RANJANBEN HASMUKH SHAH, MUMBAI V. ACIT 19(2), MUMBAI

ITA 1198/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4071 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 24-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UDAY B JAKKE
• Assessee Lawyers: DR P DANIEL
• Keywords: Unexplained cash credit; Search and seizure; Opportunity of being heard
• Section: 147; 68; 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , , BEFORE S/SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN, J UDICIAL MEMBER ./ I.T.A. NO. 1198 / MUM/ 201 4 ( / ASSESSMENT YEAR : 20 0 4 - 05 ) SMT.RANJANBEN HASMUKH SHAH, 3 - VEER BUILDING, 21, TAGORE ROAD, SANTACRUZ (W), MUMBAI - 400054 / VS. ASSTT. COMMISSIONER OF INCOMNE TAX, 19(2), MUMB AI . ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AAPPS4173H / APPELLANT BY : DR.P DANIEL / RESPONDENT BY : SHRI UDAY B JAKKE / DATE OF HEARING : 3 .12. 2015 / DATE OF PRONOUNCEMENT : 3. 2 . 201 6 O R D E R PER SANDEEP GOSAIN, JM : THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2004 - 05 , IN WHICH SHE HAS MADE A GRIEVANCE THAT THE LD. CIT(A) DID NO T GRANT SUFFICIENT OPPORTUNITY OF BEING HEARD AND ERRED IN CONFIRMING THE ACTION OF THE AO IN ASSESSING LONG TERM CAPITAL GAIN AS UNEXPLAINED CASH CREDIT U/S 68 OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.2,08,845/. 2. THE ASSESSEE IS AN INDIVIDUAL AND FILED RETURN OF INCOME AT RS.5,33,329/ - ON 30.3.2005. ON THE BASIS OF INFORMATION RECEIVED FROM DDIT(INV), UNIT 1(4), MUMBAI A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON THE GROUP OF COMPANIES AND OTHER ENTITIES MANAGED AND CONTROLLED BY ONE MR.MUKES H CHOKSHI AND HIS ASSOCIATE MR. JAYESH SAMPAT. ON ITA NO. 1198 / MUM/ 201 4 2 PERUSAL OF THE RECORD, THE AO OBSERVED THAT THE ASSESSEE HAS SOLD SHARES OF M/S BUNIYAD CHEMICALS AT RS.2,08,845/ - WHICH WAS PURCHASED AT RS.2467/ - ON 17.5.2001. AFTER CLAIMING INDEXATION ON THE COST, THE TAXABLE LONG TERM CAPITAL GAINS HAS BEEN SHOWN AT RS.2,06,377/ - . THE AO PROCESSED THE CASE U/S 147 AND 148 OF THE ACT. AFTER CONSIDERING THE DETAILS SUBMITTED BY THE ASSESSEE, THE AO DID NOT FAVOUR THE ASSESSEE AND A SUM OF RS.2,08,854/ - WAS ADDED T O THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 68 INSTEAD OF TREATING IT AS LONG TERM CAPITAL GAINS. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED APPEAL BEFORE LD.CIT(A), WHO IN TURN CONFIRMED THE ACTION OF THE AO ON THE GROUND THAT DESPITE OF HAVING GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, SHE FAILED TO SUBSTANTIATE HER CASE. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORD. BEFORE US, THE LD.AR OF THE ASSESSEE HAS SUBMITTED THAT THE AO MADE AN ADDITION U/S 68 AND THE LD.CIT(A) CONFIRMED HIS ACTION. BEFORE, THE LD. CIT(A) , SHE COULD NOT EXPRESS HER STAND FOR WANT OF SUFFICIENT OPPORTUNITY AND THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. THE LD. AR BEFORE US, NOW PRAYED THAT IF ONE MORE OPPORTUNITY IS GRANTED TO THE ASSESSEE, SHE WOULD BE ABLE TO PROVE HER CASE ON MERIT AND HENCE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR FRESH APPLICATION OF MIND. WE FIND MERIT IN THE CONTENTION OF THE LD. AR. WE FIND THAT THOUGH THE L D. CIT(A) TIME AND AGAIN GIVEN SUFFICIENT OPPORTUNITY TO THE APPELLANT BUT EVEN THEN THE ASSESSEE DID NOT PRODUCE HERSELF WITHOUT ANY PLAUSIBLE REASON, IF THE ASSESSEE WOULD GET ONE MORE OPPORTUNITY OF BEING HEARD AND NO PREJUDICE WOULD BE CAUSED TO THE REVENUE . UNDER THE CIRCUMSTANCES, IN OUR VIEW, THE ENDS OF JUSTICE WOULD MEET, IF THE COST IS IMPOSED FOR SUCH NEGLIGENCE ON THE PART OF THE ASSESSEE. ACCORDINGLY, WE CALLED UPON THE ASSESSEE TO DEPOSIT A SUM OF RS.10,000/ - ON OR BEFORE 28 TH FEB 2016. ACCORDINGLY, ON THIS CONDITION WE SET ASIDE THE ORDER OF T HE ITA NO. 1198 / MUM/ 201 4 3 LD.CIT(A) AND RESTORE THIS APPEAL TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO FURNISH INFORMATION AND DOCUMENTS FOR REDRESSEL OF HER GRIEVANCE. ACCORDINGLY, WE ALLOW THIS APPEAL FOR STATISTICAL PURPOSES AND FOR FRESH APPLICATION OF MIND BY THE LD. CIT(A). 4. RESULTANTLY, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 3RD FEB , 2016. SD SD ( . . / B.R.BASKARAN) ( / SANDEEP GOSAIN) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI ; DATED . 3RD , FEB , 2016 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY ( ASSTT. REGISTRAR) , /ITAT, MUMBAI