ATHARVA CONSULTANCY, Mumbai V. I.T.O. - 32(1)(2), Mumbai

ITA 1629/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8513 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 13-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI
• Assessee Lawyers: DATTATRAY BHANAGE
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM ITA NO. 1629 /MUM/ 2018 (ASSESSMENT YEAR: 2007 - 08 ) M/S. ATHARVA CONSULTANCY C/O. D. E. BHANAGE & COMPANY 136/46 SAHYOG CHSL, SECTOR 1, CHARKOP, KANDIVALI (W), MUMBAI - 67 VS. ITO - 32(1)(2), 204, C - 11, 2 ND FLOOR, ITO, BKC, BANDRA, MUMBAI - 51 PAN/GIR NO. AAHFA 9794 Q ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI DATTATRAY BHANAGE RESPONDENT BY : SHRI S. K. BEPARI DATE OF HEARING : 18.10.2018 DATE OF PRONOUNCEMENT : 01.01 .201 9 O R D E R PER SHAMIM YAHYA, A. M.: THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 44, MUMBAI (LD.CIT(A) FOR SHORT) DATED 09.01.2017 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y.) 2007 - 08. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED INCOME TAX OFFICER - 32(1 )(2) (HEREIN AFTER REFERRED TO AS 'ASSESSING OFFICER') ERRED IN RE ASSESSING YOUR APPELLANTS IN COME AT RS.47,30,390 / - AS AGAINST THE RETURNED INCOME OF RS.2,25,923 / - 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ADDITION MADE BY THE LD. AO IS WITHOUT ESTABLISHING ANY NEXUS BETWEEN ACTUAL RECEIPT AND PROFIT RATIO ON RECEIPTS BY THE APPELLANT. TOTAL ADDITION MADE ON ACCOUNT OF DIFFERENCE IN FORM 26AS AND LEDGER A/C PROVIDED BY THE VENDORS OF THE APPELLANT. THE RECONCILIATION STATEMENT SUBMITTED BY THE APPELLANT TOTAL IGNORED BY THE LD. AO. 3. ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE AND IN LAW, THE LEARNED ITO E RRED IN MAKING ADDITIONS OF RS. 21,26,977 / - TOWARDS DIFFERENCE IN GROSS RECEIPTS & ADDITION OF RS. 23,77,489 / - DIFFERENCE IN PARTY LEDGER ACCOUNT. THE LEARNED ITO OUGHT TO HAVE ALLOWED THE VARIOUS CONTENTIONS OF APPELLANT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 ITA NO. 1629/MUM/2018 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONORABLE CIT(A) DISMISSED FIRST APPEAL AS EX - PARTE ON NON - ATTENDANCE APPEAL PROCEEDINGS BY THE APPELLANT WHEREAS THE APPELLANT C ONTEXT THAT, NON RECEIPT OF ANY NOTICE ISSUED BY THE HON,BLE CIT(A) - 44 IN YEAR 2016. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE APPELLANT BEGS YOUR HONBLE BENCH FOR OPPORTUNITY OF BEING HEARD IN THE COURSE OF NATURAL JUSTICE. 3. BRIEF FACTS OF THE CASE ARE THAT THE ADDITION WAS MADE BY THE ASSESSING OFFICER (A.O. FOR SHORT) IN THIS CASE ON ACCOUNT OF DIFFERENCE BETWEEN GROSS RECEIPT AS PER ACCOUNT AND THAT REFLECTED IN 26AS. THE ASSESSEE GAVE A RECONCILIATION AT THE TIME OF APPEL LATE PROCEEDINGS BEFORE THE LD. CIT(A). BUT THE LD. CIT(A) REFUSED TO ADMIT THE SAME. HE ALSO DREW ADVERSE INFERENCE ON ACCOUNT OF NON APPEARANCE OF THE ASSESSEE. 4. UPON CAREFUL CONSIDERATION AND HEARING BOTH THE COUNSEL AND PERUS ING THE RECORDS , F IRSTL Y , I NOTE THAT THE ACT DOES NOT POSTULATE THE LD. CIT(A) TO DISMISS THE APPEAL FOR NON PROSECUTION. FURTHERMORE, I NOTE THAT THE LD. CIT(A) HAS REFUSED TO ADMIT THE ADDITIONAL EVIDENCE IN THE SHAPE OF RECONCILIATION SUBMITTED BY THE ASSESSEE. IN M Y CONSIDERED OPINION, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE INTEREST OF JUSTICE WILL BE SERVED IF THE ISSUE IS REMITTED TO THE FILE OF THE A.O. TO CONSIDER THE ISSUE AFRESH IN LIGHT OF THE ADDITIONAL EVIDENCE BEING SUBMITTED BY THE ASSESSEE. B OTH THE PARTIES FAIRLY AGREED TO THIS PROPOSITION. 5. IN THE RESULT, THIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 0 1 . 0 1 . 2 0 1 9 S D / - (SHAMIM YAHYA) ACCOUNTANT MEMBER MUMBAI ; DATED : 0 1 . 0 1 . 2 0 1 9 ROSHANI , SR. PS 3 ITA NO. 1629/MUM/2018 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI