SUSHILA L GALA, MUMBAI V. DCIT CC 12, MUMBAI

ITA 2008/MUM/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6795 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 29-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 08-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M SWAMY
• Assessee Lawyers: PRANALI DIXIT
• Keywords: Unexplained cash credit; Unexplained expenditure; Search and seizure
• Section: 69C; 142(1); 153A; 68; 132; 144

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NOS.2002 TO 2008/MUM/2015 ASSESSMENT YEARS:2004-05 TO 2010-11 SMT. SUSHILA L. GALA, ROOM NO.1, 1 ST FLOOR, CENTRAL BUILDING 23, CHOWPATTY SEA FACE, GIRGAUN, MUMBAI-400006 / VS. DCIT CENTRAL CIRCLE-12, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 ( '# $ /ASSESSEE) ( % / REVENUE) P.A. NO. AAGPG0135L '# $ / ASSESSEE BY PRANALI DIXIT % / REVENUE BY SHRI M. SWAMY CIT-DR & % ' $ ( / DATE OF HEARING : 22/05/2018 ' $ ( / DATE OF ORDER: 22/05/2018 SMT. SUSHILA L. GALA ITA NOS.2002 TO 2008/MUM/2016 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THIS BUNCH OF SEVEN APPEALS IS BY THE ASSESSEE AGAINST THE IMPUGNED ORDERS ALL DATED 21/01/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI, CONFIRMING T HE ASSESSMENT ORDERS FRAMED U/S 144 R.W.S. 153A OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, MS. PRANALI DIXIT, CONTENDED THAT DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE FILED PART DETAILS AND RE MAINING DETAILS COULD NOT BE FILED DUE TO CERTAIN COMPELLIN G REASONS. THUS, THE LD. ASSESSING OFFICER WAS NOT JU STIFIED IN FRAMING AN EX-PARTE ASSESSMENT U/S 144A OF THE A CT. IT WAS CONTENDED THAT THE ASSESSEE WAS VERY MUCH IN A POSITION TO EXPLAIN THE ALLEGED AN UNEXPLAINED CASH CREDIT AND CONSEQUENT ADDITION MADE U/S 68 AND 69C OF THE ACT. THE LD. COUNSEL TOOK US TO VARIOUS PARAS OF THE ASS ESSMENT ORDER AS WELL AS OF THE IMPUGNED ORDERS. ON THE OTH ER HAND, SHRI M. SWAMY, LD. CIT-DR, STRONGLY DEFENDED THE ASSESSMENT ORDER AS WELL AS THE IMPUGNED ORDER BY SMT. SUSHILA L. GALA ITA NOS.2002 TO 2008/MUM/2016 3 CONTENDING THAT THE ASSESSEE COULD NOT PRODUCE THE NECESSARY DETAILS IN FULL, THEREFORE, THE LD. ASSES SING OFFICER COULD NOT EXAMINE THE FACTUAL DETAILS. IT W AS ALSO PLEADED THAT IN SPITE OF SUFFICIENT OPPORTUNITY, PR OVIDED TO THE ASSESSEE, THE NECESSARY DETAILS COULD NOT BE FI LED, THEREFORE, THE LD. ASSESSING OFFICER HAD NO OPTION BUT TO FRAME THE ASSESSMENT U/S 144 OF THE ACT. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT A SEARCH AND SEIZURE ACTION U/S 132 WAS CARRIED OUT BETWEEN 23/02/2010 AND 20/04/2010 AT TH E OFFICES OF RELIABLE PAPER (INDIA) PVT. LTD. AND ITS GROUP CONCERNS. AS PER THE REVENUE, CERTAIN INCRIMINATING DOCUMENTS RELATING TO THE ASSESSEE WERE FOUND AND T HUS SIMULTANEOUS ACTION U/S 132 OF THE ACT WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE. NOTICE U/S 153A OF TH E ACT WAS ISSUED ON 31/01/2011 TO WHICH THE ASSESSEE FILE D RETURN OF INCOME SHOWING INCOME AT RS.6,48,650/- ON 15/02/2011 (ASSESSMENT YEAR 2004-05), WHEREAS, VARI OUS NOTICES WERE ISSUED TO THE ASSESSEE AND ALSO SHOW C AUSE SMT. SUSHILA L. GALA ITA NOS.2002 TO 2008/MUM/2016 4 NOTICE ALONG WITH QUESTIONNAIRE IN SPITE OF THAT TH E ASSESSEE FILED PART DETAILS. ULTIMATELY, THE LD. AS SESSING OFFICER FRAMED THE ASSESSMENT U/S 144 R.W.S. 153A O F THE ACT. THE FACT REMAINS THAT FULL DETAILS, AS REQUIR ED BY THE ASSESSING OFFICER, WERE NOT FILED BY THE ASSESSEE. BEFORE US, THE ASSESSEE HAS CONTESTED, CONFIRMATION OF DISALLOWANCE AND OTHER ADDITIONS ON ACCOUNT ALLEGED UNEXPLAINED LOAN CREDITS INVOKING THE PROVISIONS OF SECTION 68 AND UNEXPLAINED EXPENDITURE U/S 69C OF THE ACT. WITHOUT GOING INTO MUCH DELIBERATION, WE ARE OF THE VIEW THAT MERELY ON TECHNICAL GROUND, NO RELIEF CAN BE G RANTED TO THE ASSESSEE MORE SPECIFICALLY WHEN NECESSARY FU LL DETAILS AS REQUIRED BY THE ASSESSING OFFICER WERE N OT FILED BY THE ASSESSEE. EVEN THE LD. CIT-DR STRONGLY PLEA DED THAT IF THE RELIEF IS GRANTED MERELY ON TECHNICAL G ROUNDS, IT WILL CAUSE LOSS TO THE REVENUE. IT IS NOTED THAT NO TICE U/S 153A DATED 31/01/2011 WAS SERVED UPON THE ASSESSEE TO WHICH THE ASSESSEE DECLARED INCOME OF RS.6,48,650/- . THEREAFTER, NOTICE U/S 143(2) AND 142(1) ALONG WITH QUESTIONNAIRE WERE SERVED UPON THE ASSESSEE CALLING FOR SMT. SUSHILA L. GALA ITA NOS.2002 TO 2008/MUM/2016 5 VARIOUS DETAILS. THE ASSESSEE FILED PARTIAL SUBMISSION/DETAILS. THEREAFTER VIDE NOTICE DATED 15/10/2012, ISSUED U/S 142(1) OF THE ACT, THE ASSES SEE WAS ASKED TO FILE NECESSARY DETAILS. SIMILAR NOTICE S/SHOW CAUSE NOTICES WERE SERVED UPON THE ASSESSEE THEREAF TER ALSO. WE ARE OF THE VIEW THAT EVEN AS PER MANDATE O F ARTICLE-265 OF CONSTITUTION OF INDIA, ONLY DUE TAXE S HAS TO BE LEVIED/COLLECTED. KEEPING IN VIEW, THE PRINCIPLE OF NATURE JUSTICE, NON-APPEARANCE OF THE ASSESSEE/NON- FILING OF NECESSARY FULL DETAILS DURING ASSESSMENT PROCEED INGS, BY TAKING A LENIENT VIEW, WE DEEM IT APPROPRIATE TO REMAND THESE APPEALS TO THE FILE OF THE LD. ASSESSING OFFI CER. THE ASSESSEE IS DIRECTED TO FURNISH NECESSARY DETAILS T O SUBSTANTIATE HER CLAIM. ASSESSEE BE GIVEN OPPORTUNI TY OF BEING HEARD. THUS, THE APPEALS OF THE ASSESSEE ARE SET- ASIDE TO THE FILE OF THE LD. ASSESSING OFFICER TO E XAMINE THE CLAIM OF THE ASSESSEE AND DECIDE IN ACCORDANCE WITH LAW, RESULTANTLY, THE APPEALS ARE ALLOWED FOR STATISTICA L PURPOSES ONLY. SMT. SUSHILA L. GALA ITA NOS.2002 TO 2008/MUM/2016 6 FINALLY, THE APPEALS OF THE ASSESSEE ARE ALLOWED FO R STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 22/05/2018. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & MUMBAI; * DATED : 22/05/2018 F{X~{T? P.S / +% %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 0./ / THE RESPONDENT. 3. 1 1 & 2$ ( ,- ) / THE CIT, MUMBAI. 4. 1 1 & 2$ / CIT(A)- , MUMBAI 5. 4%5 $ , 1 ,-( , 6 , & / DR, ITAT, MUMBAI 6. 7' 8 / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , & / ITAT, MUMBAI,