LATE KHIMJIBHAI GEDIA, MUMBAI V. ACIT CEN CIR 13, MUMBAI

ITA 1941/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9505 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 11-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MEENA
• Keywords: Search and seizure; Opportunity of being heard; Additional evidence
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER ITA NOS. 1938 TO 1941/MUM/2013 : A.YS : 2004 - 05 TO 2007 - 08 LATE KHIMJIBHAI G. GEDIA (LEGAL HEIR : SMT. RASILABEN K. GEDIA) FLAT NO. 72, 7 TH FLOOR, SHREEJI KUTIR, RAM GALLI, OFF S.V. ROAD, KANDIVALI (W), MUMBAI 400 067 PAN : AACPG3363N (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 13, MUMBAI (RESPONDENT) APPELLANT BY : SHRI KETAN VAJANI RESPONDENT BY : SHRI R.P. MEENA, CIT - DR DATE OF HEARING : 09/08/2017 DATE OF PRONOUNCEMENT : 15 /09/2017 O R D E R PER G.S. PANNU , AM : THE CAPTIONED FOUR APPEALS ARE PREFERRED BY THE ASSESSEE FOR ASSESSMENT YEARS 2004 - 05 TO 2007 - 08. ALL THE APPEALS ARE DIRECTED AGAINST THE CONSOLIDATED ORDER PASSED BY THE CIT(A) DATED 31.12.2012, WHICH IN TURN HAS ARISEN FROM THE DIFFERENT ASSESSMENT ORDERS MADE BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 153C OF THE ACT , ALL DATED 30.11.2011 PERTAINING TO ASSESSMENT YEARS 2004 - 05 TO 2007 - 08. 2 ITA NOS. 1938 TO 1941/MUM/2013 LATE KHIMJIBHAI G. GEDIA 2. IN EACH OF THE APPEALS, THE GRIEVANCE OF THE ASSESSEE IS AGAINST THE ADDITIONS WHICH HAVE BEEN MADE BY THE ASSESSING OFFICER IN THE ASSESSMENTS FINALISED U/S 143(3) R.W.S. 153C OF THE ACT. NOTABLY, A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT W AS CARRIED OUT IN THE CASE OF GEDIA GROUP ON 25.08.2009 . IN THE ASSESSMENTS MADE CONSEQUENT TO SUCH SEARCH, VARIOUS ADDITIONS HAVE BEEN MADE BY THE ASSESSING OFFICER PRIMARILY ON ACCOUNT OF UNDISCLOSED BANK ACCOUNTS, UNEXPLAINED CASH LOANS AND INTEREST TH EREON, ETC. 3. ON THE APPOINTED DAY OF HEARING, AFTER HEARING THE LEARNED REPRESENTATIVE AT SOME LENGTH ON THE GROUNDS RAISED IN THE APPEAL, IT WAS NOTICED THAT IN PARA 5.1 OF THE ORDER OF THE CIT(A), THE FOLLOWING DISCUSSION IS APPEARING : - 5.1 BEFORE TAKING THE CASE FOR ADJUDICATION ON MERITS, IT IS PERTINENT TO NOTE THAT FORM NO. 35 HAS BEEN SIGNED BY ONE SHRI CHANDRESH GEDIA ON BEHALF OF THE DECEASED APPELLANT. LATER, DURING THE COURSE OF APPELLATE PROCEEDINGS, AN AFFIDAVIT HAS BEEN FILED BY SMT. RA SILA K. GEDIA ALONG WITH A LETTER MAKING AN APPLICATION UNDER RULE 46A OF THE INCOME TAX ACT. FURTHER, AS PER THE LD. ARS LETTER DATED 21/05/12 SUBMITTING THE APPLICATION UNDER RULE 46A, IT IS SEEN THAT HE HAS MENTIONED SMT. RASILA K. GEDIA AS LEGAL HEIR OF THE DECEASED APPELLANT, SHRI KHIMJIBHAI GEDIA. UPON PERUSAL OF ALL THE THREE DOCUMENTS, IT IS APPARENT THAT SHRI CHANDRESH GEDIA WHO HAS SIGNED FORM NO. 35 IS NOT THE LEGAL HEIR AND HENCE THERE IS AN AB - INITIO DEFECT IN FILING OF APPEAL LEADING TO IN LIMINE DISMISSAL OF THE APPEALS FILED. T HE AFORESAID REVEALS THAT THE APPEAL S FILED BY THE ASSESSEE BEFORE THE CIT(A) IN FORM NO.35 W E R E SIGNED BY A PERSON WHO IS NOT THE LEGAL HEIR. IN TERMS OF THE AFORESAID DISCUSSION, IT IS OBVIOUS THAT THE CIT(A) HA S 3 ITA NOS. 1938 TO 1941/MUM/2013 LATE KHIMJIBHAI G. GEDIA VIEWED IT AS A VOID - AB - INITIO DEFECT IN FILING OF THE APPEAL S . IN THIS CONTEXT, IT IS NOTICEABLE THAT ASSESSEE HAD EXPIRED ON 22.01.2007 AND THE ASSESSMENT ORDERS HAVE BEEN MADE IN THE NAME OF THE LEGAL HEIR, SMT. RASILABEN K. GEDIA . ON THE CONTRARY, THE APPEAL MEMO FILED BEFORE THE CIT(A) WAS SIGNED BY ONE SHRI CHANDRESH G EDIA. THE CIT(A) NOTED THAT SHRI CHANDRESH GEDIA IS NOT THE LEGAL HEIR AND, THEREFORE, ACCORDING TO HIM , THE NON - SIGNING OF THE APPEAL S BY A COMPETENT PERSON LEADS TO DISMISSAL OF APPEALS IN LIMINE . 4. THE LEARNED REPRESENTATIVE FOR THE ASSESSEE CANVASSED THAT THOUGH THE CIT(A) HAS MADE THE OBSERVATION OF DISMISSAL OF APPEALS IN LIMINE IN PARA 5.1 OF HIS ORDER, BUT ULTIMATELY THE APPEALS HAVE NOT BEEN DISMISSED IN LIMINE BY THE CIT(A). HE SUPPORTED IT BY POINTING OUT THAT IN THE SUBSEQUENT PARAGRAPHS, THE CIT(A) HAS ADJUDICATED THE ISSUES ON MERIT S ALSO. IT IS POINTED OUT THAT SOME RELIEFS HAVE BEEN ALLOWED BY THE CIT(A) ON THE MERITS OF THE ADDITION S , AND THE ASSESSING OFFICER HAS ALSO PASSED AN ORDER GIVING EFFECT MEANING THEREBY THAT THE DEPARTMENT HAS ALSO UNDERSTOOD THAT THE APPEALS HAVE NOT BEEN DISMISSED IN LIMINE. 5. IN OUR CONSIDERED OPINION, THE POINTS CANVASSED BY THE LEARNED REPRESENTATIVE CANNOT DISTRACT FR OM THE CLEAR FINDING OF THE CIT(A) THAT THE APPEALS ARE DISMISSED IN LIMINE . NO DOUBT, THE CIT(A) HAS ALSO ADJUDICATED THE MERITS OF THE VARIOUS ADDITIONS, BUT THE SAME HAVE BEEN MADE AFTER DISMISSING THE APPEALS IN LIMINE . THE VERY NEXT PARAGRAPH OF HIS ORDER, I.E. PARAGRAPH 5.1.2 READS AS UNDER : - 5.1.2 NEVERTHELESS, AS A LOT OF SUBMISSIONS HAVE BEEN MADE AND THE MATTER HAS BEEN REMANDED TO LD. AO REGARDING ADMISSIBILITY OF 4 ITA NOS. 1938 TO 1941/MUM/2013 LATE KHIMJIBHAI G. GEDIA ADDITIONAL EVIDENCE, IT WOULD BE PRUDENT TO DISCUSS THE MERITS OF THE ADDITIONS MADE AND THE EXPLANATION FURNISHED BY THE APPELLANT THROUGH SMT. RASILA K. GEDIA. 6. THE OPENING SENTENCE OF THIS PARAGRAPH ITSELF REVEALS THAT AFTER DISMISSING THE APPEALS IN LIMINE , THE CIT(A) HAS DISCUSSED THE MERITS NEVERTHELESS . FURTHER , AT THE END OF THE ORDER, THE CIT(A) OBSERVES THAT THE APPEAL S ARE PARTLY ALLOWED. 7. FROM THE AFORESAID DISCUSSION IN THE ORDER OF CIT(A), ONE THING IS CLEAR THAT IF THE APPEALS FILED WERE DEFECTIVE, AS MADE OUT BY THE CIT(A), IT WAS IMPERATIVE FOR HI M TO ADDRESS THE SAME AT THE THRESHOLD. IN FACT, IF ACCORDING TO THE CIT(A), THE APPEALS HAVE NOT BEEN FILED BY A COMPETENT PERSON, IT WAS HIS DUTY TO SPECIFICALLY BRING THIS DEFECT TO THE NOTICE OF THE ASSESSEE AND AFTER CONSIDERING THE EXPLANATION FURNI SHED BY THE ASSESSEE, HE OUGHT TO HAVE DECIDED THE ISSUE AS PER LAW. IT IS ALSO CLEAR THAT THERE IS AN APPARENT INCONSISTENCY ON THE PART OF THE ASSESSEE INASMUCH AS THE LEGAL HEIR AT THE TIME OF ASSESSMENT IS STATED TO BE SMT. RASILABEN K. GEDIA , WHILE T HE MEMO OF APPEAL IN FORM NO. 35 FILED BEFORE THE CIT(A) WAS SIGNED BY ONE SHRI CHANDRESH GEDIA. OSTENSIBLY, FILING OF A COMPETENT APPEAL IS A SINE QUA NON FOR ITS ADJUDICATION BY THE APPELLATE AUTHORITY. 8. IN THIS BACKGROUND OF THE MATTER, IN OUR CON SIDERED OPINION, THERE IS APPARENTLY CONFUSION IN THE MIND OF THE CIT(A); ON ONE HAND , HE CONSIDERS THE DEFECT TO BE VOID - AB - INITIO LEADING TO IN LIMINE DISMISSAL, WHEREAS AT THE SAME TIME HE HAS PROCEEDED TO ADJUDICATE THE VARIOUS ISSUES ON MERIT ALSO. I T IS ALSO CLEAR THAT SUCH DEFECT HAS NOT BEEN 5 ITA NOS. 1938 TO 1941/MUM/2013 LATE KHIMJIBHAI G. GEDIA CONFRONTED TO THE ASSESSEE BY THE CIT(A). IN THE INTEREST OF JUSTICE AND FAIR PLAY, IN OUR CONSIDERED OPINION, THE CAPTIONED APPEALS DESERVE TO BE SET - ASIDE AND RESTORED BACK TO THE FILE OF THE CIT(A), WHO SHA LL REVISIT THE CONTROVERSY IN ITS ENTIRETY IN ACCORDANCE WITH LAW. INITIALLY, THE CIT(A) SHOULD CONFRONT THE ASSESSEE WITH THE DEFECT, IF ANY, IN THE FILING OF THE APPEAL S BEFORE HIM AND ONLY THEREAFTER HE SHALL PROCEED FURTHER, IF SO REQUIRED, AS PER LAW. NEEDLESS TO MENTION, THE CIT(A) SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD BEFORE PASSING AN ORDER AFRESH IN ACCORDANCE WITH LAW. 9. THUS, THE IMPUGNED ORDER OF THE CIT(A) IS SET - ASIDE AND THE APPEALS ARE RESTORED BACK TO HIS F ILE TO BE ADJUDICATED AFRESH IN VIEW OF OUR AFORESAID DIRECTIONS. BEFORE PARTING, WE MAY CLARIFY THAT OUR ACTION OF SETTING ASIDE THE MATTERS BACK TO THE FILE OF THE CIT(A) IS NO REFLECTION ON THE MERITS OF THE VARIOUS ADDITIONS, WHICH SHALL BE RE - EXAMINE D BY THE CIT(A) AFRESH ON THE BASIS OF THE SUBMISSIONS THAT MAY BE PUT FORTH BY THE ASSESSEE BEFORE HIM. 10. IN THE RESULT, THE CAPTIONED FOUR APPEALS BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES, AS ABOVE. ORDER PRONOUNCED IN THE OPE N COURT ON 1 5 T H SEPTEMBER, 2017. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 1 5 T H SEPTEMBER , 201 7 *SSL* 6 ITA NOS. 1938 TO 1941/MUM/2013 LATE KHIMJIBHAI G. GEDIA COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER ASSTT. REGISTRAR /SR. PRIVATE SECRETARY I.T.A.T, MUMBAI