MR. PRATAPCHAND P. PUROHIT , MUMBAI V. ITO -19(2) (5) , MUMBAI

ITA 1703/MUM/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5838 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 23-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 148; 143(3); 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “C”, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER ITA No.1703/M/2021 Assessment Year: 2012-13 Mr. Pratapchand P. Purohit, Shop No.1, 25, Khambata Lane, Khetwadi Back Road, Mumbai – 400 004 PAN: AABPP3598B Vs. Income Tax Officer- 19(2)(5), Matru Mandir, Tardeo Road, Mumbai – 400007 (Appellant) (Respondent) Present for: Assessee by : None Revenue by : Shri R.A. Dhyani, Sr. Ā.R. Date of Hearing : 30 . 03 . 2022 Date of Pronouncement : 29 . 04 . 2022 O R D E R Per : Kuldip Singh, Judicial Member: The appellant, Mr. Pradeepchand P. Purohit (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 26.08.2021 passed by Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] qua the assessment year 2012-13 on the grounds inter alia that :- ITA No.1703/M/2021 M/s. Pratapchand P. Purohit 2 “1. The Officer at National Faceless Appeal Centre, Delhi (hereinafter referred to as the CIT(A)) erred in dismissing the appeal of the appellant on the ground that the appellant has opted for Vivad Se Vishwas Scheme. The appellant contends that on the facts and in the circumstances of the case and in law, the CIT(A) ought not to have dismissed the appeal inasmuch as the appellant has not filed any application under the Vivad Se Vishwas Scheme in respect of the appeal under reference. The appellant further, contends that the application dated 28 th December, 2020 under Vivad Se Vishwas Scheme mentioned by the CIT(A) in his impugned order pertains to an appeal filed by the Department pending before the Honourable Bombay High Court pursuant to the assessment order dated 05.11.2015 framed under section 143(3) r.w.s. 147 of the Act; the said application under the Scheme is not filed in respect of the appeal under reference and hence, the action of the CIT(A) in dismissing the appeal is bad in law and needs to be reversed. 2. The CIT(A) erred in not adjudicating the grounds of appeal and additional ground of appeal filed by the appellant. The appellant contends that on the facts and in the circumstances of the case and in law, the CIT(A) ought to have adjudicated the grounds of appeal and additional ground of appeal filed by the appellant. The appellant further, contends that the CIT(A) has completely ignored the paper book and written submissions e-filed on 15 th May, 2021 and 22 nd May, 2021, respectively, in support of the grounds of appeal and additional ground of appeal raised before him; he ought to have considered the said submissions and disposed of the appeal accordingly. 3. The Income-tax Officer - 19(2)(5), Mumbai (hereinafter referred to as the Assessing Officer) erred issuing notice under section 148 of the Act. The appellant contends that on the facts and in the circumstances of the case and in law, the notice issued under section 148 is bad in law and consequently, the assessment order needs to be quashed. 4. The Assessing Officer erred in making an addition of Rs 60,00,000 under section 69A of the Act, being unsecured loan obtained from Marine Gems Private Limited on the ground that that the appellant has failed to prove the genuineness of transactions and therefore, the loan is unexplained. ITA No.1703/M/2021 M/s. Pratapchand P. Purohit 3 The appellant contends that on the facts and in the circumstances of the case and in law, the Assessing Officer ought not to have made the impugned addition inasmuch as he has not correctly appreciated the facts of the case in its entirety and hence, the impugned addition needs to be deleted. The appellant craves leave to add to, alter or amend the aforestated grounds of appeal.” 2. Briefly stated facts necessary for adjudication of the controversy at hand are : return of income filed by the assessee declaring income of Rs.7,35,610/- has been subjected to scrutiny. The Assessing Officer (AO) on the basis of information received from its investigation wing that assessee has availed benefit of taking accommodation entries of unsecured loan amounting to Rs.60,00,000/-, which escaped assessment, recorded the reasons and initiated the proceedings under section 147 & 148 of the Income Tax Act, 1961 (for short ‘the Act’). Declining the contentions raised by the assessee the AO proceeded to make addition of Rs.60,00,000/- under section 69A of the Act and thereby framed the assessment at the total income of Rs.67,35,610/- under section 143(3) read with section 147 of the Act. 3. Assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has dismissed the appeal for statistical purposes. Feeling aggrieved with the impugned order passed by the ITA No.1703/M/2021 M/s. Pratapchand P. Purohit 4 Ld. CIT(A), assessee has come up before the Tribunal by way of filing the present appeal. 4. Despite issuance of the notice to the assessee none appeared on behalf of him, so the Bench decided to decide this appeal on the basis of material available on record with the assistance of the Ld. D.R. for the Revenue. 5. We have heard the Ld. Departmental Representative for the Revenue, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and case law relied upon. 6. It is brought to our notice that the Ld. CIT(A) has dismissed this appeal for statistical purpose by returning the following findings: “2.0 It is noted that the appellant opted for the Vivad Se Vishwas Scheme vide application dated 28 th December-2020. Pursuant thereto, the PCIT, Mumbai-19 has certified the full and final payment of Rs.68,987/- as taxes in terms of Form No.5 dated 14 th June 2021 and Certificate no 227415350260121. In view of the above, the appeal is treated as infructuous as per clause 4(2) of the Direct Tax Vivad Se Vishwas Act, 2020.” 7. However, the assessee has come up with a specific ground that he has never moved application for settlement under VSVS scheme in this case, which is as under: ITA No.1703/M/2021 M/s. Pratapchand P. Purohit 5 “1. The Officer at National Faceless Appeal Centre, Delhi (hereinafter referred to as the CIT(A)) erred in dismissing the appeal of the appellant on the ground that the appellant has opted for Vivad Se Vishwas Scheme. The appellant contends that on the facts and in the circumstances of the case and in law, the CIT(A) ought not to have dismissed the appeal inasmuch as the appellant has not filed any application under the Vivad Se Vishwas Scheme in respect of the appeal under reference. The appellant further, contends that the application dated 28 th December, 2020 under Vivad Se Vishwas Scheme mentioned by the CIT(A) in his impugned order pertains to an appeal filed by the Department pending before the Honourable Bombay High Court pursuant to the assessment order dated 05.11.2015 framed under section 143(3) r.w.s. 147 of the Act; the said application under the Scheme is not filed in respect of the appeal under reference and hence, the action of the CIT(A) in dismissing the appeal is bad in law and needs to be reversed. 2. The CIT(A) erred in not adjudicating the grounds of appeal and additional ground of appeal filed by the appellant. The appellant contends that on the facts and in the circumstances of the case and in law, the CIT(A) ought to have adjudicated the grounds of appeal and additional ground of appeal filed by the appellant. The appellant further, contends that the CIT(A) has completely ignored the paper book and written submissions e-filed on 15 th May, 2021 and 22 nd May, 2021, respectively, in support of the grounds of appeal and additional ground of appeal raised before him; he ought to have considered the said submissions and disposed of the appeal accordingly. 3. The Income-tax Officer - 19(2)(5), Mumbai (hereinafter referred to as the Assessing Officer) erred issuing notice under section 148 of the Act. The appellant contends that on the facts and in the circumstances of the case and in law, the notice issued under section 148 is bad in law and consequently, the assessment order needs to be quashed. 4. The Assessing Officer erred in making an addition of Rs 60,00,000 under section 69A of the Act, being unsecured loan obtained from Marine Gems Private Limited on the ground that that the appellant has failed to prove the genuineness of transactions and therefore, the loan is unexplained. ITA No.1703/M/2021 M/s. Pratapchand P. Purohit 6 The appellant contends that on the facts and in the circumstances of the case and in law, the Assessing Officer ought not to have made the impugned addition inasmuch as he has not correctly appreciated the facts of the case in its entirety and hence, the impugned addition needs to be deleted. The appellant craves leave to add to, alter or amend the aforestated grounds of appeal.” 8. So in view of the matter, we are of the considered view that the Ld. CIT(A) has erred in dismissing the appeal for statistical purposes on the basis of incorrect facts and as such this appeal is required to be remitted back to the Ld. CIT(A) to decide afresh. Accordingly, the appeal filed by the assessee is allowed for statistical purposes directing the Ld. CIT(A) to decide afresh on merit by providing opportunity of being heard to the assessee. Order pronounced in the open court on 29 th April 2022. Sd/- Sd/- (OM PRAKASH KANT) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 29.04.2022. * Kishore, Sr. P.S. Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai.