BEENA ANTO PUTHIRY, MUMBAI V. ITO 20(1)(2), MUMBAI

ITA 2169/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8242 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2010-2011
• Appeal Filed On: 13-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR RAIDR
• Keywords: Opportunity of being heard; Additional evidence; Corroborative evidences
• Section: 144

Judgement Text

I IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.2169/ MUM/2015 ( / ASSESSMENT YEAR : 2010-11) SMT. BEENA ANTO PUTHIRY, D/O JOSEPH PUTHAN PURACKAL, UNIT NO. 132, ANDHERI INDUSTRIAL ESTATE, VEERA DESAI ROAD, ANDHERI (W), MUMBAI 400 053. / V. ITO 20, (1)(2), PIRAMAL CHAMBERS, LALBAUG, MUMBAI. ./ PAN : AMCPP9528L ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI NEELKANTH KHANDELWAL REVENUE BY : SHRI SAURABHKUMAR RAI,DR / DATE OF HEARING : 03-01-2017 / DATE OF PRONOUNCEMENT : 15-02-2017 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 2169/MUM/2015, IS DIRECTED AGAINST THE APPELLATE ORDER DATED 1ST JANU ARY, 2015 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 36, M UMBAI (HEREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2010- 11, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSMENT ORDER DATED 28 TH MARCH, 2013 PASSED BY THE A.O. U/S 144 OF THE INCO ME-TAX ACT,1961 (HEREINAFTER CALLED THE ACT). ITA 2169/MUM/2015 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBA I (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. THE LEARNED CIT (A) ERRED IN LAW BY SUSTAINING T HE ASSESSMENT ORDER OF THE LEARNED ASSESSING OFFICER WITHOUT APPREC IATING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF T HE RELEVANT STATUTORY ENACTMENTS & LAWS. 2. THE LEARNED CIT (A) COMPLETED THE APPELLATE PROC EEDINGS WITHOUT GIVING REASONABLE OPPORTUNITY TO THE APPELLANT AND HI S AUTHORIZED REPRESENTATIVE OF BEING HEARD AND TO PRESENT BEFORE YO UR HONOR REQUISITE SUPPORTING DOCUMENTS/ BILLS & VOUCHER AT AN Y TIME ON OR BEFORE THE HEARING OF THE APPEAL. 3. THE APPELLANT IS OF THE OPINION THAT THE LEARNED CIT (A) ERRED IN DISALLOWING THE UNDER MENTIONED EXPENSES & CONSIDERI NG IT AS INCOME BY ADDING THE SAME TO THE TOTAL INCOME OF THE APPELLANT WI THOUT AFFORDABLE REASONABLE OPPORTUNITY OF BEING HEARD AS PER THE ORDER OF LEARNED ASSESSING OFFICER: A. COMPUTING THE TOTAL INCOME OF THE APPELLANT OF RS.69, 40,231/- AS AGAINST THE RETURNED INCOME OF RS. 15,01,040/- BY PASSING EX-PARTE ASSESSMENT ORDER U/S 144 OF THE ACT,1961. B. TREATING THE DIFFERENCE OF RS. 25,91,528/- AS UNDI SCLOSED RECEIPT WHICH IS THE DIFFERENCE BETWEEN THE RECEIPT DISCLOSED IN THE PROFIT AND LOSS ACCOUNT OF THE APPELLANT & TOTAL RECEIPT AS DEPICTED BY FORM NO 26AS & THE SAID DIFFERENCE OF RS. 25,91,528/- IS ADD ED TO THE TOTAL INCOME OF APPELLANT WITHOUT APPRECIATING THE FACTS OF THE CASE. C. MAKING AN ADDITION OF RS. 41,252/- AS THE TOTAL IN COME OF THE APPELLANT BEING THE DIFFERENCE IN THE COMPARISON OF THE LEDGER ACCOUNT ON COMPARISON OF THE LEDGER ACCOUNT OF THE BOTH THE R ESPECTIVE PARTY. D. TREATING THE PURCHASE OF RS.10, 20, 275/- FROM M/ S SURYA TV AS NON-GENUINE & ADDED THE SAME TO THE TOTAL INCOME OF APPE LLANT. E. MAKING PROPORTIONATE DISALLOWANCE OF INTEREST PAI D OF RS.14,400/- AGAINST INTEREST FREE LOANS & ADVANCES G IVEN TO THE SISTER CONCERNE FOR THE PURPOSE OF THE BUSINESS BY THE APP ELLANT. ITA 2169/MUM/2015 3 F. MAKING NOTIONAL ADDITION OF RS. 2,66,000/- TO THE TOTAL INCOME OF THE APPELLANT BY INCREASING THE GROSS PROFIT RATIO RA TE BY 1% ON THE BASIS OF WHIMS & FENCES & WITHOUT APPRECIATING THE FA CTS OF THE CASE. 4. THE APPELLANT PRAYS BEFORE YOUR HONOR TO GIVE NECE SSARY DIRECTION/ INSTRUCTION FOR THE REVISION/ REASSESSME NT OF THE ASSESSMENT ORDER IN VIEW OF THE REQUISITE/ ADDITIONAL EVIDENCES TO BE MADE BY THE APPELLANT WHO COULD NOT BE PRESENTED BY WAY OF EVIDEN CE AT THE TIME OF ASSESSMENT/ APPELLATE PROCEEDINGS DUE TO THE ILL HEALTH OF THE AUTHORIZED REPRESENTATIVE. 5. THE APPELLANT PRAYS BEFORE YOUR HONOR THAT ALL UNW ARRANTED & UNJUSTIFIED ADDITIONS, DISALLOWANCES SHOULD BE DELETE D & SET ASIDE ON THE BASIS OF MERIT & FACTS OF THE CASE. 6. THE APPELLANT PRAYS, BEFORE YOUR HONOR TO GRANT THE 'RELIEF CLAIMED' IN GROUNDS OF APPEAL. 3. THIS APPEAL , FILED BY THE ASSESSEE, IS ARISING OUT OF THE ORDER OF THE A.O. DATED 28 TH MARCH, 2013 PASSED EX-PARTE U/S 144 OF THE ACT AND ON FURTHER APPEAL, THE LD. CIT(A) HAS ALSO PASSED EX-PARTE APP ELLATE ORDER DATED 1ST JANUARY, 2015. THUS, IN NUTSHELL BOTH THE ASSESSMEN T ORDER AS WELL AS APPELLATE ORDER ARE PASSED EX-PARTE IN THE ABSENCE OF THE ASSESSEE. THE AO HAS MADE SEVERAL ADDITIONS IN THE ASSESSMENT ORDER DATED 28-03-2013 PASSED U/S 144 OF THE ACT WHICH ADDITIONS WERE CONFIRMED B Y LEARNED CIT(A) IN FIRST APPEAL VIDE APPELLATE ORDER DATED 01-01-2015 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DUE TO ILLNESS OF THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE, HE COULD NOT ATTEND ANY OF THE PROCEEDINGS BEFORE THE A.O. AS WELL AS THE LD. CIT( A) AND AN EX-PARTE ORDER(S) WERE PASSED BY THE AUTHORITIES BELOW AGAINST THE AS SESSEE. THE LD. COUNSEL SUBMITTED THAT IF AN OPPORTUNITY BE GIVEN AND THE M ATTER IS SET ASIDE AND RESTORED TO THE FILE OF THE LD. CIT(A), THEN THE AS SESSEE WILL ENTER APPEARANCE AND SHALL PRODUCE NECESSARY EVIDENCES AND EXPLANATI ONS TO SUBSTANTIATE HER CASE. IT WAS SUBMITTED THAT DUE TO GENUINE AND BONA FIDE REASONS BEYOND THE CONTROL OF THE ASSESSEE, THE ASSESSEE COULD NOT PRO DUCE THE SUPPORTING EVIDENCE BEFORE THE AUTHORITIES BELOW. ITA 2169/MUM/2015 4 5. THE LD. D.R., ON THE OTHER HAND, RELIED UPON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT DESPITE BEING GIVEN SEVERAL OPPO RTUNITIES , THE ASSESSEE DID NOT AVAIL THE SAID OPPORTUNITIES BEFORE THE AUT HORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE ORDERS OF AUTHORITIES BELOW. ON PERUSAL OF THE RECORDS, IT IS OBSERVED THAT SUFFICIENT OPPORTUNITY HAS BEEN GIVEN BY THE REVENUE TO THE AS SESSEE WHICH IS EVIDENT FROM THE ASSESSMENT ORDER DATED 28-03-2013 PASSED U /S 144 OF THE ACT. SIMILARLY, DURING APPELLATE PROCEEDINGS ALSO, DESPI TE SUFFICIENT OPPORTUNITY PROVIDED TO THE ASSESSEE, THE ASSESSEE DID NOT ATTE ND THE PROCEEDINGS. THE ASSESSEE SUBMITTED THAT DUE TO ILLNESS OF THE LD. C OUNSEL FOR THE ASSESSEE, THE SAID LEARNED COUNSEL COULD NOT ATTEND THE PROCEEDIN GS BEFORE THE AUTHORITIES BELOW AND FILE NECESSARY EVIDENCES. WE HAVE OBSERV ED THAT BOTH THE ORDERS OF AUTHORITIES BELOW WERE PASSED EX-PARTE DESPITE OPPO RTUNITY BEING GIVEN TO THE ASSESSEE. IN OUR CONSIDERED VIEW, IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY IS REQUIRED TO BE PROVIDED TO THE ASSES SEE AND THE ISSUES ARE SET ASIDE AND RESTORED TO THE FILE OF LD. CIT(A) TO ADJ UDICATE THE APPEAL OF THE ASSESSEE DE NOVO AFTER CONSIDERING CONTENTIONS OF T HE ASSESSEE AND EVIDENCES PRODUCED BY HER BEFORE LEARNED CIT(A) IN ACCORDANCE WITH LAW. HOWEVER, WE WOULD LIKE TO MAKE IT CLEAR THAT WE HAVE TAKEN A SE RIOUS VIEW OF NON- APPEARANCES OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW AND IN CASE IF THE ASSESSEE FAILED TO APPEAR BEFORE THE LD. CIT(A) IN DE-NOVO PROCEEDINGS AND FAILED TO PRODUCE THE COGENT AND RELEVANT MATERIAL AND EVIDENCES TO SUBSTANTIATE HER CASE, THE LD. CIT(A) SHALL BE AT LIBERTY TO DECIDE THE APPEAL IN ACCORDANCE WITH LAW . THE LEANED CIT(A) SHALL ADMIT ALL RELEVANT EVIDENCES AND EXPLANATIONS FILED BY THE ASSESSEE IN HER DEFENSE, WHICH SHALL BE ADMITTED BY LEARNED CIT(A) IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE LEARNED CIT(A) SHALL PROVIDE REASONABLE AND ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ITA 2169/MUM/2015 5 ASSESSEE IN ACCORDANCE WITH PRINCIPLES OF NATURAL J USTICE IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IN I TA NO. 2169/MUM/2015 FOR ASSESSMENT YEAR 2010-11 IS ALLOWED FOR STATISTI CAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH FEBRUARY, 2017. # $% &' 15-02-2017 ( ) SD/- SD/- (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 15-02-2017 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI I BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI