DCIT CIR 2, KALYAN V. ASHOPK H RAJWANI, ULHASNAGAR

ITA 1997/MUM/2010

• Counselvise Citation: 199719914 RSA 2010
• Duration Of Justice: 5 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-06-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 12-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Section: 133A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.1997/MUM/2010 / ASSESSMENT YEAR 2006-07 THE ACIT, CIR.2, KALYAN. / VS. SHRI ASHOK H RAJWANI, PROP.H.J..ENTERPRISES, ULHASNAGAR 3. ./ ./ PAN/GIR NO. : AEPPR 3288Q ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY SHRI ASGHAR ZAIN RESPONDENT BY NONE ! ' / DATE OF HEARING : 03/06/2015 ! ' / DATE OF PRONOUNCEMENT : 03/06/2015 / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-II, THANE DATED 5/12/2009 FOR ASSESSMENT YEAR 2006- 07. GROUNDS OF APPEAL READ AS UNDER: 1 ) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (A)- II, THANE, ERRED IN CANCELLING THE PENALTY LEV IED U/S. 271(1)(C) OF THE I.T. ACT WITHOUT CONSIDERING THE FACT THAT HAD THE SURVEY NOT CONDUC TED, THE ASSESSEE WOULD NOT HAVE DISCLOSED THE ADDITIONAL INCOME ON ACCOUNT OF UNSEC URED LOANS RECEIVED FROM SEVERAL PERSONS INCLUDING HIS EMPLOYEES. 2) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (A)- II, THANE, ERRED IN WITHOUT GOING INTO THE MER ITS OF THE CASE THAT THE ASSESSEE HAD NEITHER PROVED THE CREDITWORTHINESS OF THE LOAN CRE DITORS NOR GENUINENESS OF THE TRANSACTION DURING THE COURSE OF SURVEY ACTION U/S. 133A OF THE I.T. ACT AS WELL AS DURING THE SCRUTINY PROCEEDINGS. . / ITA NO.1997/MUM/2010 / ASSESSMENT YEAR 2006-07 2 2. THIS APPEAL WAS EARLIER FIXED ON VARIOUS DATES, HOWEVER, ON NONE OF DATES THE ASSESSE HAS ATTENDED THE HEARING. ON VARIOUS D ATES LD. DR WAS DIRECTED TO SERVE NOTICE ON THE ASSESSEE. REFERENCE IN THIS R EGARD CAN BE MADE TO THE FOLLOWING DATES: 06/01/2011, 21/03/2012, 20/08/2013 AND 26/2/2015. 2.1 LASTLY, THE PRESENT APPEAL WAS FIXED ON 03/06/ 2015 AND NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWEVER, LD. DR SUBMITTED A LETTER RECEIVED BY HIM FROM AO, WHICH IS DATED 1/6/2015. THE AO HA D DEPUTED THE INSPECTOR FOR SERVICE OF NOTICE ON THE ASSESSEE AND INSPECT OR HAS REPORTED THAT HE HAS VISITED THE RESIDENTIAL ADDRESS OF THE ASSESSEE A ND IT WAS FOUND THAT HIS RESIDENCE WAS CLOSED. HE FURTHER FOUND THAT ASSESS EE HAD LEFT THE PREMISES 5 TO 6 YEARS AGO AND ON FURTHER ENQUIRY IN THE VICINI TY, IT WAS FOUND THAT THE BUNGALOW WAS SOLD THROUGH AUCTION BY BANK. IT WAS FURTHER MENTIONED BY THE INSPECTOR THAT THE PRESENT WHEREABOUTS OF THE ASSE SSEE IS NOT TRACEABLE. 3. AFTER PLACING AFOREMENTIONED LETTER ON RECORD LD . DR SUBMITTED THAT DEPARTMENT MAY BE GIVEN FURTHER OPPORTUNITY TO SE RVE NOTICE ON ASSESSEE. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LD. DR. IN VIEW OF THE FACTS NARRATED BY THE INSPECTOR, WHICH HAVE BEEN NO TED ABOVE, WE ARE OF THE OPINION THAT GIVING ONE MORE OPPORTUNITY TO LD. DR TO SERVE NOTICE ON THE ASSESSEE WOULD ALSO NOT SERVE ANY USEFUL PURPOSE. THEREFORE, WE DECLINE TO ACCEPT SUCH SUBMISSION OF LD. DR. HOWEVER, KEEPING IN VIEW THE REQUEST OF LD. DR, WE ARE OF THE OPINION THAT THE APPEAL FILED BY THE REVENUE CANNOT BE ADJUDICATED WITHOUT GIVING THE ASSESSEE A REASONABL E OPPORTUNITY OF HEARING. SINCE NOTICE CANNOT BE SERVED UPON THE ASSESSEE, W E DISMISS THE PRESENT APPEAL FILED BY THE REVENUE AND PROVIDE LIBERTY TO THE REVENUE TO SEEK RECALL OF . / ITA NO.1997/MUM/2010 / ASSESSMENT YEAR 2006-07 3 THIS ORDER IN CASE REVENUE IS ABLE TO TRACE THE ASS ESSEE AND IS ABLE TO SERVE NOTICE UPON HIM. WITH THESE OBSERVATIONS WE DISMIS S REVENUES APPEAL. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/06/2015 () * + 03/06/2015 SD/- SD/- ( , / RAJENDRA) ( . . / I.P. BANSAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ( MUMBAI; * DATED 03/06/2015 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. .! ( ) / THE CIT(A)- 4. .! / CIT 5. /0 !12 , ' 12 , ( / DR, ITAT, MUMBAI 6. 3 / GUARD FILE. / BY ORDER, /! ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI . . ./ VM , SR. PS