SHRI. PINAL D SHAH, SURAT V. ITO 25(3)(3), MUMBAI

ITA 1796/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8465 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 27-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMATHA MULLAMUDI
• Keywords: Gift; Principle of natural justice; Reason to believe; Set aside
• Section: 234B; 274; 144

Judgement Text

ITA NO . 1796/MUM/2019 ASSESSMENT YEAR: 2007 - 08 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI SMC - I BENCH, MUMBAI [CORAM: PRAMOD KUMAR (VICE PRESIDENT) ] ITA NO. 1796 /MUM/201 9 ASSESSMENT YEAR: 2007 - 08 SHRI PINAL D SHAH APPELLANT 83, ARPAN APARTMENT, BABUNIVAS STREET, NANPURA TIMLAWAS, SURAT 395001 GUJARAT [PAN: AHEPS6429E ] VS INCOME TAX OFFICER 25(3)(3) RESPONDENT MUMBAI APPEARANCES BY NONE FOR THE APPELLANT SAMATHA MULLAMUDI FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING: : JUNE 09 TH , 2020 DATE OF PRONOUNCEMENT : JULY 09 TH , 2020 ORDER PER PRAMOD KUMAR, VP: 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 18 TH FEBRUARY 2015, PASSED BY THE CIT(A) FOR THE ASSESSMENT YEAR 2007 - 08. 2. GRIEVANCES RAISED BY THE APPELLANT ARE AS FOLLOWS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) ERRED IN CONFIRMING THE INITIATION OF THE REASSESSMENT PROCEEDING UNDER SECTION 147. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) FAILED TO CONSIDER THAT REASSESSMENT PROCEEDING CANNOT BE INITIATED. A) NO REASSESSMENT CAN BE MADE JUST TO MAKE AN ENQUIRY OR VERIFICATION. B) REASSESSMENT PROCEEDING CANNOT BE INITIATE MERELY ON THE INFORMATION RECEIVED FROM INVESTIGATION WING. ITA NO . 1796/MUM/2019 ASSESSMENT YEAR: 2007 - 08 PAGE 2 OF 3 C) R EASSESSMENT PROCEEDING CANNOT BE INITIATED WHEN THE LD. CIT(A) HAVE REASON TO SUSPECT AND NOT REASON TO BELIEVE. 2. ON THE FACTS AND CIRCUMSTANCES OF CASE AND LAW THE LD CIT(A) ERRED IN CONFIRMING THE ASSESSMENT ORDER UNDER SECTION 144 R W S 147 OF INCOME TAX ACT WHICH IS PASSED AGAINST THE PRINCIPAL OF NATURAL JUSTICE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD CIT(A) ERRED IN CONFIRMING THE ADDITION THE RS.90,360/ - ON ACCOUNT OF DEEMED RENT FROM RESIDENTIAL PROPERTY AND ADDED THE SAME AS TO THE TOTAL INCOME OF THE ASSESSEE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN CONFIRMING THE COMPUTED UNEXPLAINED GIFT RECE IVED BY THE ASSESSEE OF RS.82,25 0/ - AND THEREBY ERRED IN CONFIRMING THE ADDITION MADE BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT (A) ERRED IN CONFIRMING THE GENUINE UNSECURED LOAN OF RS.4,50,000/ - RECEIVED FROM SHRI SANJAY GANDHI AND THEREBY ERRED IN CONFIRMING THE ADDITION MADE BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE . 6. THE LD. CIT(A) ERRED IN CONFIRMING THE CHARGING OF INTE REST DISALLOWED UNDER SECTION 234A, 234B 234C AND 234D OF THE INCOME TAX ACT 1961. 7. THE LD. CIT(A) ERRED IN CONFIRMING THE INITIATION OF T HE DISALLOWED PENALTY PROCEEDING UNDER SECTION 274 R.W.S. 271(1) (C) OF T HE INCOME TAX ACT 1961. 3. WHEN THIS APPEAL WAS TAKEN UP FOR THE HEARING, IT WAS NOTICED THAT THE LEARNED CIT(A) HAS SUMMARILY DISMISSED THE MATTER EX PARTE BY OBSERVING AS FOLLOWS: - THE ASSESSEE IS IN APPEAL AGAINST ALL THESE ADDITIONS. HOWEVER DESPITE FIXING THE CASE FOR HEARING ON A NUMBER OF OCCASIONS NO ONE HAS APPEARED NOR ANY EXPLANATION/WRITTEN SUBMISSION FILED TO SUBSTANTIATE THE GROUNDS OF APPEAL. THEREFORE IN THE APPEAL FIL ED IS HEREBY DISMISSED. 4. LEARNED CIT(A) DID NOT DEAL WITH THE FACTS AS SET OUT IN THE STATEMENT OF FACTS FILED BEFORE HIM, OR WITH THE GROUNDS OF APPEAL BEFORE HIM. IT IS ONLY ELEMENTARY THAT IRRESPECTIVE OF WHETHER SOMEONE APPEARS BEFORE HIM TO PLEAD FOR THE APPEAL, AN APPEAL IS TO BE DECIDED ON MERITS IN THE LIGHT OF MATERIAL ON RECORD. OBVIOUSLY, THAT EXERCISE IS NOT CARRIED OUT IN THE IMPUGNED ORDER. ITA NO . 1796/MUM/2019 ASSESSMENT YEAR: 2007 - 08 PAGE 3 OF 3 5. EXPLAINING THE POSITION AS LEARNED DEPARTMENTAL REPRESENTATIVE WAS ASKED WHETHER HE HAS ANY OBJECTION TO THE MATTER BEING SET ASIDE TO THE FILE OF THE CIT(A) FOR ADJUDICATION DE NOVA, AFTER GIVING YET ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE, AND IN THE LIGHT OF, INTER ALIA, MATERIAL ON RECORD. LEARNED DEPARTMENTAL REPRESENTATIVE GRACIOUSLY LEAVES THE MATTER TO THE BENCH. 6. IN VIEW OF THE ABOVE DISCUSSIONS, I DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE FILE OF THE CIT(A) FOR ADJUDICATION WITH DIRECTION AS ABOVE. ORDERED, ACCORDINGLY. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES , IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1962, BY PLACING THE DETAILS ON TH E NOTICE BOAR D. S SD/ - PRAMOD KUMAR (VICE PRESIDENT) MUMBAI, DATED THE 09 TH DAY OF JULY , 2020 NISHANT VERMA SR.PS COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI