MOHAMMAD IRFAN MOHAMMAD AHSAN SHAIKH, MUMBAI V. ITO 20 (2)(2), MUMBAI

ITA 2321/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0916 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 12-04-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 29-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; Opportunity of being heard; Principle of natural justice
• Section: 142(1); 69; 144

Judgement Text

C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 2321/ MUM/2016 ( / ASSESSMENT YEAR : 2012-13) MOHAMMAD IRFAN MOHAMMAD AHSAN SHAIKH, FLAT NO. 1 & 2, GROUND FLOOR, READY MONEY COMPOUND, ROW HOUSE, CLARE ROAD, BYCULLA, MUMBAI 400 049. / V. INCOME TAX OFFICER 20(2)(2), MUMBAI. ./ PAN : AFXPS8335Q ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI B. SATYANARAYANA RAJU, DR / DATE OF HEARING : 12-04-2017 / DATE OF PRONOUNCEMENT : 19-04-2017 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 2321/MUM/2016, IS DIRECTED AGAINST THE APPELLATE ORDER DATED 29 TH MARCH, 2016 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 32, M UMBAI (HEREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2012- 13, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSMENT ORDER DATED 13 TH JANUARY, 2015 PASSED BY LEARNED ASSESSING OFFICER ( HEREINAFTER CALLED THE AO) U/S 144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED THE ACT). ITA 2321/MUM/2016 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN MEMO OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBAI (HER EINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1) THE CASH DEPOSITS IN THE BANK, OF WHICH ADDITION U/S. 69 FOR AN AMOUNT OF RS.75,16, 179/- IS MADE, IS PARTLY OUT OF C ERTAIN LOANS WHICH ARE SUBSEQUENTLY REPAID AND PARTLY OUT OF SALE OF FAM ILY JEWELLERY. 2) THE APPELLANT IS PHYSICALLY HANDICAPPED AND CANNO T MOVE OUT WITHOUT AN ESCORT. THE ASSESSMENT & APPEAL PROCEEDIN GS OF THE APPELLANT WERE UNATTENDED SINCE THE PERSON WHO WAS ENTR USTED WITH ATTENDING TO THE SAME, DID NOT LIVE UP TO THE TRUST PLACED IN HIM BY THE APPELLANT. 3) THE APPELLANT PRAYS THAT THIS HON'BLE TRIBUNAL MAY KINDLY BE PLEASED TO GRANT THE APPELLANT AN OPPORTUNITY OF ESTABL ISHING HIS CASE ON MERITS, BY REMANDING THE PROCEEDINGS BACK TO THE L D. AO. 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HAS DE RIVED INCOME FROM SALARY AND INCOME FROM OTHER SOURCES. THE CASE WAS SELECT ED FOR SCRUTINY AND ACCORDINGLY NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 8 TH AUGUST, 2013. HOWEVER, THE ASSESSEE DID NOT APPEAR BEFORE THE A.O . DESPITE SEVERAL NOTICES ISSUED BY THE AO U/S 142(1), 144 R.W.S. 142(1) OF T HE ACT AS DETAILED BELOW:- SR NO. NOTICE U/S DATE OF NOTICE DATE OF APPOINTMENT REMARKS 1 143(2) 8-8-2013 03.09.2013 NONE ATTENDED/NO DETAILS SUBMITTED 2 142(1) ALONGWITH QUESTIONNAIRE 04.06.2014 23.06.2014 -DO- 3 142(1) ALONGWITH QUESTIONNAIRE 8/8/2014 21.08.2014 -DO- 4 SHOW CAUSE NOTICE U/S 271(1)(B)/142(1) 25.08.2014 05.09.2014 -DO- 5 142(1) ALONG 12.09.2014 29.09.2014 - DO - ITA 2321/MUM/2016 3 WITH QUESTIONNAIRE 6 SHOW CAUSE FOR ACTION U/S 144/NOTICE U/S 142(1)/PENALTY U/S 271(1)(B) 30.10.2014 11.11.2014 27.11.2014 10.11.2014 18.11.2014 09.12.2014 -DO- 7 LAST AND FINAL OPPORTUNITY SHOW CAUSE FOR ADDITIONS U/S 144 ALONGWITH NOTICE U/S 142(1) 15.12.2014 23.12.2014 19.12.2014 31.12.2014 -DO- THUS, THE A.O. WAS LEFT WITH NO OTHER OPTION BUT TO FRAME BEST-JUDGMENT ASSESSMENT ORDER DATED 13-01-2015 PASSED U/S 144 OF THE ACT BY THE AO , WHEREBY FIRSTLY ADDITIONS TO THE TUNE OF RS. 75,16, 179/- IN AGGREGATE WAS MADE AS UNEXPLAINED MONEY U/S 69 OF THE ACT FOR CA SH DEPOSITED IN TWO SAVING BANK ACCOUNTS OF THE ASSESSEE WITH ICICI BAN K AND ONE BANK ACCOUNT WITH BANK OF INDIA, WHILE SECOND ADDITION WAS MADE TO THE TUNE OF RS. 21,304/- TOWARDS INTEREST ON LOAN ADVANCED BY THE A SSESSEE WHICH WAS REPORTED AS PER AIR INFORMATION RECEIVED BY THE AO AND WHICH WAS NOT DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME F ILED WITH THE REVENUE. THE ADDITIONS HAVE BEEN MADE MAINLY ON ACCOUNT OF HUGE AMOUNT OF CASH DEPOSITED BY THE ASSESSEE IN HIS BANK ACCOUNTS WHIC H WAS NOT REPORTED BY THE ASSESSEE IN THE RETURN OF INCOME FILED WITH THE REVENUE AS DETAILED ABOVE, VIDE EX-PARTE ASSESSMENT ORDER DATED 13-01-2015 PAS SED BY THE AO U/S 144 OF 1961 ACT. 4. AGGRIEVED BY THE ASSESSMENT ORDER DATED 13-01-20 15 PASSED BY THE A.O. U/S 144 OF 1961 ACT, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). ITA 2321/MUM/2016 4 5. BEFORE THE LD. CIT(A) ALSO, THE ASSESSEE DID NOT APPEAR DESPITE SEVERAL OPPORTUNITIES GIVEN BY THE LD. CIT(A) WHEREIN NOTIC ES WERE ISSUED BY LEARNED CIT(A) DATED 27-04-2015, 02-11-2015 AND 22-02-2016 FIXING THE DATES OF HEARING OF THE APPEAL . SINCE THE ASSESSEE DID NOT COMPLY WITH THE AFORESAID NOTICES, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE EX-PARTE AND ALL THE ADDITIONS MADE BY THE A.O. WERE CONFIRMED BY LE ARNED CIT(A) , VIDE APPELLATE ORDERS DATED 29-03-2016. WHILE PASSING AP PELLATE ORDERS DATED 29- 03-2016 , THE LEARNED CIT(A) CONSIDERED THE STATEME NT OF FACT FILED BY THE ASSESSEE WHEREIN IT WAS STATED THAT NO EFFECTIVE HE ARING WAS GIVEN BY THE AO TO THE ASSESSEE ,DESPITE ACCOUNTANT OF THE ASSESSEE AND CA OF THE ASSESSEE SH D. A. KADIA FROM M/S A G KADIA & CO. ENTERING APPEA RANCE BEFORE THE AO AND EXPLAINING THE CASE OF THE ASSESSEE. IT IS CLAIMED THAT THE SAID AUTHORIZED REPRESENTATIVE WERE ASKED BY THE AO TO FILE CERTAIN DETAILS , AND PROCEEDINGS WERE ADJOURNED BY THE AO WITHOUT GIVING ANY SPECIFI C DATE. IT WAS SUBMITTED THAT WITHOUT WAITING FOR THE SAID DETAILS , THE AO PROCEEDED TO PASS AN EX- PARTE ORDER VIDE BEST JUDGMENT ASSESSMENT VIDE ORDE RS DATED 13-01-2015 PASSED U/S 144 OF 1961 ACT WHEREIN IT IS RECORDED T HAT NONE APPEARED ON BEHALF OF THE ASSESSEE. 6. AGGRIEVED BY THE APPELLATE ORDERS DATED 29-03-20 16 PASSED BY LEARNED CIT(A), THE ASSESEEE FILED AN APPEAL BEFORE THE TRI BUNAL. 7. DURING HEARING BEFORE THE TRIBUNAL, NONE APPEARE D ON BEHALF OF THE ASSESSEE WHEN THE APPEAL WAS CALLED FOR HEARING, TH EREFORE, WE PROCEED TO DISPOSE OF THE APPEAL AFTER HEARING LD. D.R. . THE LEARNED DR HAS PLACED RELIANCE ON THE APPELLATE ORDERS OF LEARNED CIT(A) AND CONTENDED THAT THE ASSESSEE HAS NOT ENTERED APPEARANCE BEFORE THE AUTH ORITIES BELOW AS WELL BEFORE TRIBUNAL. ITA 2321/MUM/2016 5 8. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED DR AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT ONE OF THE GROUNDS RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL FILED WITH THE TRIBUNAL IS TH AT THE ASSESSEE IS A PHYSICALLY HANDICAPPED PERSON AND CANNOT MOVE OUT W ITHOUT AN ESCORT, HENCE, THE ASSESSEE COULD NOT ATTEND THE ASSESSMENT PROCEEDINGS BEFORE THE AO AS WELL APPEAL PROCEEDINGS BEFORE LEARNED CIT(A) . IT IS AVERRED IN GROUNDS OF APPEAL THAT THE PERSON WHO WAS ENTRUSTED WITH AT TENDING THE APPEAL PROCEEDINGS DID NOT LIVE UP TO THE TRUST PLACED BY THE ASSESSEE IN HIM AND HENCE HIGH PITCHED ASSESSMENTS WERE FRAMED EX-PARTE AGAINST THE ASSESSEE. IT WAS STATED IN THE STATEMENT OF FACT FILED BEFORE T HE LEARNED CIT(A) THAT NO EFFECTIVE HEARING WAS GIVEN BY THE AO TO THE ASSESS EE ,DESPITE ACCOUNTANT OF THE ASSESSEE AND CA OF THE ASSESSEE SH. D. A .KADIA FROM M/S A G KADIA & CO. ENTERING APPEARANCE BEFORE THE AO AND EXPLAININ G THE CASE OF THE ASSESSEE. IT IS CLAIMED THAT THE SAID AUTHORIZED RE PRESENTATIVES WERE ASKED BY THE AO TO FILE CERTAIN DETAILS AND PROCEEDINGS WERE ADJOURNED BY AO WITHOUT GIVING ANY SPECIFIC DATE. IT WAS SUBMITTED THAT WIT HOUT WAITING FOR THE SAID DETAILS , THE AO PROCEEDED TO PASS AN EX-PARTE ORDE R VIDE BEST JUDGMENT ASSESSMENT ORDERS DATED 13-01-2015 PASSED U/S 144 O F 1961 ACT WHEREIN IT IS RECORDED THAT NONE APPEARED ON BEHALF OF THE ASS ESSEE. ONE MORE GROUND RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL FIL ED BEFORE THE TRIBUNAL WHEREIN THE ASSESSEE REQUESTED THAT THE TRIBUNAL MA Y GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE SO THAT HE CAN EXPLAIN AND ESTABLISH HIS CASE ON MERITS BEFORE THE AO , HENCE IT IS PRAYED BY THE AS SESSEE THAT THE MATTER MAY BE REMANDED BACK TO THE A.O. SO THAT THE ASSESSEE C AN MAKE DUE REPRESENTATION BEFORE THE A.O. AND THE ISSUES MAY B E DECIDED ON MERITS BY THE AO . IN GROUND NO. 1 FILED BEFORE THE TRIBUNAL, THE ASSESSEE HAS ALSO CLAIMED THAT AN AMOUNT OF RS. 75,16,179/- DEPOSITED IN CASH IN BANK ACCOUNTS WITH ICICI BANK AND BANK OF INDIA , WERE P ARTLY OUT OF CERTAIN LOANS RAISED BY THE ASSESSEE WHICH WERE SUBSEQUENTLY REPA ID WHILE PARTLY THE SAME WERE OUT OF SALE OF FAMILY JEWELLERY. THESE CONTEN TIONS OF THE ASSESSEE NEED ITA 2321/MUM/2016 6 VERIFICATION, ENQUIRIES AS WELL EXAMINATION BY THE AO ON MERITS AS THE AO MAY DEEM FIT TO DECIDE THE MATTER ON MERITS IN ACCORDAN CE WITH LAW. THUS, WE ARE SETTING ASIDE THE MATTER TO THE FILE OF THE AO FOR DE-NOVO ADJUDICATION OF ALL ISSUES ARISING IN THE ASSESSMENT ON MERITS BY THE A O. WE WOULD LIKE TO CLARIFY THAT THIS IS AN OPEN REMAND AS THE ORDERS WERE ALL PASSED BY AUTHORITIES BELOW EX-PARTE, WHEREIN IT IS AVERRED BY THE REVENU E THAT NONE APPEARED FOR THE ASSESSEE AND THERE HAS BEEN NO COMPLIANCES ON P ART OF THE ASSESSEE BEFORE THE AO AS WELL LEARNED CIT(A). NEEDLESS TO S AY THAT PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD SHALL BE GIVEN BY THE AO TO THE ASSESSEE IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LAW. THE ASSESSEE SHALL BE ALLOWED BY THE AO TO FURNISH ALL NECESSARY EVIDENCES AND EXPLANATIONS IN HIS DEFENSE WHICH SHALL BE ADMITTED BY THE AO IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IN I TA NO. 2321/MUM/2016 FOR ASSESSMENT YEAR 2012-13 IS ALLOWED FOR STATISTI CAL PURPOSES AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH APRIL, 2017. # $% &' 19-04-2017 ( ) SD/- SD/- (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 19-04-2017 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS ITA 2321/MUM/2016 7 !'#$%&%# / 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 C BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI