LAXMICHAND J VORA, MUMBAI V. ITO WD 18(2)(1), MUMBAI

ITA 1874/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7710 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 22-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 07-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Principle of natural justice; Additional evidence

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM , , ITA NO. 18 7 4 / MUM / 20 1 3 ( / ASSESSMENT YEAR: 20 08 - 09 ) SHRI LAXMICHAND J VORA, 1102, INDER TOWER, GOKHALE ROAD(S), DADAR (W), MUMBAI - 400025 / VS. INCOME - TAX - OFFICER - WARD 18(2) (1) PIRAMAL CHAMBER, LALBAUG, MUMBAI - 400012 ( / APPELLANT) ( / RESPONDENT ) PAN: AAAPV5278R / A SSESSEE BY : NONE /RE VENUE BY : MS.ANUPAMA SINGL A / DATE OF HEARING : 22.3. .2017 / DATE OF PRONOUNCEMENT : 29. 3 .2017 / O R D E R PER RAJESH KUMAR, A. M: BY WAY OF THIS APPEAL, THE ASSESSEE IS CHALLENGING THE ORDER OF THE LD. CIT(A) - 29 , MUMBAI, DATED 10.1.2013 FOR THE ASSESSMENT YEAR 20 08 - 09 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: I) ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE PENALTY U/S. 271(1)(C) @ 100% OF THE TAX PAYABLE. 2 ITA NO. 18 7 4 /MUM/201 3 II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT ADMITTING THE EVIDENCE PRODUCE D IN SUPPORT OF THE FACT TH AT THE INVESTMENT IN THE FLAT WAS MADE IN THE YEARS 1994 - 1995, 1995 - 1996 & 199 7 - 1997 & ONLY FINAL INSTALLMENT WAS GIVEN IN MAY 2008 AND, THEREBY ERRED IN HOLD ING THAT THE INVESTMENT OF RS.9,74,775/ - IS UNEXPLAINED INVITING PENAL TY U/S. 271(1) (C ). 2. THE ONLY ISSUE RAISED IN THE GROUNDS OF APPEAL NO.1 AND 2 IS CONFIRMING THE PENALTY UNDER SECTION 271(1)( C) OF THE INCOME TAX ACT, 1961 AT THE RATE OF 100% OF THE TAX SOUGHT TO BE EVADED. THE ASSESSEE ALSO CHALLENGED THE ORDER ON THE GROUND THAT THE ADDITIONAL PROOF FILED BY THE ASSESSEE BEFORE THE LD.CIT(A) WERE NOT ADMITTED AND HENCE THE ORDER PASSED BY THE LD. CIT(A) IS BAD IN LAW. 3. AT THE OUTSET, WE WOULD LIKE TO MENTION HERE THAT NEITHER THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE APPEAR ED BEFORE THIS TRIBUNAL WHEN THE APPEAL WAS CALLED FOR HEARING NOR THERE IS ANY APPLICATION SEEKING ADJOURNMENT OF THE HEARING IS RECEIVED IN THE OFFICE OF THE TRIBUNAL , THEREFORE, WE PROCEED TO DISPOSE OF THE APPEAL OF THE ASSESSEE E X - PARTE ON MERIT AFTER HEARING THE LD.DR. 4. THE ASSESSEE ALSO CHALLENGED THE ORDER OF THE LD.CIT(A) ON THE GROUND THAT THE ADDITIONAL EVIDENCE FILED BEFORE THE FAA WERE NOT ADMITTED AND THE CASE WAS DECIDED WITHOUT CONSIDERING THE ADDITIONAL EVIDENCES. WE ALSO FIND FROM THE ORDER OF FAA THAT THE LD. CIT(A) HAS SPECIFICALLY OBSERVED THAT THE ADDITIONAL EVIDENCE UNDER RULE 46A(I)(B) OF THE INCOME TAX RULES, 1962 3 ITA NO. 18 7 4 /MUM/201 3 COULD ONLY BE ADMITTED IF THE ASSESSEE IS PREVENTED BY SUFFICIENT CAUSE FROM PRESENTING SUCH EVIDENCE. FOR THE SAKE OF BREVITY, WE REPRODUCE THE FINDING OF THE LD.CIT(A): 5. DURING APPELLATE PROCEEDINGS APPELLANT WANTED TO SUBMIT CERTAIN ADDITIONAL EVIDENCES REGARDING INVESTMENT IN THE PROPERTY. IT IS CLAIMED THAT THE AMOUNTS WERE PAID IN CASH ON DIFFERENT DATES IN THE YEAR 1994, 1995, 1996 AND ONLY FINAL INSTALLMENT WAS GIVEN IN MAY,2008. AS FAR AS ADMISSIBILITY OF ADDITIONAL EVIDENCE IS CONCERNED, RULE 46A(I)(B) CLEARLY STATES THAT THE EVIDENCE SHOULD BE ADMITTED WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE ASSESSING OFFICER. IN THIS CASE, AS STATED ABOVE, SUFFICIENT OPPORTUNITY WAS GIVEN TO THE APPELLANT DURING ASSESSMENT PROCEEDINGS. IN VIEW OF THE ABOVE THE EVIDENCE GIVEN BY THE APPELLANT DURING APPELLATE PROCEEDINGS IS NOT ADMITTED 5 . WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE IMPUGNED ORDERS OF AUTHORITIES BELOW. WE FIND THAT IN THIS THE LD. FAA HAS PROCEEDED WITH T O DISPOSE OF THE APPEAL WITHOUT ADMITTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE THE FAA . IN OUR CONSIDERED VIEW , THIS GOES TO VIOLATE THE PRINCIPLE OF NATURAL JUSTICE AS THE ASSESSEE HAS NOT BEEN HEARD ON THE ADDITIONAL EVIDENCE AS THE ADDI TIONAL EVIDENCE S WERE NOT ADMITTED AND CONSIDERED BY THE LD.CIT(A) WHILE DISPOSING OF T HE APPEAL. WE, ARE THEREFORE, INCLINED TO SET ASIDE T HE ORDER OF THE LD.CIT(A) BY RESTORING THE APPEAL BACK TO THE FILE OF THE AO TO LEVY PENALTY AFTER CONSIDERING TH E ADDITIONAL EVIDENCE AS MAY BE FILED BY THE ASSESSEE IN THE SET ASIDE PROCEEDINGS AND DECIDE THE ISSUE AS PER LAW AND FACTS . 4 ITA NO. 18 7 4 /MUM/201 3 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29TH MAR , 2017. SD SD ( /MAHAVIR SINGH ) ( / RAJESH KUMAR) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 29. 3 .2017 SRL,SR.PS / 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 F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI