BHUPINDER SINGH GHUMMAN, MUMBAI V. ITO 13(1)(2), MUMBAI

ITA 1214/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0350 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 21-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: Y P TRIVEDIMS USHA DALAL
• Keywords: Opportunity of being heard; Application of stay; Accommodation entries
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO.1214/MUM/2017 (AY 2008-09) BHUPENDER SINGH GHUMMAN, 201, PLOT NO. 53, ROAD NO.12, J.V.P.D. SCHEME, MUMBAI-400049. VERSUS ITO 13(1)(2), 1 ST FLOOR, ROOM NO.114, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. PAN NO.AACPG9569Q APPLICANT RESPONDENT SA NO. 14/MUM/2018 (AY 2008-09) BHUPENDER SINGH PRITAM SINGH GHUMMAN, 201, PLOT NO. 53, ROAD NO.12, J.V.P.D. SCHEME, MUMBAI-400049. VERSUS ITO 13(1)(2), 1 ST FLOOR, ROOM NO.114, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. PAN NO.AACPG9569Q APPLICANT RESPONDENT APPLICANT BY SHRI Y.P.TRIVEDI / MS. USHA DALAL (AR) RESPONDENT BY SHRI SUMAN KUMAR (DR) DATE OF HEARING: 05/02/2018 DATE OF ORDER: 05/02/2018 ORDER PER PAWAN SINGH, JUDICIAL MEMBER : 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF THE IN COME TAX ACT (THE ACT) IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-28, MUMBAI DATED 21.11.2016 FOR ASSESSMENT YEAR (AY) 2012-13, WHICH IN TURN ARISES FROM THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 DATED 21.03. 2014. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) (H EREINAFTER REFERRED TO AS THE 'CIT(A)') ERRED IN LAW AND ON THE FACTS, BY PASSING AN ORDER, 'INVALID' IN LAW, AS THE SAME HAS BEEN PASSED WITHO UT GIVING THE APPELLANT AN OPPORTUNITY OF BEING HEARD. 2 ITA NO. 1214/M/17 & SA NO.14/M/18- BHUPENDER SINGH GHUMMAN 2. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS BY UPH OLDING THE ADDITION OF RS. 4,96,11,920/- U/S 69 OF THE ACT 3. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS BY UPH OLDING AN ADDITION OF RS. 2,22,993/- UNDER THE HEAD 'INCOME FROM OTHER SO URCES' ON ACCOUNT OF PROFESSIONAL FEES ALLEGED TO HAVE BEEN EARNED/RECEI VED BY THE APPELLANT. 4. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS BY UPH OLDING AN ADDITION OF RS. 1,19,800/- UNDER THE HEAD 'INCOME FROM OTHER SO URCES' ON ACCOUNT OF INTEREST INCOME ALLEGED TO HAVE BEEN EARNED/RECEIVE D BY THE APPELLANT. 5. THE LEARNED CIT(A) ERRED IN LAW BY UPHOLDING THE DI SALLOWANCE OF THE APPELLANT'S CLAIM OF DEDUCTION @ 30% U/S 24(A) OF T HE ACT AMOUNTING TO RS. 1,02,600/- ON INCOME FROM HOUSE PROPERTY OF RS. 3,4 2,000/- RECEIVED FROM MTNL, MUMBAI AND CONSEQUENTLY UPHOLDING TAXING OF T HE SAID RECEIPTS UNDER THE HEAD 'INCOME FROM OTHER SOURCES' 6. THE APPELLANTS CRAVE LEAVE TO ADD TO, ALTER, MODIFY , SUBSTITUTE OR SUPPLEMENT THE AFORE-SAID GROUNDS AT OR BEFORE THE TIME OF HEA RING. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR RELEVANT AY ON 31.03.2009 DECLARING TAXABLE INCOME OF RS. 5, 95,532/-. THE RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1) AND WAS A CCEPTED. THE ASSESSMENT WAS RE-OPENED UNDER SECTION 147 OF THE ACT. NOTICE UNDER SECTION 148 DATED 28.03.2013 WAS SERVED UPON THE ASSESSEE ON 30.03.20 13. THE ASSESSMENT WAS RE- OPENED ON THE BASIS OF INFORMATION RECEIVED FROM TH E OFFICE OF LD. CIT CENTRAL- IV, MUMBAI DATED 19.03.2013 REGARDING ACCOMMODATION ENTRIES PROVIDED BY M/S MAHASAGAR SECURITIES & MUKESH CHOKSI GROUP. THE AO WAS INFORMED THAT A SEARCH ACTION WAS CONDUCTED ON MUKESH CHOKSI GROU P ON 28.11.2009. DURING SEARCH STATEMENT OF SHRI MUKESH CHOKSI WAS RECORDED , WHEREIN HE ADMITTED THAT HIS GROUP WERE ENGAGED IN PROVIDING ACCOMMODATION E NTRIES RELATED WITH SHORT TERM CAPITAL GAIN (STCG) AND LONG TERM CAPITAL GAIN (LTCG) AND LOSS ON ACCOUNT OF COMMODITY TRADING, INTRODUCE SHARE APPLI CATION MONEY. ON FURTHER VERIFICATION, IT WAS FOUND THAT ASSESSEE WAS ONE OF THE BENEFICIARIES WHO HAVE AVAILED ACCOMMODATION ENTRIES FROM MUKESH CHOKSI. THE ASSESSEE FILED HIS REPLY IN RESPONSE TO THE NOTICE UNDER SECTION 148. IN REPLY THE ASSESSEE CONTENDED 3 ITA NO. 1214/M/17 & SA NO.14/M/18- BHUPENDER SINGH GHUMMAN THAT THE RETURN OF INCOME FILED ON 31.03.2009 BE TR EATED AS RETURN IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT. THE AO PRO CEEDED TO MAKE THE RE- ASSESSMENT. THE ASSESSMENT WAS COMPLETED ON 31.03.2 014 UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. WHILE PASSING THE ORDER ON R E-ASSESSMENT PROCEEDING, THE AO MADE THE ADDITION OF RS. 4,96,71,920/- UNDER SEC TION 69, ADDITION OF RS.2,22,993/- UNDER THE HEAD INCOME FROM OTHER SOUR CES ON ACCOUNT OF PROFESSIONAL FEES RECEIVED BY ASSESSEE, ADDITION OF RS. 1,19,800/- ON ACCOUNT OF INTEREST INCOME AND ADDITION OF RS. 1,02,600/- ON A CCOUNT OF INCOME FROM HOUSE PROPERTY. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VIDE ORDER IMPUGNED BEFORE US. BESIDES THE APPEAL, THE ASSESSE E HAS FILED THE STAY APPLICATION FOR SEEKING INJUNCTION AGAINST THE RECO VERY OF OUTSTANDING TAX DEMAND RAISED BY ASSESSING OFFICER. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AN D PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE ARG UED THAT LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GIVING OPPORTUNI TY TO THE ASSESSEE. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT THE NOTICE OF HEARING ON 15.03.2016 ISSUED BY LD CIT(A) WAS NOT RECEIVED BY THE ASSESSEE. THE ASS ESSEE MEET A MOTORCAR ACCIDENT ON 12.05.2016 AND SUFFERED SEVERE INJURY. THUS, THE SUBSEQUENT ON NOTICE RECEIVED FOR HEARING BEFORE LD CIT(A) ON 06. 10.2016 AND 17.11.2016, THE ASSESSEE COULD NOT ATTAINED THE PROCEEDING AS HE WA S IMMOBILIZED. THE NON- APPEARANCE OF ASSESSEE OR HIS REPRESENTATIVE BEFORE THE LD. CIT(A) WAS NEITHER INTENTIONAL NOR DELIBERATE BUT DUE TO THE BONAFIDE REASONS. THE LD. AR SUBMITS 4 ITA NO. 1214/M/17 & SA NO.14/M/18- BHUPENDER SINGH GHUMMAN THAT THE ASSESSEE HAS FILED HIS AFFIDAVIT IN STAY A PPLICATION. IT WAS SUBMITTED THAT THE ASSESSEE HAS GOOD CASE ON MERIT AND LIKELY TO S UCCEED, IF THE ASSESSEE IS GIVEN OPPORTUNITY OF HEARING AND APPEAL IS DECIDED ON MER IT. ON THE CONTRARY, THE LD. DR FOR THE REVENUE SUBMITS THAT THE ASSESSEE HAS NO T APPEARED BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS NO OPTION EXCEPT TO D ECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE BEFORE HIM. 4. WE HAVE CONSIDERED THE SUBMISSION OF THE PARTIES AN D HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE HAVE ALSO GONE THROUG H THE CONTENTS OF AFFIDAVIT FILED BY ASSESSEE IN SUPPORT OF HIS CONTENTION ABOU T THE NON-APPEARANCE BEFORE THE LD. CIT(A). IN OUR VIEW, THE ASSESSEE HAS SUFFI CIENT REASON FOR NON-APPEARANCE BEFORE THE LD. CIT(A). CONSIDERING THE FACT OF THE CASE THAT THE APPEAL OF THE ASSESSEE WAS DECIDED EX-PARTE, WITHOUT HEARING THE CONTENTION OF THE ASSESSEE. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AS EXPLAINED BEFORE US, WE DEEMED IT APPROPRIATE TO RESTORE THE APPEAL TO T HE FILE OF LD. CIT(A) TO DECIDE THE SAME ON MERIT AFTER GIVING REASONABLE AND SUFFI CIENT OPPORTUNITY TO THE ASSESSEE IN ACCORDANCE WITH LAW. NEEDLES TO SAY THA T THE ASSESSEE WILL FULLY COOPERATE AND FILE NECESSARY INFORMATION AND DOCUME NTS WHICH MAY BE REQUIRED BY LD. CIT(A) AND NOT TO SEEK ADJOURNMENT WITHOUT ANY VALID REASONS. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. S.A. NO. 14/MUM/2018 6. AS WE HAVE ALREADY RESTORED THE APPEAL OF THE ASSES SEE TO THE FILE OF LD. CIT(A) FOR DECIDING IT AFRESH. HENCE, THE STAY APPLICATION FILED BEFORE US HAS BECOME INFRUCTUOUS. HOWEVER, THE ASSESSEE IS AT LIBERTY TO APPROACH THE REVENUE AUTHORITIES FOR APPROPRIATE RELIEF IN ACCORDANCE WI TH THE PROVISIONS OF LAW. 5 ITA NO. 1214/M/17 & SA NO.14/M/18- BHUPENDER SINGH GHUMMAN 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE AND STAY APPLICATION IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON THI S 5 TH FEBRUARY 2018 SD/- SD/- ( B.R.BASKARAN ) (PAWAN SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 05/02/2018 S.K.PS / COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT.REGISTRAR) 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/