SHRI KALYANJI BHAGAT BY JAYANTILAL K. BHAGAT L/H, MUMBAI V. ASSTT. CIT-22(1), MUMBAI

ITA 2031/MUM/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1025 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 1992-1993
• Appeal Filed On: 22-12-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZIMIK VASHAI
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “H” BENCH, MUMBAI BEFORE SHRI ABY T. VARKEY, JM AND SHRI GAGAN GOYAL, AM आयकर अपील सं/ I.T.A. No.2031/Mum/2020 (निर्धारण वर्ा / Assessment Year:1992-93) & आयकर अपील सं/ I.T.A. No.2032/Mum/2020 (निर्धारण वर्ा / Assessment Year:1992-93) & आयकर अपील सं/ I.T.A. No.2040/Mum/2020 (निर्धारण वर्ा / Assessment Year:1992-93) Shri Kalyanji Bhagat By Jayantilal K. Bhagat L/H C/o Tanjua Bhagat 2 nd Floor, Jayant Arcade, Above Waman Hari Pethe Jewellers, M. G. Road, Rajawadi, Mumbai- 400077. बिधम/ Vs. ACIT-22(1) Piramal Chambers, Parel, Mumbai-400012. स्थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AASPB0885A (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) सुनवाई की तारीख / Date of Hearing: 10/05/2022 घोषणा की तारीख /Date of Pronouncement: 27/05/2022 आदेश / O R D E R PER ABY T. VARKEY, (JM) These are appeals preferred by the assessee against the order of the Ld. CIT(A)-29, Mumbai dated 30.09.2011 (served upon the assessee on 17 th Dec, 2020) for A.Y.1992-93. 2. At the outset, the Ld. AR of the assessee Shri Paras Jain brought to our notice that the issue involved in IT Appeal no. Assessee by: Shri Paras Jain Revenue by: Smt. Jacinta Zimik Vashai (DR) ITA. Nos. 2031 to 2032/Mum/2020 ITA. No.2040/Mum/2020 A.Y.1992-93 Kalyanji Bhagat 2 2040/Mum/2020 are emanating from the quantum assessment passed by the AO for AY. 1992-93 which was pursuant to the search conducted on the assessee’s premises on 03.03.1992 and the AO based on the seizure of the diary/loose sheet, mulcted total addition of Rs.14.34,27,400/- which was confirmed by the Ld. CIT(A) by passing the ex-parte order dt. 30.09.2011. This action has been challenged before us by preferring ITA. No.2040/Mum/2020; and other appeal for AY.1992-93 i.e. (ITA. No.2032/Mum/2020) is against the action of penalty levied u/s 271A of the Income Tax Act, 1961 (hereinafter ‘the Act’); and ITA. No.2031/Mum/2020 is against the penalty levied u/s 271(1)(c) of the Act. According to us the penalty appeals needs to be adjudicated after the decision in the quantum appeal i.e, ITA. No.2040/Mum/2020. 3. Further according to Ld. AR, the issues involved are identical and is covered by this Tribunals order in assessee’s own case for A.Y.1991-92 wherein Tribunal has passed the order dated 2 nd Sep, 2003. According to him, the Ld. CIT(A) have ignored this binding decision on the issues which are identical/covered by the decision of this Tribunal. According to him, the judicial discipline mandates that the Tribunal order should have been taken into consideration while adjudicating similar grounds of appeal raised for this year (A.Y.1992- ITA. Nos. 2031 to 2032/Mum/2020 ITA. No.2040/Mum/2020 A.Y.1992-93 Kalyanji Bhagat 3 93). Therefore, he wants us to proceed and adjudicate the issues raised before us as per the decision of this Tribunal for A.Y. 1991-92. 4. Per contra, the Ld. CIT-DR Smt. Jacinta Zimik Vashai vehemently opposes the submissions of the Ld. AR and submitted that this is a case wherein the impugned order has been passed in Sept, 2011 and the assessee has preferred this appeal before this Tribunal only in 2020, so, therefore, per-se there is delay of nine (9) years. Therefore, this appeal should not be admitted. Moreover, she brought to our notice that the impugned order of the Ld. CIT(A) has been passed ex-parte, therefore, according to her, by the conduct of the assessee it can be interfered that assessee was not interested in pursuing the appeal even before the Ld CIT(A), so it may be dismissed. 5. In his rejoinder to the objection regarding admitting of appeal for hearing, the Ld. AR drew our attention to the Hon’ble High Court’s order dated 15 th Dec, 2021 in the writ petition no. 3312/3332/3299/3365/2358/2360/3270/3174 of 2021 filed by the legal heir of the assessee (Shri Jayanti lal K. Bhagat) wherein the plea of assessee was that he was prepared to settle the tax dispute for some assessment years by availing the Vivaad Se Vishwas Scheme (VSVS) (hereinafter the “(VSVS)”) which proposal was not accepted by the ITA. Nos. 2031 to 2032/Mum/2020 ITA. No.2040/Mum/2020 A.Y.1992-93 Kalyanji Bhagat 4 revenue, on the plea that assessee’s appeals [against the impugned order of Ld. CIT(A) dated 30.09.2011]were not pending before the Tribunal. 6. And the Hon’ble High Court has held in the writ petitions filed by the assessee (supra) as under;- “..............We have considered the affidavit in reply as well in which the submission is based primarily in the lines submitted by Mr. Sharma. In the reply, Revenue is not denying the fact that the task force was created on two occasions and notwithstanding the appoint of task force, petitioners. 18. We have considered the affidavit in reply as well in which the submissions is based primarily in the lines submitted by Mr. Sharma. In the reply, Revenue is not denying the fact that the task force was created on two occasions and notwithstanding the appointment of task force, pettiness’s were not able to get documents on time because of various organizational changes in the departments in the writ petition, no credence could be given to the averment that the Task Force apparently constituted in the course of recovery proceedings appointed by Respondent no. 2 could not provide a copy of the order passed by CIT(A) in September, 2011. Certainly if only the affiant had gone through the files, he would have noted the nothings in the file and he could have filed copy of the noting or the order sheets in the file, if according to him petitioner’s averment in the petition was not correct. Respondents cannot simply skirt their responsibility by ITA. Nos. 2031 to 2032/Mum/2020 ITA. No.2040/Mum/2020 A.Y.1992-93 Kalyanji Bhagat 5 putting onus on petitioner to provide some documents constituting the task force. 19. Therefore, from the facts as narrated above, we find that the time for filing the appeals against the order of CIT(A) had not expired as on the date of filing the declaration. 20. Therefore, in the peculiar facts and circumstances of the case, the rejection of the declaration by petitioner under the DTVSV Act is not correct.....” 7. In the light of the aforesaid decision of the Hon’ble High Court in assessee’s own case wherein also the issue was whether the assessee’s appeal was pending before Tribunal or not albeit for the purpose of participating in VSVS which the Hon’ble High Court allowed the assessee to avail for the scheme holding at para 19 that on the facts, the time for filing the appeals against the order of CIT(A) has not expired. Taking into consideration, the aforesaid decision of the Hon’ble High Court in assessee’s own case, applying the same ratio, we are of the opinion that the assessee’s appeal before this Tribunal for A.Y. 1992-93 needs to be admitted. 8. Having admitted the appeal no. ITA. No.2040/Mum/2020, we find that search took place as 03.03.1992 and therefore, the search assessment year is this A.Y. ie. AY1992-93. So even though, the Ld. AR tried to convince us that the additions/issues are identical to that ITA. Nos. 2031 to 2032/Mum/2020 ITA. No.2040/Mum/2020 A.Y.1992-93 Kalyanji Bhagat 6 of the appeal decided by this Tribunal for the previous AY.i.e. AY 1991-92 (dt. 2 nd Sep, 2003), however, we are not inclined to accept it because searched assessment year needs to be scrutinized properly for un-disclosed income if any un-earthed during search and so it cannot be equated with earlier assessment years per-se. Having noted that the impugned order of Ld. CIT(A) is exparte without hearing the assessee and the Ld. CIT(A) has reiterated the finding of the AO because the assessee failed to appear and failed to rebut the findings of the AO. In such a scenario, since there is violation of natural justice, we restore the issues back to the file of the Ld. CIT(A) for denovo adjudication of the issues. 9. In the aforesaid facts and circumstances, we are inclined to set aside the impugned order passed by Ld. CIT(A) and the remand the issues raised, back to the file of the Ld. CIT(A) with a direction to adjudicate the appeal on merits preferably within the four months of receipt of this order. We are making this direction because it has been brought to our notice that the assessee is hard pressed because of imminent auctions schedules any time due to recovery proceeding against him. So taking into consideration the peculiar facts and circumstances, we direct the Ld. CIT(A) to decide the issue at the earliest within the four months from the date of receipt of the order. The Ld. AR submits that he will submit the order of this Tribunal ITA. Nos. 2031 to 2032/Mum/2020 ITA. No.2040/Mum/2020 A.Y.1992-93 Kalyanji Bhagat 7 within fifteen (15) days of receipt of this order and in that interregnum would file all documents for supporting the case of the assessee before the Ld. CIT(A). 10. The other two appeals are penalty orders (271(1)(C) and 271A of the Act) emanating from the quantum assessment order, therefore, the same is also set aside back to the file of the Ld. CIT(A) to be decided after he decides the quantum appeal. 11. The assessee is directed to be diligent while pursuing the appeal before the Ld. CIT(A). Order pronounced in the open court on this 27/05/2022. Sd/- Sd/- (GAGAN GOYAL) (ABY T. VARKEY) लेखध सदस्य / ACCOUNTANT MEMBER न्यधनिक सदस्य/JUDICIAL MEMBER मुंबई Mumbai; दिनांक Dated : 27/05/2022. Vijay Pal Singh (Sr. P.S.) ITA. Nos. 2031 to 2032/Mum/2020 ITA. No.2040/Mum/2020 A.Y.1992-93 Kalyanji Bhagat 8 आदेश की प्रनिनलनि अग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त(अपील) / The CIT(A)- 4. आयकर आयुक्त / CIT 5. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, मुंबई / DR, ITAT, Mumbai 6. गार्ड फाईल / Guard file. आदेशधिुसधर/ BY ORDER, सत्यादपत प्रदत //True Copy// उि/सहधिक िंजीकधर /(Dy./Asstt. Registrar) आिकर अिीलीि अनर्करण, मुंबई / ITAT, Mumbai