RIZWAN SIDDIQUE, MUMBAI V. ITO WD 17(3)(4), MUMBAI

ITA 2041/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1679 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-04-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 28-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Unexplained cash credit; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.2041/M/2012 ASSESSMENT YEAR: 2006-07 MR. RIZWAN A. SIDDIQUE, B/305, 3 RD FLOOR, 397, ARCHAR PARK, CHRISTIAN VILLA HALL ROAD, KURLA (WEST), MUMBAI 400 070 PAN: ARQPS1124G VS. ITO WD 17(3)(4), MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : SHRI B.S. BIST, D.R. DATE OF HEARING : 29.09.2016 DATE OF PRONOUNCEMENT : 09.12.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 20.02.2012 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2006-07. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: (1) THE LEARNED ASSESSING OFFICER HAS NOT GIVEN RE ASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. HOWEVER, THE APPELLAN T HAS REQUESTED ADJOURNMENT FOR THE GENUINE REASONS OF ILL HEALTH W HICH WAS ALSO SUBSTANTIATED BY EVIDENCES. INSTEAD, CIT HAS PASSED THE ORDER ON 20.02.2012 WHICH IS 40 DAYS EARLIER TO THE DATE ALL OTTED TO US I.E. 31.03.2012. HENCE, THE APPELLANT REQUESTS YOUR HONO UR TO KINDLY ALLOW THE APPELLANT TO EXPLAIN HIS OBLIGATIONS TOWARDS TH E CASE CONCERNED. (2) THE LEARNED ASSESSING OFFICER HAS ERRED IN ADDI NG BACK RS.11,28,850/- AS UNEXPLAINED CASH CREDITS WHEREAS THE APPELLANT HAS ALREADY DECLARED THAT THESE MONIES ARE THE CASH RECEIVED FR OM THE CLIENTS WHO DO NOT HAVE ANY BANK ACCOUNTS. IN FACT, THE INTENTI ON OF THE APPELLANT WAS TO HELP THOSE PEOPLE FOR TAKING OUT THE PAY ORD ERS. THUS, THE SAID AMOUNT DOES NOT REVEAL ANY INCOME EARNED. (3) THE APPELLANT PRAYS THAT THE PENALTY PROCEEDING S U/S 271(1)(C) MAY BE DROPPED AND DUE JUSTICE MAY BE GIVEN TO THE APPELLA NT. ITA NO.2041/M/2012 MR. RIZWAN A. SIDDIQUE 2 (4) THE APPELLANT PRAYS THAT YOUR HONOUR TO GRANT R ELIEF FROM PAYMENT OF INTEREST UNDER SECTION 234A, B, C, D AS APPLICABLE AND OBLIGE. (5) THE APPELLANT RESERVES ALL THE RIGHTS TO ADD, A LTER, AMEND, DELETE AND/OR MODIFY ANY OF THE AFORESAID GROUND OF APPEALS EITHE R AT THE TIME OF HEARING OR AT ANY TIME BEFORE THE HEARING. 3. NONE HAS COME PRESENT ON BEHALF OF THE ASSESSEE. 4. WE HAVE HEARD THE LD. D.R. AND HAVE ALSO GONE TH ROUGH THE RECORDS. AS IS REVEALED FROM THE GROUND NO.1 TAKEN BY THE ASSES SEE, THE ASSESSEES GRIEVANCE IS THAT NO PROPER OPPORTUNITY OF HEARING HAS BEEN GRANTED TO HIM. IT HAS BEEN PLEADED THAT THE ASSESSEE WAS ASKED TO APP EAR ON 31.03.12 FOR HEARING OF THE MATTER WHEREAS THE LD. CIT(A) PASSED THE ORD ER ON 20.02.12 ITSELF, WHICH IS 40 DAYS PRIOR TO THE DATE OF HEARING ALLOT TED TO THE ASSESSEE. WE HAVE GONE THROUGH THE IMPUGNED ORDER ALSO. THE DATE OF ORDER AS MENTIONED IN THE BEGINNING OF THE IMPUGNED ORDER IS 20.02.12. HOWEV ER, A PERUSAL OF PARA 3.3 OF THE ORDER REVEALS THAT THE LD. CIT(A) HAD HIMSEL F WRITTEN IN THE ORDER THAT HE HAD SERVED THE NOTICE UPON THE ASSESSEE TO APPEAR O N 21.02.12 I.E. ONE DAY AFTER THE DATE OF ORDER. A MERE PERUSAL OF THE ORDER REV EALS THAT THE ORDER HAS BEEN PASSED PRIOR TO THE DATE OF HEARING GIVEN TO THE AS SESSEE. IN OUR VIEW, NO PROPER OPPORTUNITY HAS BEEN GIVEN TO THE ASSESSEE B Y THE LD. CIT(A) TO PRESENT HIS CASE. THE ORDER PASSED BY THE LD. CIT(A) IS NO T SUSTAINABLE IN THE EYES OF LAW, THE SAME IS THEREFORE SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO DECIDE THE SAME AFRE SH AFTER GIVING A PROPER AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE A ND AFTER DULY CONSIDERING THE EVIDENCES/DOCUMENTS RELIED UPON BY THE ASSESSEE. 5. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE AS SESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09.12.2016. SD/- SD/- (ASHWANI TANEJA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 09.12.2016. * KISHORE, SR. P.S. ITA NO.2041/M/2012 MR. RIZWAN A. SIDDIQUE 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.