SHRI HEMANT V MORE, MUMBAI V. INCOME TAX OFFICER WARD 3(2), KALYAN

ITA 2088/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7678 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: HEMANT V MORE
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 2088 / MUM . /2018 ( ASSESSMENT YEAR : 20 10 11 ) SHRI HEMANT V. MORE 1 ST FLOOR, RAVI RAJ APARTMENT KHADAKPADA CIRCLE NEAR WAYALE NAGAR, KALYAN WEST THANE 421 301 PAN AFWPM3020K . APPELLANT V/S INCOME TAX OFFICER WARD 3 (2), MUMBAI . RESPONDENT ASSESSEE BY : SHRI HEMANT V. MORE REVENUE BY : SHRI CHAITANYA ANJARIA DATE OF HEARING 02 . 01 .201 9 DATE OF ORDER 09.01.2019 O R D E R PER SAKTIJIT DEY, J.M. A FORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 27 TH FEBRUARY 2015 , PASSED BY THE LEARNED COMMISSIONER (APPEALS) 1 , MUMBAI, FOR THE ASSESSMENT YEAR 20 10 11 . 2 . BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL AND IS A PRACTICING DENTAL SURGEON. HE CARRIES OUT HIS PROFESSIONAL ACTIVITIES THROUGH A PROPRIETARY CONCERN IN THE NAME AND STYLE OF SHREE DENTAL SPECIALITY CLINIC. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HIS 2 SHRI HEMANT V. MORE RETURN OF INCOME ON 14 TH OCTOBER 2010, DECLARING TOTAL INCOME OF ` 10,94,020. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY AND IN THE COURSE OF ASSESSMENT PROCEE DINGS THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO PROVE THE GENUINENESS OF UNSECURED LOANS OF ` 28,05,000. THOUGH, THE ASSESSEE CLAIMED THE UNSECURED LOAN SHOWN BY HIM TO BE GENUINE A ND TO SUBSTANTIATE SUCH CLAIM HE PRODUCED CERTAIN DOCUMENTARY EVIDE NCES, HOWEVER, THE ASSESSING OFFICER DID NOT FIND THE SUBMISSIONS OF THE ASSESSEE ACCEPTABLE. THUS, HE TREATED THE UNSECURED LOAN OF ` 24,85,000, AS EXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AND ADDED BACK TO THE INCOME OF THE ASSESSEE. FURTHER, TH E ASSESSING OFFICER ADDED BACK AN AMOUNT OF ` 50,000 OUT OF THE EXPENDITURE CLAIMED TOWARDS PETROL, TELEPHONE CHARGES, TRAVELLING, ETC. BEING AGGRIEVED WITH SUCH ADDITION S THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3 . AS IT APPEARS F ROM THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER (APPEALS), SINCE NO ONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE ON THE DATE OF HEARING , HE DISPOSED OFF THE APPEAL EX PARTE BY SUSTAINING THE ADDITIONS MADE BY THE ASSESSING OFFICER. 4 . THE ASSESSEE APPEARING IN PERSON SUBMITTED THAT DUE TO CERTAIN UNAVOIDABLE CIRCUMSTANCES, NEITHER HE NOR HIS COUNSEL COULD APPEAR BEFORE THE LEARNED COMMISSIONER (APPEALS), HENCE, THE APPEAL WAS 3 SHRI HEMANT V. MORE DECIDED EX PARTE BY SUSTAINING THE DISALLOWANCE / ADDITIONS. HE S UBMITTED, G IVEN AN OPPORTUNITY, HE WILL APPEAR AND PRODUCE NECESSARY EVIDENCES BEFORE THE LEARNED COMMISSIONER (APPEALS) TO PROVE THE GENUINENESS OF UNSECURED LOANS. THUS, HE REQUESTED FOR RESTORING THE ISSUES TO THE FIRST APPELLATE AUTHORITY FOR DE NOVO A DJUDICATION. 5 . THE LEARNED DEP ARTMENTAL REPRESENTATIVE HAS NO OBJECTION IN RESTORING THE ISSUES TO THE LEARNED COMMISSIONER (APPEALS) FOR DE NOVO ADJUDICATION. 6 . HAVING CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD, I AM OF THE VIEW THAT THERE IS NO NEED TO DELVE DEEP INTO THE ISSUES RAISED IN THE PRESENT APPEAL , SINCE , THE LI MI TED SUBMISSION OF THE ASSESSEE BEFORE ME IS TO RESTORE THE ISSUES TO THE LEARNED COMMISSIONER (APPEALS) FOR DE NOVO ADJUDICATION. CONSIDERING THE F ACT THAT ASSESSEES APP EAL WAS DECIDED EX PARTE BY THE LEARNED COMMISSIONER (APPEALS) , FOR WHATEVER MAY BE THE REASON, I AM INCLINED TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS) AND RESTORE ALL THE ISSUES RELATING TO THE DISPUTED ADDITIONS BACK TO HIM FOR DE NOVO ADJUDICATION AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I ALSO DIRECT THE ASSESSEE TO RESPOND TO THE HEARING NOTICES TO BE ISSUED BY THE FIRST APPELLATE AUTHORITY AND REPRESENT HIS CASE IN A PROPER AND EFFECTIVE MANNER BY 4 SHRI HEMANT V. MORE PRODUC ING COGENT DOCUMENTARY EVIDENCES. WITH THE AFORESAID OBSERVATIONS, GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 7 . IN THE RESULT, APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09.01.2019 SD/ SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 09.01.2019 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 (SR. PRIVATE SECRETARY) ITAT, MUMBAI