THE ORDER OF LEARNED CIT (A) MAY NOT BE UPHELD SO AS TO PROVIDE SUFFICIENT OPPORTUNITY TO A PPELLANT IN THE INTEREST OF JUSTICE. 2. THE IMPUGNED ASSESSMENT ORDER IS AN ORDER DATED 17/12/2008 PASSED UNDER SECTION 144 OF THE INCOME TAX ACT,1961 (THE A CT) DUE TO FAILURE OF THE ASSESSEE TO ATTEND THE PROCEEDINGS BEFORE THE A.O. A SUM OF RS.5.00 LCAS WAS ADDED TO THE RETURNED INCOME OF THE ASSESSEE OF RS. 5,91,574/-. THE AFORESAID AMOUNT OF RS.5.00 LACS WAS ADDED ON ACCOUNT OF AIR INFORMATION ACCORDING TO WHICH ASSESSEE HAD PURCHASED MUTUAL FUND OF RS.5. 00 LACS. IT IS MENTIONED BY THE AO THAT THE SAID AMOUNT IS ADDED DUE TO NON-AVA ILABILITY OF BOOKS OF ACCOUNTS, BANK STATEMENT AND CAPITAL ACCOUNT ETC. IN ABSENCE OF SUCH MATERIAL THE INFORMATION CANNOT BE VERIFIED. IT IS IN THIS MANNER A SUM OF RS.5.00 LACS HAS BEEN ADDED UNDER SECTION 69 OF THE ACT. THE ASSESS EE ALSO DID NOT ATTEND BEFORE LD. CIT(A) DESPITE NOTICES SENT THROUGH RPAD. LD. CIT(A) HAS MAINLY DISMISSED THE APPEAL FILED BY THE ASSESSEE IN-LIMINE ON ACCO UNT OF FAILURE OF THE ASSESSEE TO ATTEND BEFORE HIM. IN ANY CASE SPEAKING ORDER HAS NOT BEEN PASSED ON THE ADDITION AGITATED BY THE ASSESSEE. AGAINST SUCH OR DER OF LD. CIT(A) THE ASSESSEE IS AGGRIEVED AND HAS FILED AFOREMENTIONED GROUNDS. 3. AFTER NARRATING THE FACTS IT WAS SUBMITTED BY LD . A.R THAT ASSESSEE COULD NOT ATTEND BEFORE AO AS NOTICES COULD NOT BE PROPER LY SERVED ON THE ASSESSEE. REFERRING TO THE STATEMENT OF FACTS FILED BEFORE L D. CIT(A) IT WAS SUBMITTED BY HIM THAT NOTICES WERE NOT RECEIVED BY THE ASSESSEE DUE TO CHANGE IN ADDRESS. BOTH THE NOTICES WERE SENT ON OLD ADDRESS DESPITE THE F ACT THAT IN THE RETURN FILED FOR A.Y. 2007-08 NEW ADDRESS WAS STATED. HE HAS SUBMIT TED BEFORE US THAT COPY OF ACKNOWLEDGEMENT FOR RETURN FILED FOR A.Y.2007-08 IN WHICH THE NEW ADDRESS IS STATED. COPY OF ACKNOWLEDGEMENT ETC. OF THE NOTIC ES HAVE ALSO BEEN FILED, ACCORDING TO WHICH NOTICES WERE SERVED UPON THE ASS ESSEE AND HAVE BEEN RETURNED BACK BY THE POSTAL AUTHORITIES WITH THE RE MARKS THAT NO SUCH PERSON WAS FOUND AT THE ADDRESS. HE FURTHER SUBMITTED TH AT THE DOCUMENTS ATTACHED WITH THE RETURNS WERE SUFFICIENT TO PROVE THE FACT THAT INVESTMENT IN MUTUAL FUND WAS FULLY EXPLAINED. IT WAS PLEADED BY LD. AR THAT IT WILL SERVE THE INTEREST OF JUSTICE IF THE MATTER IS RESTORED BACK TO THE FILE OF AO WITH A DIRECTION TO RE- ./ I.T.A. NO.1196/MUM/2011 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2006-07 3 ADJUDICATE THE ISSUE AFTER GIVING THE ASSESSEE A RE ASONABLE OPPORTUNITY OF HEARING. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. IN VIEW OF CHANGE OF THE ADDRESS BY TH E ASSESSEE, THE NOTICES ISSUED BY THE AO COULD NOT BE SERVED UPON THE ASSESSEE. T HUS, ASSESSEE WAS PREVENTED BY REASONABLE CAUSE AND DID NOT APPEAR BEFORE A.O. CONSIDERING THESE CIRCUMSTANCES AND THE SUBMISSIONS OF LD. AR THAT AS SESSEE HAS SUFFICIENT MATERIAL TO PROVE THAT THE INVESTMENT IN MUTUAL FUN D IS EXPLAINABLE, WE CONSIDER IT JUST AND PROPER TO RESTORE THIS ISSUE TO THE FIL E OF AO WITH A DIRECTION TO PROVIDE THE ASSESSEE A REASONABLE OPPORTUNITY TO JUSTIFY IT S CLAIM AND AFTER GIVING SUCH OPPORTUNITY THE AO WILL RE-ADJUDICATE THE ISSUE. W E DIRECT ACCORDINGLY. 6. SO FAR AS IT RELATES TO THE NON-APPEARANCE BY TH E ASSESSEE BEFORE LD. CIT(A), WE ARE OF THE OPINION THAT LD. CIT(A) COULD NOT DIS MISS THE APPEAL FILED BY THE ASSESSEE IN-LIMINE. HOWEVER, AS THE MATTER IS BE ING RESTORED TO THE FILE OF AO, THIS ISSUE WILL BECOME ACADEMIC ONLY. WITH THE ABO VE OBSERVATIONS THE APPEAL FILED BY THE ASSESSEE IS CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 02/04/2014 . . ) ,-# / 0'1 02/04/2014 - ) 2 SD/- SD/- (RAJENDRA) . . (I.P.BANSAL) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 0' DATED 02/04/2014 . ' . .VM , SR. PS ./ I.T.A. NO.1196/MUM/2011 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2006-07 4 . . . . ) )) ) '*3 '*3 '*3 '*3 43#* 43#* 43#* 43#* / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT. 3. 5 ( ) / THE CIT(A)- 4. 5 / CIT 5. 362 '*' , , / DR, ITAT, MUMBAI 6. 27 8 / GUARD FILE. .' .' .' .' / BY ORDER, (3* '* //TRUE COPY// 9 99 9 / : : : : (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI