ROHIT M. UDANI HUF, MUMBAI V. ITO WD 14(1)(3), MUMBAI

ITA 2429/MUM/2010

• Counselvise Citation: 242919914 RSA 2010
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 27-12-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 29-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUM EET KUMAR
• Assessee Lawyers: HITESH P SHAH
• Keywords: Unexplained investment; Income from undisclosed sources; Opportunity of being heard; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI P.M. JAGTAP AND SHRI R.S. PADVEKAR, JM I.T.A.NO.2429/MUM/2010 ASSESSMENT YEAR: 2001-02 SHRI ROHIT M. UDANI, HUF 321, D-8, DIVA NIKETAN, DR. AMBEDKAR ROAD, MATUNGA (CR) MUMBAI 400 019. PAN: AAHHR 6771 C VS. THE INCOME-TAX OFFICER, WARD 14(1)(3), EARNEST HOUSE, NARIMAN POINT, MUMBAI 400 021. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HITESH P. SHAH RESPONDENT BY : SHRI SUMEET KUMAR O R D E R PER P.M. JAGTAP, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS)-25, MUMBAI, DAT ED 12.02.2010 FOR THE ASSESSMENT YEAR 2001-02, WHEREBY HE CONFIRMED THE A DDITION OF RS. 27,00,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLA INED INVESTMENT ALLEGEDLY MADE BY THE ASSESSEE IN LOANS AND ADVANCES AND ALSO CONFIRMED THE ADDITION OF RS. 1,65,000/- MADE BY THE ASSESSING OFFICER ON ACC OUNT OF DIFFERENCE IN FINANCIAL CHARGES. 2. THE ASSESSEE IN THE PRESENT CASE IS AN HUF, WHIC H IS ENGAGED IN THE BUSINESS OF FINANCE INCLUDING ARRANGEMENT OF FUNDS ON BROKERAGE BASIS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILE D BY IT ON 29.03.2004 DECLARING TOTAL INCOME OF RS. 2,68,817/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE LOANS AND ADVANCES GIVEN BY THE ASSESSEE IN CASH WE RE EXAMINED BY THE ASSESSING OFFICER. ON SUCH EXAMINATION, HE RECORD ED THE FOLLOWING FINDINGS/OBSERVATIONS IN RESPECT OF ADVANCES GIVEN BY THE ASSESSEE TO THREE PARTIES AGGREGATING TO RS.27,00,000/-: ITA NO.2429/M/2010 SHRI ROHIT M. UDANI HUF 2 (A) LOANS/ADVANCES GIVEN TO SHREE RUBBER INDUSTRIES . THE ASSESSEE VIDE HIS SUBMISSION DT. 24.11.2008, SU BMITTED THAT ON 15.04.2000 HE HAS GIVEN CASH LOANS TO THE ABOVE COM PANY. THE AUDIT REPORT, COPY OF RETURN ALONG WITH BALANCE SHEET, BA NK STATEMENT ETC. OF THE ABOVE COMPANY WERE CALLED FOR EXAMINATION IT IS FOU ND THAT THERE IS NO SUCH PROOF/EVIDENCE OF LOAN NEITHER AS LOANS OR ADV ANCES, NOR AS ANY LIABILITIES. FURTHER, PROMISSORY NOTES, CHEQUE NO.546482 CF. CAT HOLIC SYRIAN BANK DT.01.03.2008 SUBMITTED BY THE ASSESSEE WERE CAREFU LLY EXAMINED. SHREE SANJAY SHAH VIDE ANSWER TO Q.8 STATED THAT TH ERE COMPANY HAS NEVER TAKEN SUCH LOAN. THE CHEQUES AND PROMISSORY NOTES A RE PREPARED BY THE ASSESSEE HIMSELF. IT WAS ALSO INFORMED THAT SOME OF THESE PROMISSORY NOTES, CHEQUES ETC. WERE STOLEN FROM THEIR BUSINESS PREMISES, AND A POLICE COMPLAINT WAS ALSO FILED IN THIS REGARD ON 23.05.20 01. IN RESPONSE TO THIS COMPLAINT THE ASSESSEE HAS GIVEN WRITTEN SUB MISSIO NS TO POLICY DEPARTMENT VIDE LETTER DATED 24.08.2001 THAT HE WAS NOT ALLOWED TO ENTER THE FACTORY PREMISES AND OFFICE OF THE COMPANY IN S URAT FROM LAST THREE YEARS. FURTHER, TO MENTION THAT ASSESSEE WAS A DIRE CTOR IN ABOVE COMPANY AND WAS RETIRED BY ROTATION ON 29.09.2001, HOWEVER, HE STATES THAT HE HAS NOT RECEIVED ANY NOTICE/CORRESPONDENCE FROM ABOVE C OMPANY FROM LAST THREE YEARS, VIDE HIS LETTER DT.9.10.2001 ISSUED TO THE ABOVE COMPANY. THEN QUESTION ARISES HOW HE HAD GIVEN LOANS TO SUCH A COMPANY. FURTHER, THE ASSESSEE HIMSELF HAS FILED A PETITION IN HIGH C OURT OF GUJARAT, AT AHMEDABAD IN YEAR 2002 AGAINST SHREE RUBBER INDUSTR IES, ALLEGING THE CASH LOAN OF R. 24 LAKH GIVEN. THE HONBLE COURT V IDE ORDER DT.21.04.2003 HAS DISCHARGED THE CASE STATING INTERESTINGLY, THE PETITIONER HEREIN IS A PRACTICI NG CHARTERED ACCOUNTANT AT BOMBAY. THE CASE OF THE PETITIONER IS THAT HE ADVAN CED A SUM OF RS.24 LAKHS IN CASH TO THE RESPONDENT COMPANY AND FOR REP AYING THE SAID AMOUNT, THE COMPANY ISSUED CHEQUE TO THE CHARTERED ACCOUNTANT, WHICH WERE DISHONORED. IT IS ALSO THE CASE OF THE PETITI ONER THAT THE RESPONDENT COMPANY HAD ALSO ISSUED PROMISSORY NOTES IN HIS FAV OUR. ONLY ON THE GROUND THAT THE CHARTERED ACCOUNTANT FI NANCING A SUM OF RS.24.00 LAKHS IN CASH TO THE RESPONDENT-COMPANY DO ES NOT INSPIRE ANY CONFIDENCE TO INTERFERE IN THE PRESENT PETITION. TH E PETITION IS DISMISSED. HOWEVER, IT WILL BE OPEN FOR THE PETITIONER TO TAKE RECOURSE TO THE APPROPRIATE CIVIL REMEDY AVAILABLE TO HIM UNDER THE LAW. NOTICE IS DISCHARGED. THE ASSESSEE WAS ASKED TO SUBMIT THE COPIES OF ROI FILED FOR A.Y. 1999- 2000 AND 2000-2001. IN REPLY TO THIS ASSESSEE HAS F ILED A LETTER DT.12.11.2008 WHEREIN HE HAS FILED COPY OF BALANCE SHEET, PROFIT AND LOSS ACCOUNT AND COPY OF CAPITAL ACCOUNT AS ON 31-03-200 0 (A.Y.2000-01). HOWEVER, ACKNOWLEDGE COPY OF ROI FOR A.Y. 2000-01 A ND RECORDS PERTAINING TO A.Y. 1999-2000 ARE NOT FILED AS THEY ARE RETRIEVABLE. FURTHER ON VERIFICATION FROM THE ROI FOR A.Y. 2002-03, 2003 -04, 2004-05 FILED IN THIS OFFICE IT IS SEEN THAT THE ASSESSEE HAS NEVER FILED BALANCE SHEET CAPITAL ACCOUNT PERTAINING TO ABOVE MENTION. A.Y. WHICH ITS ELF SHOWS THAT THEE WAS NO LOAN/ADVANCES GIVEN BY THE ASSESSEE ALSO THE BAL ANCE SHEET FILED FOR A.Y.2000-01 WITHOUT ACKNOWLEDGE COPY OF ROI IS NOT ACCEPTABLE, AS THE ASSESSEE HAS GIVEN ALL DETAILS EXCEPT, COPY OF ROI FILED. ALL THE SUBMISSIONS MADE BY THE ASSESSEE ARE ITSELF CONTRADICTORY, NOT RELIABLE AND ACCEPTABLE, ASSESSEE FAILS TO PROVE ALL HIS STATEMENT SATISFACT ORILY, AS THERE ARE NO EVIDENCE IN THE ROI FILED BY THE ASSESSEE REGARDING THE ALLEGED LOANS/ADVANCES. EVEN IN ROI FILED FOR THE A.Y. 2002 -03 AND 2003-04 NO SUCH LOANS/ADVANCES HAS BEEN REFLECTED. MERELY BECA USE OF NOTICE U/S.148 ITA NO.2429/M/2010 SHRI ROHIT M. UDANI HUF 3 OF THE I.T. ACT ISSUED TO THE ASSESSEE, HE HAS FILE D REVISED COMPUTATION OF INCOME ALONG WITH BALANCE SHEET AND CAPITAL ACCOUNT FOR THE A.Y. 2001-02, HAD IT BEEN NOT SO THE ASSESSEE SHOULD HAVE FILED R EVISED ROI FOR THE A.Y. 2001-02, 2002-03, 2003-04 VOLUNTARILY. HOWEVER, THE ASSESSEE HAS SHOWN RS. 10,00,000/- AS LOANS AND ADVANCES IN HIS BOOKS OF ACCOUNTS, WHICH ARE UNEXPLAINED AND NOT PROVED THE GENUINENESS. HENCE, I PROPOSE TO ADD RS. 10,00,000/ - BEING INCOME FROM UNDISCLOSED SOURCES AND ADDED TO THE TOTAL INCOME O F ASSESSEE. PENALTY PROCEEDINGS U/S.271(1)(C) OF THE I.T.ACT, 1961 ARE INITIATED SEPARATELY. B) SHREE AMBICA RUBBER CO. THE ASSESSEE HAS ALLEGED THAT HE HAD MADE CASH LOAN PAYMENTS OF RS.10 LAKHS ON 10.08.2000 TO THE ABOVE COMPANY AGAINST WH ICH, HE WAS ISSUED A PROMISSORY NOTE OF RS.15,00,000/-(RS.5 LACS FOR EAR LIER LOAN) AND CHEQUE BEARINGNO.510715, DT.10.05.2001 FOR RS.15,00,000/- DRAWN ON BANK OF BARODA, PANDESARA GUJARAT. SHRI SANJAY SHAH ON BEHALF OF SHRI AMBICA RUBBER CO . SUBMITTED VARIOUS DETAILS. HE STATED THAT THE COMPANY HAS NOT TAKEN A NY LOAN OR ADVANCES FROM THE ASSESSEE NOT HAVE ISSUED ANY LETTER FOR ARRANGI NG LOANS TO ASSESSEE. THE BALANCE SHEET, BANK STATEMENT FOR THE FINANCIAL YEA R WAS ALSO SUBMITTED. FURTHER THE COMPANY HAS NOT TAKEN ANY LOANS, NOR HA S ACCOUNTED IN THE BOOKS OF ACCOUNTS AND HENCE THERE IS NO OUTSTANDING BALANCES OF SUCH ALLEGED LOANS. THE ASSESSEE HAS, IN THE ROI FILED ON 16.09.2008 IN RESPONSE TO NOTICE U/S.148 OF THE IT ACT, SHOWN OF RS.15,00,000/- AS L OANS AND ADVANCES TO SHRI AMBICA RUBBER COMPANY WHICH IS NOT CORRECT AND CONT RADICTORY IN MY VIEW. HENCE, THE ALLEGED LOAN GIVEN TO M/S. SHREE AMBICA RUBBER CO. IS TREATED AS CASH CREDIT IN THE BOOKS OF ASSESSEE AND ADDED TO T HE TOTAL INCOME OF THE ASSESSEE. THE FOLLOWING CASH LAWS SUPPORT MY VIEWS: I) CIT VS. ORISA CORPORATION 159 ITR 78, 82 (SC) II) MUNSHI VS. CIT 126 ITR 663 III) SHANTA DEVI VS. CIT 171 ITR 532 IV) CIT VS. SHIVSHAKTI 229 ITR 505 PENALTY PROCEEDINGS U/S.271(1)(C) OF THE I.T.ACT, 1 961 ARE INITIATED SEPARATELY. C) SHREE BHAGWATI TRADING CO. THE ASSESSEE VIDE HIS LETTER DT.24.11.2008 HAS STAT ED THAT HE HAS MADE PAYMENTS OF RS.7 LAKHS ON 20.09.2000 TO THE ABOVE C OMPANY. TO SUPPORT HIS CLAIM HE FILED COMPLAINT AGAINST THE ABOVE COMPANY U/S.138 R.W.S.1141 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881. THE ASSESSEE HAS SUBMITTED THAT HE HAS GIVEN CASH LOAN OF RS.7,00,000/- IN LIEU OF WHI CH HE WAS ISSUED PROMISSORY NOTES AND AN CHEQUE BEARING NO.0750611 D T.20.03.2001 FOR RS.7,00,000/- DRAWN ON BANK OF BARODA, PANDESARA, G UJARAT. IT IS SEEN THAT ALL THE PROMISSORY NOTES AND CHEQUES BEARS THE HAND WRITING OF ASSESSEE HIMSELF, AND APPEARS TO BE SELF PREPARATORY. FURTH ER IT NEEDS TO MENTION THAT THE PROMISSORY NOTES AND CHEQUES OF THE ABOVE COMPA NY WERE MISPLACED/STOLEN AND THE SAME WERE REPORTED TO THE CONCERN POLICE STATION BY THE SAID COMPANY. THE COPY OF WHICH IS ON RECOR D, SHRI SANJAY SHAH WAS ASKED IN Q.NO.11 REGARDING THE SAID CASH LOANS. HE REPLIED THAT SHREE BHAGWATI TRADING CO. HAS NOT TAKEN ANY LOANS NOR HA S AUTHORIZED THE ASSESSEE TO ARRANGE FOR THE SAME. FURTHER, THE BAL ANCE SHEET OF ITA NO.2429/M/2010 SHRI ROHIT M. UDANI HUF 4 M/S.BHAGWATI TRADING CO. DOES NOT HAVE ANY SUCH DES CRIPTION AS LOANS OR ADVANCES/UNSECURED LOANS OR BALANCE OUTSTANDING. IN MY VIEW, THE ASSESSEE HAS NOT BROUGHT INTO BOOKS OF ACCOUNTS THE LOANS OF RS.7,00,000/- GIVEN TO M/S. SHREE BHAGWATI TRADING CO. AND SUBMITTED A RETURN ON 16.09.2008, BEYOND THE PRESCRIBED TIME LI MIT U/S.148 OF THE I.T.ACT. IT MAY ALSO BE MENTIONED THAT THE ASSESSEE HAS NOT FILED THE BALANCE SHEET, CAPITAL ACCOUNT WITH THE ORIGINAL RETURN OF INCOME ON 29.03.2004. HENCE, I AM OF THE VIEW THAT THE LOAN GIVEN B THE A SSESSEE IS NOT TAKEN INTO ACCOUNT WHILE FILING THE RETURN U/S.148. HENCE, THE SAME IS ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTM ENT U/S.69 OF THE I.T.ACT, 1961. 3. ON THE BASIS OF THE ABOVE FINDINGS/OBSERVATIONS RECORDED BY HIM, THE ASSESSING OFFICER TREATED THE LOANS AND ADVANCES GI VEN BY THE ASSESSEE TO THREE PARTIES AGGREGATING TO RS. 27,00,000/- AS THE UNEXP LAINED INVESTMENT OF THE ASSESSEE AND ADDED THE SAME TO ITS TOTAL INCOME IN THE ASSESSMENT COMPLETED U/S.147 READ WITH SECTION 143(3) VIDE ORDER DATED 3 0.12.2009. HE ALSO ADDED THE SUM OF RS. 1,65,000/- TO THE TOTAL INCOME OF THE AS SESSEE IN THE SAID ASSESSMENT BEING THE DIFFERENCE THE FINANCIAL CHARGES AS SHOWN BY THE ASSESSEE IN THE CASH FLOW STATEMENT AND AS REFLECTED IN THE PROFIT & LOS S ACCOUNT. 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R U/S.147 READ WITH SECTION 143(3), APPEAL WAS PREFERRED BY THE ASSESSE E BEFORE THE LEARNED CIT(A). DURING THE CURSE OF APPELLATE PROCEEDINGS BEFORE TH E LEARNED CIT(A), A LETTER DATED 20.7.2009 WAS FILED BY THE ASSESSEE SEEKING ADMISSI ON OF THE ADDITIONAL EVIDENCE IN THE FORM OF COPIES OF BALANCE SHEETS FOR THE ASS ESSMENT YEARS 2006-07 AND 2007-08, COPIES OF THE RETURN OF INCOME, COPIES OF CASES FILED WITH SURAT POLICE, COPIES OF JUDGMENTS OF BOMBAY HIGH COURT, ETC. THE SAID ADDITIONAL EVIDENCE WAS FORWARDED BY THE LEARNED CIT(A) TO THE ASSESSING OF FICER FOR THE LATTERS COMMENT. THE ASSESSING OFFICER SUBMITTED A REMAND REPORT DAT ED 29.12.2009 TO THE LEARNED CIT(A) OFFERING HIS COMMENTS ON THE ADDITIONAL EVID ENCE FILED BY THE ASSESSEE AS UNDER: I HAVE OBJECTION TO ADMIT THE ADDITION EVIDENCE PR ODUCED BEFORE YOU BEING HE HAS BEEN NEVER REFUSED TO SUBMIT THE EVIDE NCE DURING THE ASSESSMENT PROCEEDINGS. DURING THE ASSESSMENT PROCE EDINGS THE DETAILS AS ASKED FOR WAS SUBMITTED BY THE ASSESSEE AND NEVER ASKED ITA NO.2429/M/2010 SHRI ROHIT M. UDANI HUF 5 FOR SUBMITTING THE FURTHER DETAILS IF ANY HE HAS DU RING THE ASSESSMENT PROCEEDINGS. MOREOVER ASSESSEE HAS NOT SHOWN ANY S UFFICIENT CAUSE FOR NOT PRODUCING THE EVIDENCES NOW SUBMITTED BEFO RE YOU. WITHOUT PREJUDICE TO THE ABOVE, IT IS SUBMITTED THA T ON VERIFICATION/EXAMINATION OF ADDITIONAL EVIDENCE IT IS FUND THAT 1) THE ACKNOWLEDGEMENT OF RETURN FOR A.Y. 2006-07 AND 2007-08 ARE NOT RELEVANT TO THE A.Y. 2001-02 2) A LETTER OF SURAT POLICE IN GUJARAT AND ITS ENGLISH TRANSLATION IS NOT RELEVANT TO THE A.Y. 2001-02 3) ON GOING THROUGH THE JUDGMENT OF MUMBAI HIGH COURT IT IS SEEN THAT M/S. SHREE AMBIKA RUBBER COMPANY ACCUSED NO.1, DEEPAK R. SHAH ACCUSED NO.2 AND MRS. DAKSH S. SHAH ACCUSED NO .3 HAS PUNISHED U/S. 138 OF NEGOTIABLE INSTRUMENTS ACT DI RECTED TO PAY RS.25,000/- ANDRS.11,00,000/- AS COMPENSATION. THE AO HAS MADE ADDITION ON THE BASIS OF MATERIAL A VAILABLE ON RECORD SUCH AS BALANCE SHEET AND BANK STATEMENT OF M/S. SH REE AMBIKA RUBBER CO,. IN VIEW OF ABOVE, IT IS TO FURTHER ADD THAT THE ASS ESSEE WAS NEVER PREVENTED FROM FILING THE COPIES OF BALANCE SHEET A S WELL AS THE DETAILS OF THESE COURT CASES AND DECISION THEREON WHICH ARE NO RELEVANT TO THE A.Y. 2001-02. IT IS FURTHER EVIDENT FROM THE RECORD THAT THE KART A OF HGUF SHRI ROHIT UDANI IS CHARTERED ACCOUNTANT BY PROFESSION HAD NO T FILED REPLY IN GIVEN TIME TO NOTICE U/S.144 OF THE IT ACT DTD. 31. 3.2008 ISSUED AND SERVED ON 31.3.2008. THE ASSESSEE WAS SUPPOSED TO F ILE HIS REPLY TO THIS NOTICE WITHIN 30 DAYS FROM THE RECEIPT OF THE SAID NOTICE. THE ASSESSEE FINALLY FILED RETURN OF INCOME ON 16 TH SEPT. 2008 ALONG WITH REVISED STATEMENT OF TOTAL INCOME AFTER ALMOST 170 DAYS IT MEANS ASSESSEE HIMSELF WAS TRYING TO AVOID WITH ASSESSMEN T PROCEEDINGS OTHERWISE KARTA BY PROFESSION CA SHOULD HAVE BEEN F ILED HIS REPLY TO NOTICE U/S.148 IN GIVEN TIME. IN VIEW OF ABOVE IT IS FURTHER ESTABLISHED THAT THE ASSESSEE WAS NEVER PREVENTED TO PRODUCE OF FILING ANY EVIDENCE BEFORE A.O. 5. AS STATED BY THE LEARNED CIT(A) IN HIS IMPUGNED ORDER, THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER WAS FORWARDED BY HIM TO THE ASSESSEE ALONG WITH A NOTICE DATED 01.02.2010 FIXING THE HEARING O N 12.2.2010 BUT NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE SAID DATE OF HEARI NG. THE LEARNED CIT(A), THEREFORE, PROCEEDED TO DISPOSE OF THE APPEAL OF TH E ASSESSEE ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD AND CONFIRMED THE ADDI TION OF RS. 27 LACS MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED INVESTMENT ALLEG EDLY MADE BY THE ASSESSEE IN ITA NO.2429/M/2010 SHRI ROHIT M. UDANI HUF 6 LOANS AND ADVANCES AFTER DENYING TO ADMIT THE ADDIT IONAL EVIDENCE FILED BY THE ASSESSEE. HE ALSO CONFIRMED THE ADDITION OF RS. 1,6 5,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE IN FINANCIAL CHARG ES HOLDING THAT NO EXPLANATION WAS OFFERED BY THE ASSESSEE TO RECONCILE THE SAID D IFFERENCE. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A), THE ASSESSEE HAS PREFE RRED THIS APPEAL BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AS POINTED BY THE LE ARNED COUNSEL FOR THE ASSESSEE FROM THE COPY OF THE RELEVANT ENVELOP PLACED ON REC ORD, A NOTICE DATED 1.02.2010 ISSUED BY THE LEARNED CIT(A) FIXING THE HEARING ON 12.2.2010 WAS ACTUALLY RECEIVED BY THE ASSESSEE ONLY ON 16.02.2010. HE HAS ALSO IN VITED OUR ATTENTION TO THE COPY OF THE LETTER DATED 16.02.2010 SUBMITTED TO THE OFF ICE OF THE LEARNED CIT(A) ON THE SAME DATE I.E. 16.02.2010 INTIMATING THE DELAY IN R ECEIPT OF THE NOTICE DATED 1.02.2010 AND SEEKING SOME MORE TIME TO PREPARE AND FILE THE REPLY ON THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER. I N OUR OPINION, THIS DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE IS SUFFI CIENT TO SHOW THAT THE NOTICE DATED 01.02.2010 ISSUED BY THE LEARNED CIT(A) FIXIN G THE HEARING ON 12.2.2010 WAS ACTUALLY RECEIVED BY THE ASSESSEE ONLY ON 16.02 .2010 AND THE LEARNED CIT(A) HAVING PASSED THE IMPUGNED ORDER ON 12.02.2010 ITSE LF, THE ASSESSEE WAS NOT GIVEN A PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD ON THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER ON THE BASIS OF WHICH THE REQUEST OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE WAS REJECTED BY THE LEARNED CIT(A) AND THE ISSUE WAS DECIDED ON MERIT AGAINST THE ASSE SSEE. WE, THEREFORE, DEEM IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO S ET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) ON THIS ISSUE AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE SAME AFRESH AFTER GIVING PROPER AND SU FFICIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. WE ALSO RESTORE THE OTHE R ISSUE RELATING TO THE ADDITION ITA NO.2429/M/2010 SHRI ROHIT M. UDANI HUF 7 OF RS. 1,65,000/- MADE ON ACCOUNT OF DIFFERENCE IN FINANCIAL CHARGES TO THE FILE OF THE LEARNED CIT(A) WITH DIRECTION TO DECIDE THE SA ME AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO EXPLA IN THE SAID DIFFERENCE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF APRIL, 2011. SD/- SD/- (R.S. PADVEKAR) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED THE 27 TH APRIL, 2011. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-14, MUMBAI. 4. THE CIT(A)-25, MUMBAI 5. THE DR D BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI