RANI KUSUM RAI, MUMBAI V. ITO 18(2)91), MUMBAI

ITA 2747/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1933 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-11-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 22-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: S J JAIN
• Keywords: Opportunity of being heard
• Section: 143(3); 142(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ./ I .T.A. NO. 2747 /MUM/201 4 ( / ASSESSMENT YEAR : 20 0 6 - 07 ) MRS. RANI KUSUM RAI, 87, RANADE ROAD, BHATIA BLDG, 2 ND FLOOR, DADAR, MUMBAI - 400028 / VS. INCOME TAX OFFICER - 18 (2)(1), PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 400012 ./ PAN : ADMPRO143C / APPELLANT BY SHRI S J JAIN / REVENUE BY SHRI B S BIST / DATE OF HEARING : 8 .11. 2016 / DATE OF PRONOUNCEMENT : 8 .11. 2016 / O R D E R PER RAJESH KUMAR , A M THE APPEAL FILED BY THE ASSESS EE IS DIRECTED AGAINST THE ORDER DATED 18.2.2014 , PASSED BY THE CIT(A) - 29 , MUMBAI, FOR THE ASSESSMENT YEAR 20 0 6 - 07 IN THE PENALTY ORDER PASSED BY THE AO U/S 271(1)(C) OF THE ACT . 2. THE SOLE GROUND RAISED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF PE NALTY LEVIED BY THE AO UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. 1961. 2 ITA NO. 2747 / MUM/ 201 4 3. BRIEF FACTS OF THE CASE A RE THAT THE ASSESSEE FILED HER RETURN OF INCOME ON 8.3.2007 DECLARING TOTAL INCOME AT RS. 1,20,000/ - FOR THE ASSESSMENT YEAR UNDER CONSIDERATION . SUB SEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY CASS AND STATUTORY NOTICES U/S 143(2) AND 142(1) OF THE INCOME TAX ACT, 1961 WERE ISSUED AND SERVED UPON THE ASSESSEE. THEREAFTER, THE AO COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT AT AN AMOUNT O F RS.35,42 ,876/ - BY MAKING ADDITION OF RS.17,40,000/ - ON ACCOUNT OF CASH DEPOSITS AND CHEQUE DEPOSITS OF RS.17,02,876/ - TOTALING TO RS.34,42,876/ - . THE AO ALSO INITIATED PENALTY PROCEEDINGS U/S 271 (1)(C) OF THE ACT FOR CONCEALMENT PARTICULARS OF INCOME. 4. AT T HE TIME OF HEARING, THE LEARNED COUNSEL SUBMITTED BEFORE US THAT THE QUANTUM ON WHICH THE AO HAS IMPOSED PENALTY U/S 271(1)(C ) OF THE ACT HAS BEEN CHALLENGED BEFORE THE MUMBAI BENCH OF THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 26.4.2016 PASSED IN I TA NO. 8474/MUM/2010 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION HAS RESTORED THE APPEAL TO THE FILE OF AO FOR VERIFICATION OF FACTS AND FRAMING FRESH ASSESSMENT. THEREFORE, THE PENALTY ORDER PASSED BY THE AO HAS NO LEGS TO STAND. THE LD. AR PRAYED THAT I N THE CHANGED CIRCUMSTANCES, THE PENALTY IMPOSED BY THE AO AND CONFIRMED BY LD.CIT(A) BE DELETED AND APPEAL FILED BY THE ASSESSEE BE ALLOWED. 5 . THE LD. DR DID NOT OBJECT TO THE PLEA PUT FORTH BY THE LD.AR. 3 ITA NO. 2747 / MUM/ 201 4 6 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD INCLUDING THE ORDERS PASSED BY THE LOWER AUTHORITIES AND THE ORDER OF THE TRIBUNAL IN QUANTUM APPEAL OF THE ASSESSEE. WE FIND THAT IN THE QUANTUM APPEAL, THE TRIBUNAL HAS NOTED THAT THE AO HAS MADE ADDITION OF RS.34,4 2,876/ - WITHOUT VERIFYING THE FACTS ON RECORD AND EVEN WITHOUT CALLING THE PARTIES IN QUESTION FOR CROSS - VERIFICATION INCLUDING GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO ARGUE HER CASE AND T HEREFORE, THE QUANTUM APPEAL WAS RESTORED TO THE F ILE OF THE AO FOR CROSS - VERIFICATION AND PROVIDING FAIR AND REASONABLE OPPORTUNITY TO THE ASSESSEE TO SUBMIT H ER CONTENTION. THE RELEVANT FINDING OF THE TRIBUNAL ARE AS UNDER : 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIA L PLACED BEFORE US. WE FIND FROM THE RECORDS THAT THE ASSESSEE HAS PRODUCED THE BANK ACCOUNTS AND OTHER DOCUMENTS WHICH PROVE THE FACT THAT THE ASSESSEE HAD ADVANCED MONEY BY ACCOUNT PAYEE CHEQUES TO VARIOUS PARTIES IN EARLIER YEARS AND ALSO PROVED THAT THE ASSESSEE WAS HAVING FDRS WHICH WERE MATURED AND CREDITED IN THE BANK OF THE ASSESSEE. UNDER THE PRESENT CIRCUMSTANCES AND FACTS, WE ARE OF THE CONSIDERED OPINION THAT ENDS OF JUSTICE WOULD BE MET IF THE ASSESSEE IS GIVEN ONE MORE OPPORTUNITY BEFORE T HE AO TO PROVE HER CASE. THEREFORE, IN VIEW OF THE ABOVE DISCUSSIONS, WE SET ASIDE THE ORDERS OF LD.CIT(A) ON ALL THE ISSUES AND RESTORE THE SAME BACK TO THE AO FOR BOTH THE YEARS FOR ADJUDICATION AFRESH AFTER CONSIDERING AND VERIFICATION OF VARIOUS EVIDEN CES AS MAY BE FILED BY ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO - OPERATE WITH THE AO FOR SPEEDY DISPOSAL OF THE APPEALS. IN VIEW OF THE ABOVE ORDER OF THE COORDINATE BENCH RESTORING THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION, THE PENAL TY ORDER PASSED BY THE AO DID NOT 4 ITA NO. 2747 / MUM/ 201 4 HAVE LEGS TO STAND, THEREFORE, WE SET ASIDE THE ORDER OF LD.CIT(A) AND DI RECT THE AO TO DELETE PENALTY WITH THE LIBERTY TO INITIATE THE SAID PROCEEDINGS AFRESH IF SO WARRANTED WHILE MAKING THE FRESH ASSESSMENT IN THE S ET ASIDE PROCEEDINGS . 7 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICALLY PURPOSES. ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 8 .11. 2016. SD SD ( MAHAVIR SINGH ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 8 .11 . 2016 SR.PS:SRL: / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI