KAMLA DEVI DEVICHAND SHAH, MUMBAI V. ITO-21(2)(1), MUMBAI

ITA 1361/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8373 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 07-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R BHOOPATHI
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3); 133A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H, BENCH MUM BAI BEFORE SHRI G. MANJUNATHA, ACCOUNTANT MEMBER & SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.1361/MUM/2019 ( ASSESSMENT YEAR: 2008-09 ) KAMLADEVI DEVICHAND SHAH 8/805, B WING VENUS TOWER, VEERA DESAI ROAD, AZAD NAGAR, ANDHERI(W) MUMBAI-400 058 VS. ITO-21(2)(1) PIRAMAL CHAMBES LALBAUGN PAREL MUMBAI-400 012 PAN/GIR NO. AHTPS8327C APPELLANT ) .. RESPONDENT ) ASSESSEE BY NONE REVENUE BY SHRI R.BHOOPATHI, DR DATE OF HEARING 25/02/2020 DATE OF PRONOUNCEME NT 20/05 /2020 / O R D E R PER G.MANJUNATHA (A.M) : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST, THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)48, MUMBAI, DATED 26/11/2018 AND IT PERTAINS TO ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. NATURAL JUSTICE-THE LD. COMMISSIONER OF INCOME T AX (APPEAL)-48, MUMBAI, ERRED IN NOT GIVING SUFFICIENT, PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE APPELLANT WHILE CONFIRMING THE O RDER U/S 143(3) R.W.S. 147 OF THE ACT PASSED BY THE LD. AO. IT IS SUBMITTE D THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE ASSE SSMENT SO FRAMED BE HELD AS BAD AND ILLEGAL, AS THE SAME IS FRAMED IN B REACH OF THE PRINCIPLES OF NATURAL JUSTICE. ON THE FACT AND CIRCUMSTANCES OF THE CASE IT IS SUB MITTED THAT ALLT HE COMMUNICATIONS OF THE DEPARTMENT WERE HAD BEEN RECE IVED BY THE EARLIER COUNSEL MR. K.C.RATHI OF THE APPELLANT, HE WAS THE ONLY PERSON WHO WAS ITA NO.1361/MUM/2019 KAMLADEVI DEVICHAND SHAH 2 LOOKING INTO THE APPELLANTS TAXATION MATTER AND KE PT ALL THE DOCUMENTS. THE EARLIER COUNSEL OF THE APPELLANT HAS BEEN EXPIR ED, HENCE, NO DOCUMENTS WERE SUBMITTED BEFORE THE CIT(A). 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD.CIT(A) LEGALLY ERRED IN CONFIRMING THE ORDER U/S 143(3) R. W.S. 147 OF THE ACT PASSED BY AO. 2.1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) CONFIRMED THE DECISION OF THE AO, IN RESPECT OF ADD ITION OF RS.3,00,000/- AS BOGUS LONG TERM CAPITAL GAIN U/S 68 OF THE INCOM E TAX ACT, 1961. 2.2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) CONFIRMED THE DECISION OF THE AO IN NOT PROVING THE SALE OF MMTC SHARES INAY 2008-09 AFTER MAKING ENQUIRY FROM NATIONAL STO CK EXCHANGE AND INTERCONNECTED STOCK EXCHANGE OF INDIA LTD. ((ISE) DATED 05/12/2015. THE LD.CIT ERRED IN CONFIRMING THE DECISION OF AO OF DE CISION WITHOUT DETERMINING CREDIT VALUE OF RS.3,00,000/- IN THE BO OKS OF ACCOUNTS OF THE APPELLANT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL, DERIVES INCOME FROM SHARE TRADING AND I NCOME FROM OTHER SOURCES ETC., FILED HER RETURN OF INCOME FOR AY 200 8-09 ON 30/07/2008, DECLARING TOTAL INCOME OF RS.1,43,235/- . THE ASSESSMENT HAS BEEN REOPENED ON THE BASIS OF INFORM ATION GATHERED DURING THE SURVEY ACTION U/S 133A OF THE I.T.ACT, 1 961, IN THE PREMISE OF SHRI KAMLA KISHORE RATHI AND THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) R.W.S. 147 OF THE ACT, AND DET ERMINED TOTAL INCOME AT RS.4,43,240/- BY INTER-ALIA MAKING ADDITI ONS TOWARDS UNEXPLAINED CASH CREDIT U/S 68 OF THE I.T.ACT, 1961 FOR RS. 3 LACS, IN RESPECT OF SALE PROCEEDS OF SHARES. THE ASSESSEE CA RRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A), BUT COULD NOT APPEA R TO JUSTIFY HER CASE. THEREFORE, THE LD.CIT(A) HAS DISMISSED APPEAL FILED BY THE ASSESSE EX-PARTE , ON THE BASIS OF INFORMATION AVAILABLE ON RECORD. AGGRIEVED BY THE LD.CIT(A) ORDER, THE ASSESSEE IS I N APPEAL BEFORE US. ITA NO.1361/MUM/2019 KAMLADEVI DEVICHAND SHAH 3 4. NONE APPEARED FOR THE ASSESSEE. WE HAVE HEARD T HE LD. DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE F IND THAT THE LD.CIT(A) HAS DISMISSED APPEAL FILED BY THE ASSESS EE IN-LIMINE FOR NON APPEARANCE OF THE ASSESSEE FOR HEARING ON THE D ATES FIXED FOR DISPOSAL OF APPEAL AS NOTED BY THE LD.CIT(A) IN PAR A 2.1 OF HIS APPELLATE ORDER. AS PER THE LD.CIT(A), ALTHOUGH FOU R OPPORTUNITIES OF HEARING WAS GIVEN TO THE ASSESEE, BUT THE ASSESSEE EXCEPT IN ONE DATE, NEITHER APPEARED, NOR SOUGHT ADJOURNMENT. TH EREFORE, THE LD.CIT(A) DISPOSED-OFF OF THE APPEAL IN-LIMINE, BUT SUCH APPEAL HAS BEEN DISPOSED OF WITHOUT DISCUSSING THE ISSUES ON M ERITS, IN LIGHT OF VARIOUS GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IN ITS MEMORANDUM OF APPEAL. NO DOUBT, IT IS THE DUTY OF THE PERSON, WHO FILED APPEAL, IS TO GO BEFORE THE AUTHORITIES AND P RESENT ITS CASE FOR SPEEDY DISPOSAL OF APPEAL. FURTHER, IF THE PERSON, WHO FILED APPEAL, DOES NOT APPEARED BEFORE THE AUTHORITIES ON THE DAT ES FIXED FOR DISPOSAL OF APPEAL, THEN THE APPELLATE AUTHORITIES ARE AT LIBERTY TO DISPOSE APPEAL, BUT SUCH APPEALS SHOULD BE DISPOSED OFF, ON MERITS ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. IN T HIS CASE, NEITHER THE ASSESSEE APPEARED BEFORE THE LD.CIT(A) TO PRESENT I TS CASE, NOR THE LD.CIT(A) DISPOSED OF THE APPEAL ON MERITS. THEREFO RE, WE ARE OF THE CONSIDERED VIEW THAT IN ORDER TO GIVE ONE MORE OPPO RTUNITY TO THE ASSESSEE, THE ISSUE HAS BEEN SET ASIDE TO THE FILE OF THE LD.CIT(A) AND DIRECT HIM TO DECIDE THE ISSUE ON MERITS IN ACC ORDANCE WITH LAW. NEEDLESS TO SAY, THE ASSESSEE SHALL GO BEFORE THE L D.CIT(A) AND PRESENT HERS CASE WITH NECESSARY EVIDENCES. ITA NO.1361/MUM/2019 KAMLADEVI DEVICHAND SHAH 4 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20/05/ 2020 SD/- (RAVISH SOOD) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 20/05/2020 THIRUMALESH SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//