MR ANKIT JITENDRA JHAVERI, Mumbai V. ITO-19(1)(1), Mumbai

ITA 2362/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0418 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR
• Keywords: Gift
• Section: 250; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 2362/MUM/2019 ( ASSESSMENT YEARS: 2009-10 ) MR. ANKIT JITENDRA JHAVERI 2202, CRESCENT HEIGHTS, VN NAIK MARG, MUMBAI 400036. / VS. ITO 19(1)(1) AAYAKAR BHAVAN, M.K ROAD, MUMBAI - 400020 ./ ./ PAN/GIR NO. : AACPJ5461A ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SNEHAL SHAH, AR / RESPONDENT BY : SHRI BRAJENDRA KUMAR, DR / DATE OF HEARING 15/12/2020 !'# / DATE OF PRONOUNCEMENT 17/12/2020 / O R D E R PER PAVAN KUMAR GADALE - JM: THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) -4, MUMBAI PASSED U/S. 144 R.W.S 147 AND 250 OF THE INCOME TAX ACT, 1961. 2. BRIEF FACTS OF THE CASE ARE THAT, THE ASSESSEE I S ENGAGED IN THE BUSINESS OF DEALING IN GIFT ARTICLES , NOVELTIES ETC AND FILED THE RETURN OF INCOME WITH T OTAL ITA NO . 2362 /MUM/2019 ANKIT JITENDRA JHAVERI, MUMBAI. - 2 - INCOME OF RS NIL ON 10.08.2009. THE ASSESSING OFFIC ER COMPLETED THE ASSESSMENT APPLYING THE PROVISIONS OF SEC144 OF THE ACT, BEING BEST JUDGMENT ASSESSMENT WITH ADDITION ON ACCOUNT OF NON GENUINE PURCHASES ESTIMATED @ 15% AS PROFIT ON AFORESAID PURCHASE S AND PASSED THE ORDER U/S 144 R.W.S 147 OF THE ACT DATED 27.02.2015. ON APPEAL, THE LDCIT(A) HAS RESTRICTED THE ADDITION PERCENTAGE TO12.5% AND PART LY ALLOWED THE APPEAL. AGGRIEVED BY THE LDCIT(A)ORDER , THE ASSESSEE HAS FILED AN APPEAL WITH THE HONBLE TRIBUNAL. 3. AT THE TIME OF HEARING LD. AR, SUBMITTED THAT, T HE ASSESSMENT WAS COMPLETED U/S 144 R.W.S 147 OF THE ACT AND NO PROPER NOTICE WAS ISSUED ON THE ADDRESS OF THE ASSESSEE. THE LDCIT(A) HAS RESTRICTED ADDITION @12.5% AS AGAINST 15% ESTIMATED BY THE ASSESSING OFFICER. FURTHER, THE ASSESSEE WAS NOT PROVIDED OPPORTUNITY TO FILE EVIDENCES, DUE TO NON RECEIPT O F NOTICES ISSUED BY THE ASSESSING AUTHORITY. IN THE APPELLATE PROCEEDINGS, THE ASSESSEE HAS FILED THE ADDITIONAL GROUNDS OF APPEAL AND WRITTEN SUBMISSIONS. THE LDCIT(A) HAS NOT CONSIDERED THE ADDITIONAL GROUNDS OF APPEAL, WHICH GOES TO THE ROO TS ITA NO . 2362 /MUM/2019 ANKIT JITENDRA JHAVERI, MUMBAI. - 3 - OF THE CASE. THEREFORE PRAYED FOR AN OPPORTUNITY BEFORE THE CIT(A) TO SUBSTANTIATE THE CASE. 4. CONTRA, THE DR SUPPORTED THE ORDERS OF THE CIT(A). 5. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. PRIMA-FACIE, WE FIND THAT THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT U/S 144 R.W.S 147 OF THE ACT APPLYING THE PROVISIONS OF BES T JUDGMENT AS THE ASSESSEE COULD NOT SUBSTANTIATE THE CASE WITH EXPLANATIONS AND EVIDENCES. THE LDAR SUBMITTED THAT NO OPPORTUNITY WAS PROVIDED TO THE ASSESSEE TO SUBSTANTIATE THE CASE AND LDCIT(A) HAS OVERLOOKED THE ADDITIONAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE. WE CONSIDERING THE PRINCIPLES OF NATU RAL JUSTICE SHALL PROVIDE ONE MORE OPPORTUNITY OF HEARI NG TO THE ASSESSEE TO SUBSTANTIATE THE CASE. ACCORDING LY, WE RESTORE THE DISPUTED ISSUES TO THE FILE OF THE L D CIT(A) TO ADJUDICATE AFRESH AND PASS A SPEAKING ORD ER AND THE ASSESSEE SHALL COOPERATE IN SUBMITTING THE INFORMATION FOR EARLY DISPOSAL OF THE APPEAL, AND W E ALLOW THE GROUNDS OF APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. ITA NO . 2362 /MUM/2019 ANKIT JITENDRA JHAVERI, MUMBAI. - 4 - 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.12.2020 SD/- SD/- (PRAMOD KUMAR) (PAVAN KUMA R GADALE ) VICE PRESIDENT JUDICIAL MEMBER MUMBAI, DATED 17 /12/2020 KRK, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / THE CIT(A) 4. ) ( ) / CONCERNED CIT 5. ,-. //'( , '(# , & / DR, ITAT, MUMBAI 6. .34 5 / GUARD FILE. / BY ORDER, , / //TRUE COPY// 1. / ( ASST. REGISTRAR) !' #, / ITAT, MUMBAI