Indira Gandhi, Maharashtra V. Income Tax Officer 29(1)(5), Mumbai

ITA 2530/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5714 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-10-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 16-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 147; 68; 143(1); 250; 251; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 2530/Mum/2023 (A.Y: 2011-12) Indira Gandhi, 101,1 st Flr,Tulip E & F CHS Ltd, MayureshPark, Bhandup (West), Mumbai-400078. Vs. ITO – 29(1)(5) 107,1 st Floor, C-10, PratyakshaKarBhavan, BKC, Mumbai-400078. PAN/GIR No. : AJZPG7601H Appellant .. Respondent Assessee by : Shri Tanmay Milind Phadke.AR Revenue by : Shri G.J. Ninawe. Sr. DR Date of Hearing 01.01.2023 Date of Pronouncement 03.11.2023 आदेश / O R D E R PER PAVAN KUMAR GADALE JM: The appeal is filed by the assessee against the order of the National Faceless Appeal Centre(NFAC), Delhi / CIT(A) passed u/sec143(3) r.w.s 147 and U/sec 250 of the Act. The assessee has raised the following grounds of appeal: 1. On the f acts and circumstances of the case and in law, the National Faceless Appeal Centre/Commissioner of Income Tax (Appeals) ["the learned Commissioner (Appeals)] erred in conf irming the addition of Rs19,21,187/- under Section 68 of the Act which was made by the learned assessing officer on the basis of the deposits appearing in the bank account ITA No. 2530/Mum/2023 Indira Gandhi, Mumbai. - 2 - wi th Bank of India. It is well settled principle of law that section 68 addition cannot be made on the basis of entries appearing in the bank statement in the absence of books of accounts maintained by the AssesseeThus, the said addition of Rs. 19,21,187/- being contrary to the decision of the jurisdictional Hon'ble Bombay High Court in the case of "CIT vs. Bhaichand NGandhi 141 ITR 67 (Bom)" may be deleted. 2. Without prejudice to the above, on the f acts and circumstances of the case and in la w, the "the learned Commissioner (Appeals) erred in deciding the appeal ex- parte in violation of the principle of natural jus ticeThus, the order dated 10.05.2023 may be set aside and the matter may be restored back to the f ile of the learned Commissioner (Appeals) 3Without prejudice to the above, on the f acts and circumstances of the case and in law, the order dated 10.05.2023 as passed by the learned Commissioner (Appeals) is bad in law since it dismisses the appeal on the reason of non- prosecu tion and does not adjudicate on the grounds/additional grounds of appeal and the issues under consideration The said order being in violation of the provisions of Section 250 and 251 of the Act and the decision of the Hon'ble jurisdic tional Bombay High Court in "CIT vs. Premkumar Arjundas Luthra (HUF)-[2016] 69 taxmann.com 407 (Bombay)" may be quashed. 4Without prejudice to the above, on the f acts and circumstances of the case and in law, the addition of Rs. 19.21,187/- being unsus tainable in la w may be deleted. ITA No. 2530/Mum/2023 Indira Gandhi, Mumbai. - 3 - 5The Appellant craves leave to add, alter, rescind, or amend any of the above grounds of appeal.. 2.. The brief facts of the case that, the assessee has filed the return of income for the A.Y 2010-11 on 29.03.2012 disclosing a total income of Rs.4,590/- and the return of income was processed u/s 143(1) of the Act. Subsequently the Assessing Officer (AO) has received the information that the assessee has made time deposits exceeding Rs. 2 lakhs in the F.Y 2010- 11, therefore the AO has reason to believe that the income has escaped assessment and issued notice u/s 148 of the Act. In compliance to notice, the assessee has filed the return of income on 09.05.2018 disclosing a total income of Rs.2,37,049/- and the assessee was provided copy of the reasons recorded for reopening of assessment and further the notice u/sec 143(2) and U/sec142(1) of the Act are issued. In compliance, the Ld. AR of the assessee appeared from time to time and submitted the details and the AO on verification of bank statements found that there are credits on various dates aggregating to Rs. 19,21,187/- and the assessee was called to explain the sources. Whereas the assessee has filed the explanations vide letter ITA No. 2530/Mum/2023 Indira Gandhi, Mumbai. - 4 - dated 27-11-2018. The A.O has dealt on the facts and explanations and was not satisfied with the submissions as no documentary evidence was submitted in support of high value deposits and made addition of Rs. 19,21,187/- and assessed the total income of Rs.21,58,240/- and passed the order u/sec 143(3) r.w.s 147 of the Act dated 07.12.2018. 3.Aggrieved by the order, the assessee has filed an appeal before the CIT(A), whereas the CIT(A) has considered the grounds of appeal, statement of facts and findings of the AO and has issued notices of hearing and since there was no compliance by the assessee to notices. Therefore the CIT(A) considering the information on record has confirmed the action of the A.O and dismissed the appeal. Aggrieved by the order of the CIT(A), the assessee has filed an appeal before the Hon'ble Tribunal. 4. At the time of hearing, the Ld. AR submitted that the CIT(A) has erred in confirming the action of the Assessing officer overlooking the submissions made in the assessment proceedings. Further the assessee has a good case on merits and shall substantiate with the material evidences ITA No. 2530/Mum/2023 Indira Gandhi, Mumbai. - 5 - and prayed for an opportunity to explain before the lower authorities. Contra, the Ld. DR supported the order of the CIT(A). 5. Heard the rival submissions and perused the material on record. Prima-facie the CIT(A) has passed the order considering the fact that there is no appearance in spite of providing adequate opportunity of hearing and the notices were issued. Therefore, the CIT(A) was of the opinion that the assessee is not interested in prosecuting the appeal and dismissed the appeal ex-parte confirming the action of the assessing officer. The Ld. CIT(A) has issued the notices of hearing referred at Page 3 of the order, but there was no response and thus the Ld.CIT(A) came to a conclusion that the assessee is not interested and decided the appeal based on the information available on record. Whereas the assessee has raised grounds of appeal challenging the additions of the A.O and there could be various reasons for non appearance which cannot be overruled. Therefore, considering the principles of natural justice shall provide with one more opportunity of hearing to the assessee to substantiate the case with evidences and information. Accordingly, set aside the order of the CIT(A) and remit the entire disputed issues to the file of the CIT(A) to adjudicate ITA No. 2530/Mum/2023 Indira Gandhi, Mumbai. - 6 - afresh and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information for early disposal of the appeal. Accordingly, allow the grounds of appeal of the assessee for statistical purposes. 6. In the result, the appeal filed by assessee is allowed for statistical purposes. Order pronounced in the open court on 03.11.2023. Sd/- (PAVAN KUMAR GADALE) JUDICIAL MEMBER Mumbai, Dated 03.11.2023 KRK, PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT (Judicial) 4. The PCIT 5. DR, ITAT, Mumbai 6. Guard File आदेशान ु सार/ BY ORDER, //True Copy// 1. ITA No. 2530/Mum/2023 Indira Gandhi, Mumbai. - 7 - ( Asst. Registrar) ITAT, Mumbai