KUNJIKACHI NAVAS MATHILIKATHA, MUMBAI V. ITO 12(2)(3), MUMBAI

ITA 1742/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70865 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 03-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 13-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Section: 145; 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , . ! , '# ' $ BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY ARO RA, AM ./ I.T.A. NO. 1742/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2008-09 SHRI KUNJIKACHI NAVAS MATHILIKATHA, C/O.JAYESH SHETH & CO, 7-B/43, 11 TH FLOOR, NAVJIVAN SOCIETY, DR. D.B.MARG, MUMBAI 08 % % % % / VS. THE ITO 12(2)(3), AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 ' '# ./ ( ./ PAN/GIR NO. : ADXPM 7137J ( ') / APPELLANT ) .. ( *+') / RESPONDENT ) ') , '/ APPELLANT BY SHRI VIPUL JOSHI *+') 7 , ' /RESPONDENT BY SHRI S.S.RANA % 7 8# / DATE OF HEARING : 03/09/2013 9 & 7 8# / DATE OF PRONOUNCEMENT : 03/09/2013 ': / O R D E R PER I.P.BANSAL,J.M: THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIRE CTED AGAINST THE ORDER PASSED BY LD. CIT(A)-24, MUMBAI DATED 30/01/2012 FO R ASSESSMENT YEAR 2008- 09. GROUNDS OF APPEAL READ AS UNDER: 1) THE LEARNED CIT(A)-24 ERRED IN PASSING APPELLATE ORDER EX-PARTE. 2) THE LEARNED CIT(A)-24 FURTHER ERRED IN CONFIRMIN G THE ADDITIONS MADE BY AO AMOUNTING TO RS.31,68,315/-. 3) THE LEARNED CIT(A)-24 FURTHER ERRED IN FAILING T O APPRECIATE THE REASONS WHICH PREVENTED THE APPELLANT / HIS COUNSEL FROM APPEARIN G ON 27.01.2012 BEING THE DATE FIXED FOR HEARING ESPECIALLY IN VIEW OF THE FACT TH AT WHEN THE LETTER DT.25.01.2012 WAS FILED AT THE TAPAL COUNTER SEEKING ADJOURNMENT OF THE HEARING FIXED ON ./ I.T.A. NO. 1742/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2008-09 2 27.01.2012, IT WAS CONVEYED TO THE OFFICE BOY THAT FRESH DATE WILL BE GIVEN AND FOR THAT FRESH NOTICE WILL BE ISSUED. IN VIEW OF THE ABOVE, THE APPELLANT SUBMITS AND PLE ADS THAT A FRESH HEARING BE GRANTED TO MAKE SUBMISSIONS ON MERIT. THE APPELLANT FURTHER SUBMITS THAT IT WILL FILE ALL THE REQUIRED DETAILS AND EXPLANATION. 2. AN ADDITION OF RS.31,68,315/- WAS MADE IN RESPEC T OF AIR INFORMATION, ACCORDING TO WHICH THERE WERE CASH DEPOSITS IN BAN K ACCOUNT OF THE ASSESSEE WITH HONG KONG AND SHANGHAI BANKING CORPORATION LTD ., MG ROAD, MUMBAI. THE SAID ADDITION WAS CHALLENGED IN APPEAL FILED BE FORE LD. CIT(A). THE ASSESSEE DID NOT COMPLY WITH THE NOTICES ISSUED BY LD. CIT(A ). HOWEVER, ASSESSEE HAS FILED ADJOURNMENT LETTERS ON EACH AND EVERY DATE FIXED BE FORE LD. CIT(A). ON ACCOUNT OF FAILURE OF THE ASSESSEE TO REPRESENT BEFORE LD. CIT(A), LD. CIT(A) HAS UPHELD THE ADDITION. THE GROUNDS ON WHICH ASSESSEE SOUGHT AD JOURNMENTS HAVE BEEN TABULATED IN THE ORDER OF LD. CIT(A), WHICH IS AS U NDER: DATE OF HEARING GROUND ON WHICH ADJOURNMENT SOUGHT REMARKS 06/06/2011 CONSULTANT OUT OF TOWN FOR VACATION 07/07/2011 SUBMISSIONS REQUIRED TO BE PREPARED ARE UNDER PREPARATION. 30/09/2011 CONSULTANT OCCUPIED WITH TAX AUDITS 21/11/2011 CONSULTANT OUT OF MUMBAI 20/12/2011 CONSULTANT SUFFERING FROM FEVER THE ASSE SSEE WAS INTIMATED THAT LAST AND FINAL OPPORTUNITY WAS BEING GRANTED AND THE CASE FIXED FOR HEARING ON 27/1/2012 27/1/2012 DETAILS REQUIRED TO BE SUBMITTED ARE UNDE R PREPARATION. 3. LD. AR FILED BEFORE US AN AFFIDAVIT FROM THE AS SESSEE STATING AS UNDER: AFFIDAVIT 1.. MR. KUNJI KACHI N. MATHELIKATHA, SON OF MR. KAN JIKUCHI MATHILIKATHA, AGED ABOUT 47 YEARS, AND PRESENTLY RESIDING AT 201. PROGRESSIV E CELEBRITY, A WING, SECTOR 15, BELAPUR, NAVI MUMHAI, DO HEREBY STATE ON SOLEMN AFF IRMATION AS FOLLOWS: 1.. I SAY THAT. I AM ASSESSED TO TAX VIDE P.A. NO.: ADXPM 7137 J, BY ITO 12 (2) (3), MUMBAI [THE A.O.L. 2. I SAY THAT MY ASSESSMENT FOR AX. 2008- 2009 WAS COMPLETED BY THE A.O. VIDE HER ORDER U/S.143 (3) OF THE INCOME - TAX ACT, 1961 [T HE ACT] DATED 15.11.2010. I SAY THAT, IN PAST THERE WAS NEVER ANY SCRUTINY IN MY CA SE. THIS SCRUTINY ASSESSMENT WAS ATTENDED BY MY THEN CHARTERED ACCOUNTANT, SHRI ROHIT CHANDAN. THE ASSESSMENT WAS FRAMED U/S. 143 (3) AND NO RECOURSE WAS TAKEN OF SECTION 144 OR SECTION 145 OF THE ACT. HOWEVER, AN ADDITION ON ACC OUNT OF ALLEGED UNEXPLAINED ./ I.T.A. NO. 1742/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2008-09 3 CASH CREDIT WAS MADE TO MY INCOME, FOR WHICH I FILE D AN APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX (APPEAL) - 24, MUMBAI [LD. CIT (A)]. I SAY THAT AS MY THEN CHARTERED ACCOUNTANT DID NOT REPRESENT MY CASE PROPERLY, I HAD TO APPOINT NEW CHARTERED ACCOUNTANT, M/S. JAYESH SHETH & CO., WHO FILED THE APPEAL AND, ACCORDINGLY, THE ADDRESS FOR CORRESPONDENCE WAS GIV EN AS HIS OFFICE ADDRESS. I SAY THAT NEVER IN MY LIFE I HAD FILED ANY APPEAL AND, A S SUCH, WAS NOT AWARE ABOUT THE APPEAL PROCEDURE. I SAY THAT AS THE CASE INVOLVED F ACTUAL ASPECTS AND AS MR. CHANDAN HAD APPEARED BEFORE THE A.O., IT WAS DECIDE D THAT HE WOULD AT LEAST REPRESENT ME IN THAT APPEAL. ACCORDINGLY, THE NOTIC ES RECEIVED BY MY CHARTERED ACCOUNTANTS, M/S. JAYESH SHETH & CO., FROM THE OFFI CE OF THE LD. CIT (A) WERE BEING DIRECTLY FORWARDED TO MR. CHANDAN TO DO THE NEEDFUL . HOWEVER, IT APPEARS THAT DUE TO VARIOUS REASONS MR. CHANDAN COULD NOT MAKE IT PO SSIBLE TO APPEAR BEFORE THE LD. CIT (A) AND, CONSEQUENTLY, AT EACH DATE OF HEARING, I HAD TO FILE LETTER FOR SEEKING ADJOURNMENT MENTIONING THE REASON FOR ADJOURNMENT. I SAY THAT, AT EACH OCCASION, SOMEONE FROM THE OFFICE OF MY CHARTERED ACCOUNTANTS USED TO ATTEND WITH THE LETTER. 3. I SAY THAT, UNDER ABOVE CIRCUMSTANCES, THE APPEA L CAME TO BE DISMISSED BY THE LD. CIT (A), BY THE EX- PARTE ORDER. 4. I SAY THAT, AGAINST THE ABOVE APPEAL, I HAVE FIL ED THE APPEAL, BEING I.T.A. NO. 1742/M/12, BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, MUMBAI. 5. I SAY THAT I HAD NO INTENTION TO ABANDON THE APP EAL REMEDY NOR THE NON- APPEARANCE WAS DUE TO DELIBERATE CARELESSNESS ON MY PART. THE NON- APPEARANCE WAS BEYOND MY CONTROL. AS A LAYMAN NOT HAVING ANY P RIOR EXPERIENCE OF APPEAL, I HAD TO COMPLETELY RELY UPON MY CHARTERED ACCOUNTANT S. I SAY THAT, ALL THAT HAS BEEN STATED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. SOLEMNLY AFFIRMED THIS ON THE 31ST DAY OF AUGUST, 2 013 SD/- DEPONENT 3.1 REFERRING TO THE CONTENTS OF THE AFFIDAVIT IT W AS THE SUBMISSION OF LD. AR THAT NON-APPEARANCE OR NON-FILING THE DETAILS BE FORE LD. CIT(A) WAS BEYOND THE CONTROL OF THE ASSESSEE. IT WAS FURTHER SUBMITTED BY LD. AR THAT ASSESSEE ASSURES THAT IF OPPORTUNITY IS GIVEN, HE WILL EXTEND THE R EQUIRED CO-OPERATION FOR DISPOSAL OF THE APPEAL. 4. ON THE OTHER HAND, IT WAS SUBMITTED BY LD. DR TH AT ASSESSEE HAS FAILED TO APPEAR BEFORE LD. CIT(A), THEREFORE, THE ADDITION H AS RIGHTLY BEEN SUSTAINED BY LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. ACCORDING TO THE SEQUENCE OF EVENTS ST ATED IN THE AFFIDAVIT, WHICH HAS BEEN REPRODUCED ABOVE, WE CONSIDER IT JUST AND PROPER TO GIVE A CHANCE TO ./ I.T.A. NO. 1742/MUM/2012 ( % % % % & & & & / ASSESSMENT YEAR: 2008-09 4 THE ASSESSEE TO REPRESENT HIS CASE BEFORE LD. CIT(A ). KEEPING IN VIEW THE UNDERTAKING GIVEN BY LD. AR, WE DIRECT THE ASSESSEE TO APPEAR BEFORE LD. CIT(A) ON 12/11/2013, WHEN LD. CIT(A) WILL HEAR THE APPEAL AND WILL DISPOSE OF IT AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEA RING AND PLACING ALL EVIDENCES ON RECORD AS PER PROVISIONS OF LAW. WE DIRECT ACCO RDINGLY. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS CONSIDERED AS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 03/09/2013 . ': 7 & #' ; <%= 03/09/2013 7 > SD/- SD/- ( SANJAY ARORA) (I.P.BANSAL) /ACCOUNTANT MEMBER '# /JUDICIAL MEMBER MUMBAI; <% DATED 03/09/2013 ': ': ': ': 7 77 7 *8?@ *8?@ *8?@ *8?@ A'@&8 A'@&8 A'@&8 A'@&8 / COPY OF THE ORDER FORWARDED TO : 1. ') / THE APPELLANT 2. *+') / THE RESPONDENT. 3. B ( ) / THE CIT(A)- 4. B / CIT 5. @C> *8% , , / DR, ITAT, MUMBAI 6. >D E / GUARD FILE. ':% ':% ':% ':% / BY ORDER, +@8 *8 //TRUE COPY// F FF F / G G G G (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . % . .VM , SR. PS