ATUL DUSHYANT LALL, MUMBAI V. ITO 34 (1) (2) , MUMBAI

ITA 2279/MUM/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 3866 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2018-2019
• Appeal Filed On: 05-12-2021
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; TDS; FORM 26AS
• Section: 68; 143(1); 250; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER ITA no.2279/Mum./2021 (Assessment Year : 2018–19) Atul Dushyant Lall C/o Office no.507, 5 th Floor Atlantic Commercial Tower, Patel Chowk R.B. Mehta Marg, Ghatkopar (East) Mumbai 400 077 PAN – ACKPL3464B ................ Appellant v/s Income Tax Officer Ward–34(1)(2), Mumbai ................ Respondent Assessee by : Shri Kirit Sheth Revenue by : Shri Mehul Jain, Sr. AR Date of Hearing – 07.06.2022 Date of Order – 24/06/2022 O R D E R PER SANDEEP SINGH KARHAIL, J.M. The present appeal has been filed by the assessee against the impugned ex-parte order dated 08/09/2021, passed under section 250 of the Income Tax Act, 1961 (“the Act”) by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre [“learned CIT(A)”], for the assessment year 2018–19. 2. The present appeal filed before us is delayed by 29 days. In the present case, the impugned order dated 08/09/2021, was received by the Atul Dushyant Lall ITA No. 2279/Mum./2021 Page | 2 assessee on same day. Thus, as per the provisions of section 253(3) of the Act, the assessee was required to file appeal within 60 days from the date of receipt of order. However, the assessee filed appeal, for the year under consideration, on 06/12/2021. We find that the Hon'ble Supreme Court, vide order dated 10/01/2022, passed in M.A. no.21 of 2022, in M.A. no.665 of 2021, in Suo–Motu Writ Petition (Civil) no.3 of 2020, directed that the period from 15/03/2020 till 28/02/2022, shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial and quasi judicial proceedings. As the due date for filing present appeal was falling within the aforesaid time-period, in view of the order passed by the Hon’ble Supreme Court, there is no delay in filing the present appeal and we proceed to decide the appeal on merits. 3. In this appeal, the assessee has raised following grounds: “1. The learned CIT(A) has erred in not providing to your appellant a reasonable opportunity to make factual and legal representation and further a reasonable opportunity of being heard Your appellant respectfully submits that he should be provided reasonable opportunity to make factual and legal representation and further a reasonable opportunity of being heard. The learned CIT(A) has erred in confirming upward adjustment / addition to the extent of Rs.12,20,035. Your appellant respectfully submits that, on facts and in law, the addition of Rs.12,20,035 is unjustified and should therefore be deleted. The learned CIT (A) has erred in confirming application of tax rate prescribed in section 115BBE to the aforesaid adjustment of Rs.12,20,035. Your appellant respectfully submits that, on facts and in law, in addition to the incorrect upward adjustment / addition, the application of tax rate prescribed in section 115BBE is also incorrect. Atul Dushyant Lall ITA No. 2279/Mum./2021 Page | 3 4. In the intimation u/s. 143(1), credit for TDS is granted only to the extent of Rs. 8,24,144 as against the appellant's claim of TDS credit of Rs.12,44,384. Your appellant respectfully submits that credit of entire TDS of Rs. 12,44,384, as appearing in Form 26AS, should be granted.” 4. The brief facts of the case, as emanating from record are: The assessee is an individual and has filed his return of income for the year under consideration on 27/08/2018, declaring total income at Rs. 37,98,870. Thereafter, the assessee revised the said return of income on 02/05/2019, pursuant to notice issued under section 139(9) of the Act issued on 05/04/2019. In the return of income filed in response to notice issued under 139(9) of the Act, the assessee enhanced his income of Rs. 4,10,040 under the head „income from other sources‟ chargeable under normal rates and Rs. 12,20,035 under the head „income from other sources‟ chargeable under special rate other than section 115BBE of the Act. Thus, the total income was declared at Rs. 54,28,960, including special rate income other than 115BBE of the Act of Rs. 12,20,035. The Assessing Officer, vide intimation dated 04/01/2020, issued under section 143(1) of the Act, while processing the return, accepted the return of income as per aforesaid, but in addition to it, an income under section 115BBE of the Act to the tune of Rs. 12,20,035, was added to the total income of the assessee. 5. The learned CIT(A), vide impugned order dated 08/09/2021, inter– alia, dismissed the appeal filed by the assessee and upheld the tax liability Atul Dushyant Lall ITA No. 2279/Mum./2021 Page | 4 on income of Rs. 12,20,035 under section 115BBE of the Act, observing as under: “3.2 Ground No. 2 relates to applicability of section 115BBE on income to declared in response to notice u/s 139(9) of the Act: On perusal of the ROI filed by the appellant for the period under consideration u/s 139(1) as well as 139(9) along with 26AS statement, it is gathered that in the instant case, the department was in possession of information regarding receipts from EPFO by the appellant during the financial year under consideration, which was not revealed by the appellant in return of income filed u/s 139(1) of the Act. Thus, a defective notice u/s 139(9) of the Act was issued to the appellant for disclosure of the aforesaid credits entries of the appellant. In response to the aforesaid notice, the appellant filed its return of income on 05.04.2019 disclosing the contentious amount of Rs. 12,20,035/- as accumulated balance of recognized provident fund. This clearly shows that if the department was not in a possession of the information of credits entries relating to the appellant, the same might have eluded taxation. Hence, it is a clear case of undeclared credits entries falling within the purview of the provisions of section 68 of the Act. Thus, the CPC, Bengaluru has rightly calculated the tax liability on income of Rs. 12,20,035/ u/s section 115BBE of the Act and thus, this ground of appeal is accordingly dismissed.” Being aggrieved, assessee is in appeal before us. 6. During the course of hearing, learned Authorised Representative (“learned AR”) referred to the application seeking admission of additional evidence under Rule 29 of Income Tax (Appellate Tribunal) Rules, 1963. The learned A.R. submitted that the assessee could not explain his case and furnished the documents, now filed as additional evidence, before Assessing Officer as the return of income filed by the assessee was processed vide intimation issued under 143(1) of the Act. Further, in appeal before the learned CIT(A), only one notice of hearing was issued, which could not be responded by the assessee due to pandemic situation and thus, these documents could not also be furnished before the learned CIT(A). Thus, in view of above, the learned A.R. sought admission of Atul Dushyant Lall ITA No. 2279/Mum./2021 Page | 5 additional evidence and prayed for remanding this matter to the file of Assessing Officer for de novo adjudication. 7. On the other hand, learned Departmental Representative fairly agreed to the request of learned A.R. 8. We have considered the rival submissions and perused the material available on record. It is evident from the record that, in the present case, the documents, now furnished before us by way of additional evidence, could not be filed by the assessee before the lower authorities for the reasons as submitted by the learned A.R. and the impugned addition was made in absence of these details. Further, the learned CIT(A) also dismissed assessee’s appeal vide ex-parte impugned order. In view of the above, we deem it appropriate to remand this issue to the file of Assessing Officer for de novo adjudication after consideration of all details, as submitted by the assessee. Needless to mention that, no order shall be passed without affording opportunity of hearing to the assessee. As a result, grounds No. 1 to 3 raised in assessee’s appeal are allowed for statistical purpose. 9. Further, as regards ground pertaining to short grant of TDS credit, the Assessing Officer is directed to verify the details and grant the same in accordance with law. As a result, ground No. 4 raised in assessee’s appeal is allowed for statistical purpose. Atul Dushyant Lall ITA No. 2279/Mum./2021 Page | 6 10. In the result, appeal by the assessee is allowed for statistical purpose. Order pronounced in the open court on 24/06/2022 Sd/- S. RIFAUR RAHMAN ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 24/06/2022 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 Assistant Registrar ITAT, Mumbai