SANJAY KUMAR SINGH, MUMBAI V. DCIT 24(2), MUMBAI

ITA 1583/MUM/2013

• Counselvise Citation: 158319914 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 11-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 26-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SACHIDANAND DUBEY
• Assessee Lawyers: VIPUL J SHAH
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

, , ,, , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI , .. , ! BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER . / ITA NO.1583/MUM/2013 ' ' ' ' #' #' #' #' / ASSESSMENT YEAR: 2008-09 SANJAY KUMAR SINGH, PLOT NO. 44, ROOM NO.44, SINDHESHWAR CHS LTD. SVP NAGAR MAHADA COMPLE. ANDHERI(W), MUMBAI-400053 VS. DCIT-24(2), C-13, 6 TH FLOOR, PRATYAKSHAKAR BHAVAN, BANDRA KURAL COMPLEX, BANDRA(E), MUMBAI-400051 ( $% / APPELLANT ) ( &'$% / RESPONDENT) P.A. NUMBER : BJWPS2299R $% ( ) / APPELLANT BY: SHRI VIPUL J. SHAH &'$% ( ) / RESPONDENT BY : SHRI SACHIDANAND DUBEY ( *+ / DATE OF HEARING : 11/12/2014 ,-# ( *+ / DATE OF PRONOUNCEMENT : 15/12/2014 O R D E R PER JOGINDER SINGH, JM: THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 31/01/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO CONFI RMING THE PENALTY OF RS.13,59,528/-. THE LD. COUNSEL FOR THE ASSESSEE, SHRI 2 SANJAY KUMAR SINGH . VIPUL J. SHAH, ADVANCED HIS ARGUMENTS IDENTICAL TO THE GROUND RAISED BY SUBMITTING THAT THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) DID NOT APPRECIATE THE FACT THAT THE ASSE SSING OFFICER ESTIMATED THE INCOME WITHOUT ANY MATERIAL ON RECORD AND FURTHER DID NOT PROVE THAT THE ASSESSEE EITHER CONCEALED IT S INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. I T WAS ALSO SUBMITTED THAT THE ASSESSING OFFICER HAS NOT MENTIO NED WHETHER THE PENALTY IS LEVIED FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS. ON THE OTHER HAND, THE LD. DR, SHRI SACHIDANAND DUBEY, SUPPORTED THE LEVY AS WELL AS CO NFIRMATION OF PENALTY. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSMENT WAS COMPLETED U/S 144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER THE ACT). THE ASSESSING OFFICER EST IMATED THE INCOME TO THE TUNE OF RS.80 LAKHS AGAINST DECLARATI ON OF RS.40 LAKH. THE ASSESSEE MAINLY RECEIVED CONTRACT CHARGE S FROM M/S BAJAJ ALLIANZ LIFE INSURANCE COMPANY LTD. AND CLAIM ED TO HAVE DEDUCTED TAX FOR WHICH TDS CERTIFICATE WERE SUBMITT ED DURING ASSESSMENT PROCEEDINGS. THE CLAIM OF THE ASSESSEE IS THAT THE ACCOUNTS OF THE ASSESSEE WERE DULY AUDITED UNDER TH E PROVISION OF SECTION 44AB OF THE ACT. BEFORE US, THE CLAIM O F THE ASSESSEE IS THAT, DURING ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOT COME ACROSS ANY MATERIAL PROVING THAT ANY INCOM E HAS NOT BEEN DISCLOSED. THE ASSESSEE PLACE RELIANCE UPON T HE DECISION IN 3 SANJAY KUMAR SINGH . HARIGOPAL SINGH VS CIT 258 ITR 85 (P & H), CIT VS NADIR ALI & COMP. 106 ITR 151 (ALL.), J. A. TRIVEDI BROTHERS VS CIT 158 IT 705 (MP), CIT VS METAL PRODUCTS OF INDIA 150 ITR 71 4 (P & H), NAVJEEVAN OIL MILLS VS CIT 255 ITR 417, ETC. WE HA VE PERUSED THE RECORDS AND MORE SPECIFICALLY THE PENALTY ORDER , WHEREIN, IT HAS BEEN MENTIONED THAT DURING ASSESSMENT PROCEEDIN GS, THE ASSESSEE DELIBERATELY DID NOT FILE THE REQUISITE DE TAILS, CONSEQUENTLY, IN VIEW OF NON-PRODUCTION OF BOOKS OF ACCOUNTS THE PROFIT SHOWN BY THE ASSESSEE AT RS.40,00,212/-(AGAI NST GROSS RECEIPTS OF RS.6,14,91,788/-) WAS ENHANCED TO RS.80 LAKH. IN PARA 3 OF THE PENALTY ORDER, IT HAS BEEN MENTIONED THAT THERE WAS NO RESPONSE TO THE SHOW CAUSE NOTICE, SINCE, THE PE NALTY WAS GETTING BARRED BY LIMITATION, THE PENALTY WAS LEVIE D. THERE IS NO MENTION IN THE PENALTY ORDER THAT THE SHOW CAUSE NO TICE WAS ACTUALLY SERVED UPON THE ASSESSEE. IN VIEW OF THES E FACTS, WE REMAND THIS FILE TO THE FILE OF THE LD. ASSESSING O FFICER TO ADJUDICATE THE ISSUE AFRESH AFTER EXAMINING THE CLA IM OF THE ASSESSEE AND MORE SPECIFICALLY, THE BOOKS OF ACCOUNTS/CORRECTNESS OF TRANSACTIONS DISCLOSED AND ITS NATURE FOR WHICH DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. THE ASSESSEE SHALL NOT SEEK ADJOURNMENT W ITHOUT ANY COGENT REASON AND SHALL FILE THE NECESSARY DETAILS WHICH COULD NOT BE FILED DURING ASSESSMENT STAGE AND SHALL COOPERAT E FOR EARLY DISPOSAL OF THIS APPEAL. THE ASSESSEE IS DIRECTED T O APPROACH THE OFFICE OF THE ASSESSING OFFICER WITHIN FIFTEEN DAYS FROM THE RECEIPT OF THIS ORDER. THE ASSESSING OFFICER IS FREE TO DEC IDE THE ISSUE ON 4 SANJAY KUMAR SINGH . A MUTUALLY AGREED DATE. IF THE ASSESSEE DOES NOT F ILE THE NECESSARY DETAILS THEN THE ASSESSING OFFICER IS FRE E TO ADJUDICATE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, APPEAL OF THE ASSESSEE IS ALLOWED FOR STAT ISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCL USION OF THE HEARING ON 11/12/2014. SD/ -SD/- B.R. BASKARAN JOGINDER SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED - 15/12/2014 F{X~{T? P.S/. . . . . . . ( (( ( &*/ &*/ &*/ &*/ 0/#* 0/#* 0/#* 0/#* / COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &'$% / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. /2 &* , , / DR, ITAT, MUMBAI 6. 23' 4 / GUARD FILE. . . . . / BY ORDER, '/* &* //TRUE COPY// 5 55 5 / 6 6 6 6 7 7 7 7 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI