UTTAM S. MAJI, MUMBAI V. ITO 25(1)(2), MUMBAI

ITA 157/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3752 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 06-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A L SHARMA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MU MBAI BEFORE SHRI JASON P BOAZ, AM AND SHRI SANDEEP GOSAI N, JM ./ I.T.A. NO. 157/MUM/2014 ( / ASSESSMENT YEAR: 2008-09) MR. UTTAM S. MAJI ROOM NO. D-101, SHYAM UPVAN CHSL, MAHAJAN WADI, GAVTHAN, NEAR W. HIGHWAY PRASAD HOTEL, MIRA ROAD-EAST, THANE-401107. / VS. THE INCOME TAX OFFICER, ITO-25 (1)-2, MUMBAI. ./ ./PAN/GIR NO. AGIPM 9974D ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI A.L. SHARMA / RESPONDENT BY : SHRI ANIL KUMAR DAS / DATE OF HEARING : 27/04/2016 !'# / DATE OF PRONOUNCEMENT : 11/05/2016 $% / O R D E R PER SANDEEP GOSAIN, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)- 11, IN APPEAL NO.CIT(A)-11/CIR-25/10- 11/12-13/481-U DATED 17.10.2013 FOR ASSESSMENT YEA R 2008-09 ON THE FOLLOWING GROUNDS: 2 ITA NO. 157/MUM/2014 (A.Y. 2008-09) UTTAM S. MAJI VS. ITO 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A)-11, MUMBAI, HAS ERRED IN CONFIRMING THE ADDI TION OF RS.12,55,100/- OF CASH DEPOSITS CONSIDERING IT AS UNEXPLAINED MONE Y NOT RECORDED IN THE BOOKS OF ASSESSEE U/S 69A OF THE I.T. ACT,1961 WITH OUT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE CASE OF THE ASSESEE WAS SELECTED FOR SCRUTINY UNDER CASS HAVING AIR OF CASH DEPOSITS OF RS.12,55,100/-. AFTER SERVING NOTICE AND SEEKING REPLY FROM THE ASSESSEE, THE ASS ESSMENT ORDER U/S 143(2) OF THE INCOME TAX ACT, 1961 WAS PASSED BY AO DATED ON 10.1 2.2010 THEREBY ADDING BACK AN AMOUNT OF RS.12,55,100/- TO THE ASSESSEES TOTAL INCOME U/S 69A OF THE INCOME TAX ACT,1961 AS UNEXPLAINED MONEY FOUND WHIC H IS RECORDED IN THE ASSESSEES BOOKS OF ACCOUNT. AGGRIEVED BY THE ORDER OF THE ASSESSMENT, ASSESSEE FILED APPEAL BEFORE THE LEARNED CIT(A) AND THE LEAR NED CIT(A) AFTER CONSIDERING THE CASE OF THE ASSESSEE DISMISSED THE ASSESSEES APPEAL VIDE ORDER DATED 17-10- 2013. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A), THE ASSESSEE HAS PREFERRED APPEAL BEFORE US ON THE AFOREMENTIONED GROUNDS. 3 ITA NO. 157/MUM/2014 (A.Y. 2008-09) UTTAM S. MAJI VS. ITO GROUND NO. 1 3. THE SOLE GROUND RAISED BY ASSESSEE BEFORE US IS THAT CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS.12,55,100/- OF CASH DEPOS ITS CONSIDERING WHICH AS UNEXPLAINED MONEY NOT RECORDED IN THE BOOKS OF ACCO UNTS OF ASSESSEE U/S 69A OF THE INCOME TAX ACT, 1961 WITHOUT ALLOWING REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. AT THE VERY OUTSET, THE LD. AR APPEARING ON BEHA LF OF THE ASSESSEE SUBMITTED THAT THE AO HAD MADE ADDITIONS IN THE TOTAL INCOME OF THE ASSESSEE SOLELY ON THE GROUND THAT THE ASSESSEE COULD NOT PRODUCE ANY RECO RD IN ORDER TO JUSTIFY ENTRIES CONTAINED IN THE RECORDS THEREFORE, THE SAME WAS CO NSIDERED AS UNEXPLAINED MONEY. IT WAS FURTHER ARGUED BY LD. AR THAT THE ASSESSEE H AD MOVED AN APPLICATION ALONG WITH DOCUMENTS FOR LEADING ADDITIONAL EVIDENCE BEFO RE THE CIT(A), BUT THE SAID PERMISSION FOR LEADING ADDITIONAL EVIDENCE WAS NOT ALLOWED BY THE CIT(A). THEREFORE, THE ASSESSE HAS AGAIN MOVED A LETTER FOR ADDITIONAL EVIDENCE WHICH IS AT PAGE NO.1 OF THE PAPER BOOK ALONG WITH THAT THE ASS ESSEE HAS ALSO PLACED ON RECORD RELEVANT DOCUMENTS WHICH ARE AT PAGE NO.2 TO 38 IN THE PAPER BOOK. 4 ITA NO. 157/MUM/2014 (A.Y. 2008-09) UTTAM S. MAJI VS. ITO 5. WE HAVE CONSIDERED THE APPLICATION/LETTER FILED BY ASSESSEE BEFORE US FOR SEEKING PERMISSION FOR LEADING ADDITIONAL EVIDENCE TO ADMIT THE DOCUMENTS ON RECORD WHICH ARE AT PAGE NO.2TO 38 WHICH INCLUDES L IST OF PERSONS WHOSE CASH WAS SENT TO NATIVE PLACE AND CONFIRMATION OF PERSONS AL ONG WITH THEIR PAN CARDS AND AADHAR CARDS. 6. THE LEARNED DR APPEARING ON BEHALF OF REVENUE ST RESSED FOR DISMISSING THE SAID APPLICATION FOR LEADING ADDITIONAL EVIDENCE AN D SUPPORTED THE ORDERS OF LOWER AUTHORITIES. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS PLACED ON RECORD AND CAREFULLY CONSIDERED THE ORDERS PASSED BY THE L OWER AUTHORITIES. AT THE VERY OUTSET WE HAVE ANALYSED PARA NUMBER 8 OF THE LEARNE D CIT(A) ORDER WHICH IS REPRODUCED BELOW: IN RESPONSE TO THE HEARING NOTICE ISSUED BY THE UN DERSIGNED ONE SHRI. G.L. RANKA, CA APPEARED BEFORE THE UNDERSIGNED AND FILED HIS AUTHORITY LETTER SIGNED BY THE ASSESSEE. HE OFFERED TO PRODUCE THE CASH BOOK OF THE ASSESSEE FOR THE PERIOD UNDER CONSIDERA TION AS ALSO THE WORKERS WHO HE CLAIMED HAD GIVEN THE CASH TO THE AS SESSEE. HE WAS REQUIRED BY THE UNDERSIGNED TO JUSTIFY AS WHY THE A SSESEE COULD NOT PRODUCE SUCH ADDITIONAL EVIDENCES AT THE TIME OF TH E ASSESSMENT PROCEEDINGS. HIS EXPLANATION FILED IN WRITING ON 10 -10-2014 SPEAKS OF 5 ITA NO. 157/MUM/2014 (A.Y. 2008-09) UTTAM S. MAJI VS. ITO THE NOTICE OF HEARING ISSUED BY THE ASSESSEE NOT BE ING SERVED ON THE ASSESSEE. IT IS TRUE THAT THE NOTICES COULD NOT BE SERVED ON THE ASESSEE NOT AT THE ADDRESS GIVEN IN THE RETURN OF INCOME BU T AT THE HOOGHLY ADDRESS AVAILABLE ON THE INSURANCE RECEIPT FILED WI TH THE RETURN BUT THE FAULT FOR THE SAME LIES ON THE ASSESSEE WHO WAS NOT AVAILABLE AT THE ADDRESS GIVEN IN THE RETURN OF INCOME FILED. NO CHA NGE OF ADDRESS WAS COMMUNICATED TO THE AO. AFTER ANALYISING THE AFORESAID PORTION OF THE CIT( A), WE FOUND THAT THE ASSESSEE HAD MADE SIMILAR REQUEST BEFORE THE CIT(A) , BUT THE CIT(A) TURNED DOWN THE SAID REQUEST OF ASSESSEE FOR LEADING ADDITIONAL EVIDENCE ON THE GROUND THAT THE ASSESSEE COULD NOT JUSTIFY AS TO WHY ASSESSEE FAIL TO PRODUCE SUCH ADDITIONAL EVIDENCE AT THE TIME OF ASSESSMENT PROCEEDING. 5. CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE, F AIR PLAY AND EQUITY WE ARE OF THE CONSIDERED VIEW THAT NO PREJUDICE WOULD BE CAUS E TO THE REVENUE IN CASE THE DOCUMENTS PRODUCED BY THE ASSESSEE IN SUPPORT OF HI S DEFENCE ARE ADMITTED AS ADDITIONAL EVIDENCE. WHEREAS, ON THE CONTRARY, IN C ASE THE DOCUMENTS PRODUCED BY THE ASSESSEE ARE NOT ADMITTED AS ADDITIONAL EVIDENC E THEN IN THAT EVENTUALITY THE RIGHTS OF THE ASSESSEE WOULD BE PREJUDICE. THEREFOR E, CONSIDERING THE AFORE SAID CIRCUMSTANCES AND IN THE INTEREST OF SUBSTANTIAL CA USE WE ADMIT THE DOCUMENTS AT PAGE NO.2 TO 38 OF THE PAPER BOOK AS ADDITIONAL EVI DENCE. HENCE, WHILE SETTING ASIDE THE ORDER OF AO, WE REVERT BACK THE CASE TO T HE FILE OF THE AO WITH A DIRECTION 6 ITA NO. 157/MUM/2014 (A.Y. 2008-09) UTTAM S. MAJI VS. ITO TO VERIFY AND CONSIDER THE DOCUMENTS NOW ADMITTED A S ADDITIONAL EVIDENCE AND TO PASS FRESH ORDER OF ASSESSMENT. NEEDLESS TO SAY, TH E AO WOULD PROVIDE ADEQUATE OPPORTUNITY TO BOTH THE PARTIES BEFORE PASSING THE FRESH ORDER OF ASSESSMENT. THEREFORE THIS GROUND IS ALLOWED FOR STATISTICAL PU RPOSES. GROUND NO. 2 IS GENERAL IN NATURE AND NEEDS NO SEPA RATE ADJUDICATION IN VIEW OF THE DECISION ON ABOVE GROUND. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MAY, 2016 SD/- SD/- (JASON P. BOAZ) (SANDEEP GOSAIN) $ / ACCOUNTANT MEMBER &' $ / JUDICIAL MEMBER ( ) MUMBAI; *$ DATED : 11.05.2016 PS. ASHWINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 , 12# , ( ) / DR, ITAT, MUMBAI 6. 045 6 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI