MRS. PRANITA P. THAKUR, MUMBAI V. INCOME TAX OFFICER WARD-4(3), THANE

ITA 2429/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7704 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 20-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Unexplained cash credit; Search and seizure; Opportunity of being heard; Principle of natural justice; Reason to believe
• Section: 147; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 2429 / MUM . /2018 ( ASSESSMENT YEAR : 20 09 10 ) SMT. PRANITA P. THAKUR THAKUR NIWAS, CHHATRAPATI SHIVAJI ROAD VIRAR (W), VASAI VIRAR PAN AAUPT2294F . APPELLANT V/S INCOME TAX OFFICER WARD 4 ( 3 ), THANE . RESPONDENT ITA NO. 2430 /MUM. /2018 ( ASSESSMENT YEAR : 20 10 11 ) SMT. PRANITA P. THAKUR THAKUR NIWAS, CHHATRAPATI SHIVAJI ROAD VIRAR (W), VASAI VIRAR PAN AAUPT2294F . APPELLANT V/S INCOME TAX OFFICER WARD 4 ( 3 ), THANE . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI CHAITANYA ANJARIA DATE OF HEARING 03 . 0 1 .201 9 DATE OF ORDER 16.01.2019 2 SMT. PRANITA P. THAKUR O R D E R A FORESAID APPEALS HAVE BEEN FILED BY THE ASSESSEE CHALLENGING TWO SEPARATE ORDERS , BOTH DATED 19 TH JANUARY 2018, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 3, THANE, PERTAINING TO THE ASSESSMENT YEAR S 2009 10 AND 2010 11. 2 . BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. ON THE BASIS OF INFORMATION AVAILABLE DURING A SEARCH AND SEIZURE OPERATION CARRIED OUT IN CASE OF SWASTIC GROUP ON 31 ST JULY 2014, THE ASSESSING OFFICER HAD REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX FO R THE AFORESAID ASSESSMENT YEARS HAVE ESCAPED ASSESSMENT. ACCORDINGLY, HE RE OPENED THE ASSESSMENT S UNDER SECTION 147 OF THE ACT FOR BOTH THE ASSESSMENT YEARS UNDER APPEAL. IN COURS E OF THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ON THE BASIS OF MATER IAL AVAILABLE ON RECORD FOUND THAT THOUGH THE ASSESSEE HAD INTRODUCED CASH AMOUNTING TO ` 35 LAKH IN ASSESSMENT YEAR 2009 10 AND ` 19,10,000 IN ASSESSMENT YEAR 2010 11, THE INFORMATION RELATING TO SOURCE OF SUCH CASH INTRODUCTION HAS NOT BEEN DISCLOSED TO THE DEPARTMENT. ACCORDINGLY, HE CALLED UPON THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSITS. AS OBSERVED BY THE ASSESSING OFFICER, IN COURSE OF ASSESSMENT PROCEEDINGS, THOUGH, THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED COPY OF RETU RN OF INCOME ALONG WITH COMPUTATION OF INCOME, BANK STATEMENT, PROFIT & LOSS 3 SMT. PRANITA P. THAKUR ACCOUNT AND BALANCE SHEET, HOWEVER, THE ASSESSING OFFICER ULTIMATELY CONCLUDED THAT THE ASSESSEE WAS UNABLE TO EXPLAIN THE CASH INTRODUCTION IN HER BOOKS IN BOTH THE ASSESSMENT YE ARS. ACCORDINGLY, HE TREATED THE AMOUNT OF ` 35 LAKH AND ` 19,10,000 FOR ASSESSMENT YEARS, 2009 10 AND 2010 11 RESPECTIVELY , AS APPEARING IN THE BALANCE SHEET OF THE ASSESSEE TOWARDS CLOSING BALANCE IN RESPECT OF SWASTIC GROUP , AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AND ADDED BACK TO THE INCOME OF THE ASSESSEE. BEING AGGRIEVED WITH SUCH ADDITION, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3 . H OWEVER, SINCE THE ASSESSEE FAILED TO APPEAR AND REPRESENT HER CASE, LEARNED COMMISSIONER (APPEALS) DISPOS ED OFF BOTH THE APPEALS EX PARTE BY UPHOLDING THE ADDITIONS MADE BY THE ASSESSING OFFICER. 4 . THOUGH, THE ASSESSEE FILED AN APPLICATION SEEKING ADJOURNMENT, HOWEVER, LOOKING AT THE NATURE OF DISPUTE, I AM NOT INCLINED TO GRANT ADJOURNMENT AND PROCEED TO DISPOSE OFF THESE APPEALS EX PARTE AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND ON THE BASIS OF MATERIAL ON RECORD. 5 . I HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED DEPARTMENTAL REPRESENTA TIVE AND PERUSED MATERIAL ON RECORD. 4 SMT. PRANITA P. THAKUR 6 . IN GROUND NO.1, WHICH IS COMMON IN BOTH THE APPEALS, THE ASSESSEE HAS CHALLENGED THE ORDERS PASSED BY THE FIRST APPELLATE AUTHORITY TO BE IN VIOLATION OF RULES OF NATURAL JUSTICE. 7 . AS DISCUSSED EARLIER, LEARNED COMMIS SIONER (APPEALS) DISPOSED OFF THE APPEALS FILED BY THE ASSESSEE EX PARTE BY SUSTAINING THE ADDITIONS MADE BY THE ASSESSING OFFICER. FROM THE IMPUGNED ORDER OF THE LEARNED COMMISSIONER (APPEALS) IT APPEARS THAT ON THE LAST DATE OF HEARING FIXED ON 16 TH J ANUARY 2018 THE ASSESSEE DID NOT APPEAR , HENCE, THE APPEALS WERE DISPOSED OFF EX PARTE. HOW EVER, IT APPEARS FROM THE ORDERS OF THE FIRST APPELLATE AUTHORITY , ON EARLIER OCCASIONS WHEN THE APPEALS WERE FIXED THE ASSESSEE DID APPEAR AND SOUGHT ADJOURNMENT. T HEREFORE, IN MY CONSIDERED OPINION, THE ASSESSEE DESERVES AN OPPORTUNITY TO PRODUCE RELEVANT DOCUMENTARY EVIDENCES AND EXPLAIN THE NATURE AND SOURCE OF CASH INTRODUCED TO HER BALANCE SHEET WHICH SHE COULD NOT DO , SINCE , THE APPEALS WERE DECIDED EX PARTE BY THE LEARNED COMMISSIONER (APPEALS). ACCORDINGLY, I SET ASIDE THE IMPUGNED ORDERS OF THE LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUES BACK TO HIM FOR DE NOVO ADJUDICATION AFTER REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FURTHER, I DIRE CT THE ASSESSEE TO RESPOND TO THE NOTICE OF HEARING TO BE ISSUED TO THE LEARNED COMMISSIONER (APPEALS) AND REPRESENT HER CASE IN A 5 SMT. PRANITA P. THAKUR PROPER AND EFFECTIVE MANNER BY FURNISHING SUPPORTING DOCUMENTARY EVIDENCES. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.01.2019 SD/ SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 16.01.2019 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 (SR. PRIVATE SECRETARY) ITAT, MUMBAI