PREMSAGAR RAO, MUMBAI V. INCOME TAX OFFICER, MUMBAI

ITA 2358/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5586 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 17-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Set aside
• Section: 143(3); 69

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH MUMB AI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO. 2358/MUM/2018 (ASSESSMENT YEAR 2012-13 ) PREM SAGAR RAO 52,5 TH FLOOR, SHIRAZ, TELLY GALLI, ANDHERI (EAST), MUMBAI- 400069. PAN: ABVPR1851J VS. ITO-24(3)(3) PIRAMAL CHAMBERS, MUMBAI. APPELLANT RESPONDE NT APPELLANT BY : SHRI K. GOPAL (AR) RESPONDENT BY : SHRI ABI RAMA KARTHIKEYAN (SR DR) DATE OF HEARING : 05.09.2019 DATE OF PRONOUNCEMEN T : 05.09.2019 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(A)-36, MUMBAI DATED 30.01.2018 FOR ASSESSMENT YEAR 2012-13 .THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1 . THE LD. CIT(A) ERRED IN UPHOLDING THE ASSESSMENT ORDER DATED 30.03.2015 PASSED UNDER SECTION 143(3) OF THE ACT WITHOUT PROV IDING THE APPELLANT A REASONABLE OPPORTUNITY OF BEING HEARD. THUS, THE OR DER PASSED BY THE LD. CIT(A) IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND THE SAME MAY BE SET ASIDE. 2. THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS.18,17,351/- ON THE BASIS OF AIR INFORMATION BY TREATING THE SAME AS UN ACCOUNTED SALES WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. THUS, THE ADDITION OF RS.18,17,351/- IS UNJUSTIFIED AND THE S AME MAY BE DELETED. 3. THE LD. CIT(A) ERRED CONFIRMING THE ADDITION OF RS.13,00,778/- UNDER SECTION 69 OF THE ACT ON ACCOUNT OF UNEXPLAINED INV ESTMENT WITHOUT ITA NO. 2358 MUM 2018-PREM SAGAR RAO. 2 APPRECIATING FACTS AND CIRCUMSTANCES OF THE CASE. T HUS, THE ADDITION OF RS.13,00,778/- UNDER SECTION 69 OF THE ACT IS UNJUS TIFIED AND THE SAME MAY BE DELETED. 4. THE LD. CIT(A) ERRED IN CONFIRMING THE INTEREST UNDER SECTION 234A. 234B. 234C & 234D OF THE ACT WITHOUT APPRECIATING THE FAC T THAT APPELLANT DENIES HIS LIABILITY TO THE SAME. 2. AT THE OUTSET OF HEARING, THE LD. AUTHORIZED REPRES ENTATIVE (AR) OF THE ASSESSEE SUBMITS THAT THE LD. CIT(A) PASSED THE EX- PARTE ORDER WITHOUT PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT WAS SUBMITTED THAT THE ASSESSEE HAS RAISED SPECIFIC GRO UND OF APPEAL THAT NO FAIR AND PROPER OPPORTUNITY WAS GIVEN TO THE ASSESS EE BY LD CIT(A), VIDE GROUND NO.1 OF THE APPEAL. 3. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE (DR) FOR THE REVENUE SUBMITS THAT THE ASSESSEE WAS GIVEN SUFFICI ENT OPPORTUNITY AS RECORDED BY LD. CIT(A) IN PARA-4 OF HIS ORDER. THE ASSESSEE FAILED TO ATTAINED THE PROCEEDING AND TO SUBSTANTIATE THE GRO UND OF APPEAL, THEREFORE, THE LD. CIT(A) HAS NO OPTION EXCEPT TO D ECIDE THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. IN THE R EJOINDER SUBMISSION, THE LD. AR OF THE ASSESSEE SUBMITS THAT THE FIRST APPEL LATE AUTHORITY (FAA) HAS NOT DECIDED ON VARIOUS GROUNDS OF APPAL ON MERI T, THEREFORE, THE MATTER NEEDS FRESH CONSIDERATION AT THE LEVEL OF FA A. 4. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND GONE THROUGH THE ORDER OF LD. CIT(A). WE HAVE NOTED THAT THE ASS ESSEE HAS FILED THE ITA NO. 2358 MUM 2018-PREM SAGAR RAO. 3 PRESENT APPEAL ON 05.06.2015. THE LD. CIT(A) ALLEGE DLY ISSUED VARIOUS NOTICE AS RECORDED BY HIM IN PARA-4 OF HIS ORDER: DATE OF ISSUE OF NOTICE DATE OF HEARING REMARKS 18.01.2017 14.02.2017 NO ATTENDANCE, ADJOURNMENT LE TTER DATED 10.02.2017 WAS FILED. 27.03.2017 02.05.2017 NO ATTENDANCE, ADJOURNMENT LE TTER DATED 03.05.2017 WAS FILED. 23.05.2017 19.06.2017 NO ATTENDANCE, ADJOURNMENT LE TTER WAS FILED SEEKING FOR ADJOURNMENT TILL JULY 2017. 12.12.2017 28.12.2017 NO ATTENDANCE, ADJOURNMENT LE TTER DATED 22.12.2017 WAS FILED. NEXT DATE OF HEARING WAS FIXED ON 05.01.2018. 22.12.2017 05.01.2018 ON 05.01.2017 THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT APPEARED BUT FILED ONLY CONDONATION OF DELAY. ANY SUBMISSION REGARDING THE CASE WAS NOT MADE. THE CASE WAS ADJOURNED TO 30.01.2018. 05.01.2018 30.01.2018 NO ATTENDANCE, ADJOURNMENT LETTER DATED 29.01.2018 WAS FILED. 5. ON PERUSAL OF THE AFORESAID DATES OF HEARING, WE FI ND THAT THE LD. AR OF THE ASSESSEE APPEARED ON 05.01.2018 AND CASE WAS AD JOURNED FOR 30.01.2018. ON 30.01.2018, THE LD. CIT(A) NOTED THA T NONE APPEARED ON BEHALF OF ASSESSEE, HOWEVER, AN APPLICATION FOR AD JOURNMENT WAS FILED IN ADVANCE ON 29.01.2018. THE LD. CIT(A) HAS NOT RE CORDED THE REASONS/GROUNDS OF SEEKING FOR ADJOURNMENT IN HIS O RDER. THE LD. CIT(A) FURTHER NOT RECORDED, IF THE ASSESSEE HAS SHOWN SUF FICIENT/VALID REASONS FOR SEEKING ADJOURNMENT OR NOT. THE LD. CIT(A) DECI DED THE APPEAL ON 30.01.2018 ITSELF. IN OUR VIEW IN ABSENCE OF SUBJEC TIVE SATISFACTION, IF THE ASSESSEE HAS SHOWN REASONABLE CAUSE OR NOT THE DENI AL OF FURTHER OPPORTUNITY TO THE ASSESSEE WAS NOT JUSTIFIED. WE HAVE FURTHER NOTED THAT ITA NO. 2358 MUM 2018-PREM SAGAR RAO. 4 APPEAL WAS PENDING BEFORE THE LD. CIT(A) SINCE MARC H 2015 AND IT WAS DECIDED ON THE DAY ITSELF I.E. 30.01.2018. CONSIDER ING THE FACT THAT LD. CIT(A) DECIDED THE ISSUE IN ABSENCE OF ASSESSEE, TH EREFORE, WE DEEM IT APPROPRIATE TO RESTORE THE APPEAL TO THE FILE OF LD . CIT(A) TO DECIDE ALL THE ISSUES AFRESH. 6. NEEDLESS TO ORDER THAT BEFORE DECIDING ALL THE ISSU ES, THE LD. CIT(A) SHALL GRANT FAIR AND PROPER OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FULLY CO-OPERATE AND TO FURNISH NECESSA RY EVIDENCE TO THE LD. CIT(A). THE ASSESSEE IS FURTHER DIRECTED TO APPROAC H THE LD. CIT(A) WITHIN TWO MONTH FROM RECEIPT OF THE ORDER FOR FIXI NG THE DATE OF HEARING AND WILL NOT SEEK ADJOURNMENT WITHOUT ANY VALID REA SONS. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COU RT ON 05/09/2019. SD/- SD/- R.C. SHARMA PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 05.09.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI