ANURADHA K KAMATH, MUMBAI V. ITO WD 19(1)(1), MUMBAI

ITA 1219/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3540 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 09-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 02-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Opportunity of being heard; Opportunity of cross examination

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI . . , , ! ' #$, % , & BEFORE SHRI R.C.SHARMA, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.1219/M/15 ( %' !( / ASSESSMENT YEAR: 2005-06) SMT. ANURADHA K. KAMATH 3 RD FLOOR, SHANKAR SETH MANSION, 296- A, TARDEO ROAD, MUMBAI - 400007 ' / VS. INCOME TAX OFFICER WARD 19(1)(1) [EARLIER ITO 16(2)(2)] ROOM NO.223, 2 ND FLOOR, MATRU MANDIR, MUMBAI - 400007 ./ ./ PAN/GIR NO. : AAGPK2660Q ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 13.05.2016 !' /DATE OF PRONOUNCEMENT: 25.05.2016 #$ / O R D E R PER AMARJIT SINGH, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 15.12.2014 PASSED BY THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) 30, MUMBAI [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO THE A.Y.2005-06. ASSESSEE BY: SHRI G. P. MEHTA DEPARTMENT BY: SHRI VISHWAS JADHAV ITA NO.1219/MUM/15 A.Y.2005-06 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL:- '1. THE LEARNED ASSESSING OFFICER {THE INCOME TAX OFFICER, WARD 19(1)(1), MUMBAI} HAS ERRED IN ADDING AN AMOUNT OF RS.7,38,575/-AS A UNDISCLOSED INCOME OF THE IT ACT, 1961 AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 30 HAS FURTHER ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER. 2. THE LEARNED ASSESSING OFFICER [THE INCOME TAX OFFICER, WARD 19(1)(1), MUMBAI] HAS ERRED IN DISALLOWING THE REBATE/S 88 OF THE ACT, 1961 AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 30 HAS FURTHER ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER. 3. THE LEARNED ASSESSING OFFICER {THE INCOME TAX OFFICER, WARD 19(1)(1), MUMBAI}HAS ERRED IN DISALLOWING AN AMOUNT OF RS.76,229/- AS MUNICIPAL TAXES PAID ON HOUSE PROPERTY INCOME AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 30 HAS FURTHER ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER. 3. WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEAR NED REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECOR D CAREFULLY. INFACT THE ASSESSEE DID NOT ARGUE THE CASE ON MERITS BUT M OVED AN APPLICATION UNDER RULE 11 OF THE INCOME TAX RULES, 1963 SEEKIN G THE PERMISSION TO RAISE ADDITIONAL GROUND. THE ASSESSEE HAS RAISE D THE FOLLOWING TWO ADDITIONAL GROUNDS:- '1. THE ASSESSMENT ORDER PASSED IS AB-INTIO VOID, IN AS MUCH AS MATERIAL INCLUDING STATEMENT OF SHRI MUKESH CHOKSEY, BASED ON WHICH, BELIEF OF ESCAPEMENT OF INCOME WAS ITA NO.1219/MUM/15 A.Y.2005-06 3 FORMED, WAS NEVER PROVIDED TO THE APPELLANT AND NO OPPORTUNITY OF BEING HEARD ON THE SAID MATERIAL WAS GRANTED PRIOR TO MAKING ADDITION TO THE RETURNED INCOME AT RS.7,38,575/-. 2. THE ASSESSMENT ORDER PASSED IS AN-INITIO VOID, IN AS MUCH AS, NO OPPORTUNITY WAS GRANTED TO CROSS EXAMINE SHRI MUKESH CHOKSEY, ON THE BASIS OF WHOSE TESTIMONY ADDITIONS TO THE RETURNED INCOME HAS BEEN MADE. 4. WE HAVE GONE THROUGH THE ASSESSMENT ORDER AS WEL L AS THE ORDER PASSED BY THE LEARNED CIT(A) ON RECORD. INFACT THE ADDITION OF UNDISCLOSED INCOME WAS MADE ON THE BASIS OF THE MAT ERIAL AVAILABLE FROM SHRI MUKESH CHOKSEY AS WELL AS IN VIEW OF THE STATEMENT MADE BY THE SHRI. MUKESH CHOKSEY. THERE IS NOTHING ON RE CORD TO WHICH IT CAN BE ASSUMED THAT THE MATERIAL WHICH WAS RECOVERE D FROM SHRI. MUKESH CHOKSEY WAS HANDED OVER TO THE ASSESSEE AND THE STATEMENT OF SHRI. MUKESH CHOKSEY RECORDED BY THE AUTHORITY W AS ALSO HANDED OVER TO THE ASSESSEE. EVEN THERE IS NOTHING ON REC ORD TO WHICH IT CAN BE ASSUMED THAT AN OPPORTUNITY OF CROSS EXAMINATION IF ANY WAS GIVEN TO THE ASSESSEE BEFORE CONSIDERATION THE STATEMENT OF SHRI. MUKESH CHOKSEY WHILE CONCLUDING THE ASSESSMENT OF THE ASSE SSEE ON RECORD. ANYHOW, THE APPLICATION SEEMS JUSTIFIABLE ON RECORD AND THIS TRIBUNAL IS OF THE VIEW THAT BEFORE PASSING AN ORDER OF ASSE SSMENT THE MATERIAL WHATEVER WAS RECOVERED FROM SHRI. MUKESH CHOKSEY IS REQUIRED TO BE PROVIDED TO THE ASSESSEE AND IF THE ASSESSEE DESIRE D TO CROSS EXAMINE ITA NO.1219/MUM/15 A.Y.2005-06 4 SHRI. MUKESH CHOKSEY THEN IN THESE CIRCUMSTANCES TH IS OPPORTUNITY WAS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE CON CLUDING ASSESSMENT. IN THIS REGARD WE ALSO PLACED RELIANCE UPON THE JUDGEMENT DATED 2 ND SEPTEMBER, 2015, [2015] 127 DTR (SC) 241 IN THE CA SE OF ANDAMAN TIMBER INDUSTRIES VS. COMMISSIONER OF CENTR AL EXCISE. IN VIEW OF THE ABOVE SAID CIRCUMSTANCES AND WITHOUT CO MMENTING UPON THE MERITS OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSMENT IS REQUIRED TO BE CONCLUDED AFTER GIVING AN OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE AND TO PROVIDE HIM THE NECESSARY DOCUM ENTS RECOVERED FROM THE SHRI. MUKESH CHOKSEY. HENCE, WE ADMIT THE ADDITIONAL GROUND RAISED U/S.11 OF THE INCOME TAX RULES 1963 A ND SET ASIDE THE ASSESSMENT ORDER IN THE INTEREST OF JUSTICE AND REM AND THE CASE TO THE ASSESSING OFFICER TO DECIDE THE MATTER AFRESH AFTER GIVING THE MATERIAL DEMANDED BY THE ASSESSEE IN VIEW OF AN APPLICATION RAISED U/S.11 OF THE INCOME TAX RULES 1963 AND PROVIDING HIM AN OPPO RTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. THEREFORE, THE ORDER OF THE LEARNED CIT(A) IS HEREBY ORDERED TO BE SET ASIDE AN D THE CASE IS REMANDED BACK BEFORE ASSESSING OFFICER TO ADJUDICA TE THE MATTER AFRESH IN VIEW OF THE ABOVE MENTIONED OBSERVATIONS. 5. ACCORDINGLY THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1219/MUM/15 A.Y.2005-06 5 ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MAY , 2016. SD/- SD/- (R.C.SHARMA) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED :25 TH MAY, 2016 MP MP MP MP * +%'#, -,(' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ' / BY ORDER, - & //TRUE COPY// ./$ /(DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI