SUNDER TRANSPORT, MUMBAI V. ASST CIT 18(3), MUMBAI

ITA 2654/MUM/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8150 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2012-2013
• Appeal Filed On: 12-04-2017
• Court: TRIBUNAL

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL G BENCH MUMB AI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO. 2654/MUM/2017 (ASSESSMENT YEAR 2012-13 ) SUNDER TRANSPORT C/O, MR. JAYA RELA, 12, SHARDA BUILDING, BHAIJIVANJI LANE, S.K. PATIL GARDEN, CHARNI ROAD, MUMBAI-400002 . PAN: AACFS2007H VS. ACIT-18(3), 6 TH FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI-400021. APPELLANT RESPONDENT APPELLANT BY : SHRI B.V. JHAVERI (ADVOCATE) RESPONDENT BY : SHRI B.B. RAJENDRA PRASAD (DR) DATE OF HEARING : 29.11.2018 DATE OF PRONOUNCEMEN T :26.12.2018 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER ; 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME TAX ACT IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER (APPEALS) -29, MUMBAI DATED 7 TH NOVEMBER 2016, WHICH ARISES FROM ASSESSMENT ORDER D ATED 27 TH OF MARCH 2015 PASSED UNDER SECTION 144 OF THE INCOME-TAX ACT (ACT). THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: (I) YOUR APPELLANT SUBMITS THAT THE COMMISSIONER OF INC OME TAX IS NOT JUSTIFIED IN CONFIRMING DISALLOWANCE OF ENTIRE EXPE NSES DEBITED TO PROFIT AND LOSS ACCOUNT IN TREATING THE ENTIRE GROS S RECEIPT IN PROFIT AND LOSS ACCOUNT AS UNEXPLAINED CASH CREDIT UNDER S ECTION 68 OF INCOME TAX ACT WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD. (II) YOUR APPELLANT SUBMITS THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN SENDING NOTICES AT THE WRONG ADDRESS DESPI TE PROVIDING CORRECT ADDRESS FOR COMMUNICATION BEING A SPECIFIE D IN THE APPEAL ITA NO. 2654/MUM/2017- SU NDER TRANSPORT 2 FORM AS WELL AS LETTER FOR CHANGE OF ADDRESS FILED BEFORE COMMISSIONER OF INCOME TAX (III) YOUR APPELLANT PRAYS THAT OPPORTUNITY OF BEING HEAR D BE GIVEN TO SUBMIT RELEVANT DETAILS AND THE APPEAL BE ALLOWED. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS A PART NERSHIP FIRM ENGAGED IN THE BUSINESS OF CONTRACT ONLY FOR TRANSPORTATION OF CHA SES MANUFACTURED BY TATA MOTORS LIMITED. THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2012-13 ON 13 TH SEPTEMBER 2012 DECLARING TOTAL INCOME OF RS. 57,16,910/-. THE ASSESSMENT WAS COMPLETED ON 27 TH MARCH 2015 UNDER SECTION 144 OF THE ACT. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER NOTED THAT THE ASSESSEE HAS NOT APPEARED DESP ITE SENDING REPEATED NOTICE. THE ASSESSING OFFICER ON PERUSAL OF PROFIT AND LOSS ACCOUNT NOTED THAT ASSESSEE HAS SHOWN TOTAL EXPENSES OF RS. 11,05 ,43,318/- UNDER VARIOUS HEAD AGAINST THE TOTAL INCOME EARNED AT RS.11,60,91 ,688/-. SINCE THE ASSESSEE FAILED TO FILE THE NECESSARY DETAILS AND D OCUMENTS, VOUCHER AND OTHER EVIDENCES FOR CLAIMING EXPENSES, DEBITED TO P ROFIT AND LOSS ACCOUNT OR TO PROVE WHETHER THE EXPENSES WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE ASSESSING OFFICER TREATED THE ENTIRE RECEIPT AS UNEXPLAINED CASH CREDIT UNDER SECTION 68. ON APPEAL BEFORE COMMISSIONER (APPEALS) THE ACTION OF ASSESSING OFFICER WAS CONFI RMED. THEREFORE, FURTHER AGGRIEVED BY THE ORDER OF LEARNED COMMISSIO NER (APPEALS), THE ASSESSEE HAS FILED PRESENT APPEAL BEFORE THIS TRIBU NAL. ITA NO. 2654/MUM/2017- SU NDER TRANSPORT 3 3. WE HAVE HEARD THE SUBMISSION OF LEARNED AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE AND LEARNED DEPARTMENTAL REPRESENTA TIVE (DR) FOR REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT TH E OUTSET OF HEARING THE LEARNED AR OF THE ASSESSEE SUBMITS THAT THE LOWER A UTHORITIES PASSED THE ORDER EX-PARTE WITHOUT GIVING FAIR AND PROPER OPPOR TUNITY TO THE ASSESSEE. ON OUR QUARRIES ON MERIT OF THE CASE, THE LEARNED A R OF THIS ASSESSEE SUBMITS THAT ASSESSEE IS IN THE BUSINESS OF TRANSPO RTING AND DELIVERING VEHICLES OF TATA MOTORS LIMITED FROM ITS MANUFACTUR ING UNIT TO VARIOUS DEALERS AT DIFFERENT LOCATIONS ALL OVER THE COUNTRY . THE ASSESSEE THREE- PARTNER. THE BUSINESS OF ASSESSEE FIRM WAS MANAGED BY ALOK SUNIL BAFNA PARTNER OF THE ASSESSEE. THE REMAINING TWO PARTNER BEING FATHER AND MOTHER WERE NOT INVOLVED IN THE BUSINESS ACTIVITIES OF THE ASSESSEE FIRM, EXCEPT SIGNING THE PAPERS. ALOK SUNIL BAFNA DIED IN A ROAD ACCIDENT ON 30 TH JULY 2015. THE DEATH OF THE PARTNER PARALYSED THE ENTIRE FAMILY FOR ALMOST 12 MONTHS. THEREAFTER, FATHER OF ALOK BAFNA, SH. SUNIL BAFNA STARTED ATTENDING THE BUSINESS AND ACCORDINGLY MADE CONTACT WITH THE CHARTERED ACCOUNTANT (CA) IN THE MONTH OF AUGUST 2016 FOR THE PURPOSE OF DISCUSSING VARIOUS ISSUES OF THE FIRM. IN THIS MEETING WITH CA IT WAS DISCLOSED THAT IN ABSENCE OF FILING THE NECESSARY DETAILS AND SUPPORTING EVID ENCE BEFORE THE LOWER AUTHORITIES, ADVERSE ORDER IS PASSED BY THE LOWER A UTHORITIES. THE LEARNED AR FURTHER SUBMITS THAT DURING THE ASSESSMENT PROCE EDING THE ADDRESS OF THE ASSESSEE FIRM WHAT CHANGED, THIS FACT WAS BROUG HT TO THE NOTICE OF ITA NO. 2654/MUM/2017- SU NDER TRANSPORT 4 ASSESSING OFFICER, ITO, WARD 14(1)(3) THE THEN, VID E APPLICATION DATED 07.10.2014. DUE TO RESHUFFLING/RESTRUCTURING OF JUR ISDICTION OF ASSESSING OFFICER IN THE MONTH OF NOVEMBER 2014 THE CASE OF A SSESSEE WAS TRANSFERRED FROM ACIT CIRCLE 14(1) TO ACIT CIRCLE 1 8(1). ON CHANGE OF JURISDICTION, NO NOTICE FROM THE ASSESSING OFFICER WAS RECEIVED AND THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER UNDER SECTION 144 BY MAKING ADDITION OF ENTIRE GROSS RECEIPT UNDER SECTI ON 68 OF THE ACT. THE LD. CIT(A) ALSO PASSED THE ORDER WITHOUT GIVING OPPORTU NITY TO THE ASSESSEE. THE LD. AR SUBMITS THAT THE MATTER MAY BE RESTORED TO THE FILE ASSESSING OFFICER FOR ADJUDICATION OF THE GROUNDS OF APPEAL A FRESH. 4. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF LOWER AUTHORITIES. THE LD. DR FURTHER SUBMITS THAT THE AS SESSEE HAS NOT GIVEN ANY EVIDENCE EITHER BEFORE THE ASSESSING OFFICER OR TO THE FIRST APPELLATE AUTHORITY. THEREFORE, THE ASSESSEE DOES NOT DESERVE ANY LENIENCY. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDER OF AUTHORITIES BELOW. WE HAVE NOT ED THAT THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER UNDER SECTION 1 44 OF THE ACT AFTER TAKING VIEW THAT ASSESSEE HAS NOT FURNISHED ANY DET AIL OR SUPPORTING EVIDENCE TO SUBSTANTIATE THE EXPENSES DEBITED FROM PROFIT & LOSS ACCOUNT. THE ASSESSING OFFICER DESPITE NOTING THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF TRANSPORT MADE THE ADDITION OF ENTIRE R ECEIPT BY TREATING IT AS UNEXPLAINED CASH CREDIT. THE LD. COMMISSIONER (APPE ALS) ALSO PASSED THE ITA NO. 2654/MUM/2017- SU NDER TRANSPORT 5 ORDER ON TAKING VIEW THAT THE ASSESSEE IS NOT INTER ESTED IN PURSUING THE APPEAL AND/OR THERE IS NO COMPLIANCE OF NOTICES. FA CT REMAINS THE SAME THAT THE LOWER AUTHORITIES PASSED THE ORDER EX-PARTE AND WITHOUT CALLING THE NECESSARY DETAILS OR CONSIDERING THE SAME. WE HAVE FURTHER NOTED THAT BEFORE ITO-14(1)(3), THE ASSESSEE FURNISHED CHANGE/ FRESH ADDRESS OF THE ASSESSEE ON 14.10.2014 VIDE ITS LETTER DATED 07.10. 2014 (PAGE NO. 24 OF PB). THE ASSESSING OFFICER/ACIT-18(3) VIDE ITS NOTICE DA TED 03.12.2014 AGAIN ISSUE THE NOTICE ON THE OLD ADDRESS AND ULTIMATELY PASSED ASSESSMENT ORDER UNDER SECTION 144 OF THE ACT. WE HAVE FURTHER NOTE D THAT FIRST APPEAL BEFORE THE LD. COMMISSIONER (APPEALS) WAS FILED ON 01.05.2 015. AS CONTENDED BY LD. AR OF THE ASSESSEE THAT ACTIVE PARTNER OF THE A SSESSEE NAMELY ALOK SUNIL BAFNA WHO WAS LOOKING AFTER THE ENTIRE PAYER OF THE ASSESSEE-FIRM DIED IN A ROAD ACCIDENT ON 13.07.2015. THE FAMILY OF PARTNERS OF ASSESSEE REMAINED UNDER SHOCK AND MOURN FOR ALMOST ONE YEAR AND COULD NOT FURNISH THE DETAILS ON TIME BEFORE LD. COMMISSIONER (APPEALS). THEREFORE, KEEPING IN VIEW THE PRINCIPAL OF NATURAL JUSTICE AND PROVIDING OPPORTUNITY TO THE ASSESSEE THE APPEAL OF THE ASSESSEE IS ALLOWED AND THE MATTER IS RESTORED TO THE FILE OF ASSESSING OFFICER TO DECIDE THE ISSUE A FRESH. NEEDLESS TO ORDER THAT BEFORE DECIDING THE ISSUE THE ASSESSING OFFICER SHA LL GRANT OPPORTUNITY TO THE ASSESSEE AND PASS THE ORDER IN ACCORDANCE WITH LAW. 6. THE ASSESSEE IS ALSO DIRECTED TO PROVIDE ALL THE DE TAILS AND EVIDENCES IN SUPPORT OF ITS CLAIM WITHOUT ANY FURTHER DELAY AND WOULD NOT SEEK THE DATE ITA NO. 2654/MUM/2017- SU NDER TRANSPORT 6 WITHOUT ANY VALID REASONS. IN THE RESULT THE GROUND S OF THE APPEAL RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26.12 .2018. SD/- SD/- N.K. PRADHAN PAWAN SINGH ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATE: 26.12.2018 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR G BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI