UMESH A. MISHRA, MUMBAI V. INCOME TAX OFFICER - 10(3)(3), MUMBAI

ITA 2002/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1213 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 02-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHINTAMNI DINGANKAR
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 271(1)(c); 143(3); 13; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL , ACCOUNTANT MEMBER ITA NO. 2002 /MUM. /201 8 ( ASSESSMENT YEAR : 20 09 10 ) SHRI UMESH A. MISHRA 511, BUILDING NO.3 DHEERAJ VALLY COMPOUND NEAR SAI BABA COMPLEX GOREGAON (E), MUMBAI 400 063 PAN AAGPM0190F . APPELLANT V/S INCOME TAX OFFICER WARD 10 (3)( 3 ), MUMBAI . RESPONDENT ASSESSEE BY : NONE REVENUE BY : S HRI CHINTAMNI DINGANKAR DATE OF HEARING 24 .11.2020 DATE OF ORDER 04.12.2020 O R D E R PER SAKTIJIT DEY. J.M. T HE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 28 TH DECEMBER 2017, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 17, MUMBAI, CONFIRMING PENALTY OF ` 7,05,430, IMPOSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 2009 10. 2 SHRI UMESH A. MISHRA 2. WHEN THE APPEAL WAS CALLED FOR HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSE E TO REPRESENT THE CASE. THERE IS NO APPLICATION SEEKING ADJOURNMENT EITHER. CONSIDERING THE NATURE OF DISPUTE, WE PROCEED TO DISPOSE OFF THE APPEALS EX PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERI AL AVAILABLE ON RECORD. 3. BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 13 TH NOVEMBER 2009, DECLARING TOTAL INCOME OF ` 8,62,822. WHILE COMPLETING THE ASSESSMENT UNDER SECTI ON 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ), THE ASSESSING OFFICER TREATED THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AND FURTHER , DISALLOWED EXP ENSES CLAIMED BY THE ASSESSEE. SUCH A DDITIONS/ DISALLOWANCES BY THE ASSESSING OFFICER THOUGH WAS CONTESTED BY THE ASSESSEE, HOWEVER, AS IT APPEARS FROM THE FACTS ON RECORD , THE TRIBUNAL VIDE ORDER DATED 26 TH JULY 2017, PASSED IN ITA NO.870/MUM./2014, SUSTAINED THE ADDITION. ON THE BASIS OF THE AFORESAID ADDITION S , THE ASSESSING OFFICER INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT ALLEGING FURNISHING OF INACCURATE PARTICULARS OF INCOME AND ULTIMATELY HE PASSED AN ORDER IMPOSING PENALTY OF ` 7,05,430. THE ASS ESSEE CHALLENGED IMPOSITION OF PENALTY BEFORE THE FIRST APPELLATE AUTHORITY. 3 SHRI UMESH A. MISHRA 4. L EAR NED COMMISSIONER (APPEALS) BY THE IMPUGNED ORDER CONFIRMED THE PENALTY IMPOSED BY THE ASSESSING OFFICER. 5. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. THE ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) IS NOT CLEAR ON CERTAIN FACTS . T HOUGH , IN THE CAUSE TITLE LEARNED COMMISSIONER (APPEALS) HAS MENTIONED THAT NO ONE APPEARED ON BEHALF OF THE ASSESSEE, HOWEVER, IN PARA 1 OF HIS ORDER, HE HAS STATED THAT LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED A ND FILED SUBMISSIONS. F ROM PARA 3.1 OF THE APPEAL ORDER, IT APPEARS THAT LEARNED COMMISSIONER (APPEALS) HAS PROCEEDED TO DECIDE THE ISSUE BY REFERRING TO THE STATEMENT OF FAC TS. NOWHERE IN THE APPEAL ORDER LEARNED COMMISSIONER (APPEALS) HAS REFERRED TO THE SUBMISSIONS MADE BY THE ASSESSEE IN THE COURSE OF APPEAL PROCEEDINGS. THUS, PRIMA FACIE , IT APPEARS THAT LEARNED COMMISSIONER (APPEALS) NEITHER HAS GIVEN REASONABLE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE NOR HAS CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE. FURTHER, THOUGH , FROM THE PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE ACT, IT IS VERY MUCH CLEAR THAT THE ASSESSING OFFICER HAS IMPOSED PENALTY ON THE C HARGE THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME, HOWEVER, LEARNED COMMISSIONER (APPEALS) HAS GIVEN A FINDING THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF 4 SHRI UMESH A. MISHRA INCOME. THEREFORE, IT IS VERY MUCH CLEAR THAT THE LIMB UNDER WHICH THE AS SESSING OFFICER IMPOSED PENALTY UNDER SECTION 271(1)(C) OF THE ACT DEFERS FROM THE LIMB UNDER WHICH LEARNED COMMISSIONER (APPEALS) HAS SUSTAINED IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IT IS NOT KNOWN WHETHER THE ASSESSEE WAS GIVEN AN OPP ORTUNITY TO EXPLAIN WHETHER THE CHARGE OF CONCEALMENT OF INCOME IS JUSTIFIED OR NOT. IN VIEW OF THE AFORESAID, WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK TO HIM FOR DE NOVO ADJUDICATION AFTE R PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04.12.2020 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 04.12.2020 5 SHRI UMESH A. MISHRA COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI