HEMANT D SHAH HUF, Mumbai V. ITO 27(1)(3), Mumbai

ITA 145/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8533 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 10-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHARM VEER SINGH
• Keywords: Unexplained expenditure
• Section: 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI N.K.PRADHAN, ACCOUNTANT MEMBER ITA NO.145/MUM/2019(A.Y.2010-11) HEMANT D. SHAH HUF 25/104, SATI KRIPA SHOPPING CENTRE, GARODIA NAGAR, GHATKOPAR (E) MUMBAI 400 077 PAN: AABHH2684E ..... . APPELLANT VS. ITO-27(1)(3) MUMBAI. ..... RESPOND ENT APPELLANT BY : NONE RESPONDENT BY : SHRI DHARM VEER S INGH DATE OF HEARING : 14/01/2020 DATE OF PRONOUNCEMENT : 14/01/2020 ORDER PER VIKAS AWASTHY, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX(APPEALS)-25, MUMBAI [IN SHORT THE CIT( A)] DATED 06/08/2018 FOR THE ASSESSMENT YEAR 2010-11. 2. THE NOTICE OF THE APPEAL WAS SENT TO THE ASSES SEE THROUGH RPAD ON 05/12/2019. AS IS EVIDENT FROM THE ACKNOWLEDGMENT CARD AVAILABLE ON RECORD, THE NOTICE WAS DULY SERVED ON THE ASSESSEE. DESPITE SE RVICE OF NOTICE NEITHER THE ASSESSEE NOR AUTHORIZED REPRESENTATIVE OF THE ASSES SEE WAS PRESENT IN THE COURT TO DEFEND THE APPEAL. IT SEEMS THAT ASSESSEE IS NOT I NTERESTED IN PURSUING THE MATTER 2 ITA NO.145/MUM/2019(A.Y.2010-11) BEFORE THE TRIBUNAL. THEREFORE, THE APPEAL IS TAKE N UP FOR ADJUDICATION WITH THE ASSISTANCE OF LD. DEPARTMENTAL REPRESENTATIVE AND T HE MATERIAL AVAILABLE ON RECORD. 3. THE BRIEF FACTS AS EMANATING FROM THE RECORDS AR E: THE ASSESSEE IS A TRADER IN SHARES AND DERIVATIVES. IN REASSESSMENT PROCEEDING S THE ASSESSING OFFICER MADE ADDITION OF RS.40,31,885/- IN RESPECT OF CLIENT COD E MODIFICATION AND RS.60,478/- ON ACCOUNT OF UNEXPLAINED EXPENDITURE UNDER SECTION 69 C OF THE ACT. AGGRIEVED AGAINST THE ASSESSMENT ORDER DATED 30/03/2016 PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE FIRST APPELLATE AUTHORITY REJECTED THE APPEAL OF ASSESSEE MERELY ON THE GROUND THAT THE APPEAL HAS NOT BEEN FILED IN E-MODE IN ACCORDANCE WITH RULE 45 & 46 OF THE INCOME TAX RULES, 1962 AS AMENDED BY INCOME TAX (THIRD AMENDMENT) RULES, 2016 W.EF. 01/03/2016. HENCE, THE PRESENT APPEAL B Y THE ASSESSEE. 4 SHRI DHARM VEER SINGH REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDING T HE IMPUGNED ORDER SUBMITTED THAT THE ASSESSEE WAS REQU IRED TO E-FILE THE APPEAL AS PER AMENDED RULES. SINCE, THE APPEAL HAS NOT BEEN FILE D IN THE PRESCRIBED MANNER, THE CIT(A) HAS RIGHTLY DISMISSED THE APPEAL OF ASSESS EE. THE LD. DEPARTMENTAL REPRESENTATIVE PRAYED FOR DISMISSING THE PRESENT AP PEAL OF THE ASSESSEE AND UPHOLDING THE ORDER OF CIT(A). 5. WE HAVE HEARD THE SUBMISSIONS MADE BY LD. DEPA RTMENTAL REPRESENTATIVE AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE SOLITARY REASON FOR DISMISSING THE APPEAL BY FIRST APPELLATE AUTHORITY WAS THAT TH E ASSESSEE HAS FAILED TO FILE THE APPEAL AS PER AMENDED IT RULES. THE APPEAL OF THE ASSESSEE HAS NOT BEEN ADJUDICATED BY THE CIT(A) ON MERITS. TAKING INTO C ONSIDERATION, ENTIRETY OF FACTS, WE DEEM IT APPROPRIATE TO RESTORE THIS APPEAL TO THE FILE OF CIT(A) FOR ADJUDICATION ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF HE ARING TO THE ASSESSEE, IN 3 ITA NO.145/MUM/2019(A.Y.2010-11) ACCORDANCE WITH LAW. THE ASSESSEE IS ALSO DIRECTED TO REMOVE THE DEFECTS IN FILING OF THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. T HE IMPUGNED ORDER IS SET-ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON TUESDAY , THE 14 TH DAY OF JANUARY, 2020. SD/- SD/- (N.K.PRADHAN) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 14/01/2020 VM , SR. PS(O/S) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI