SHIVAM IMPEX, MUMBAI V. DCIT CIR 2, THANE

ITA 2813/MUM/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62704 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 16-07-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 11-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B JAYA KUMAR
• Assessee Lawyers: SAMEER G DALAL
• Keywords: Gift; Opportunity of being heard; Principle of natural justice
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI I.P. BANSAL (JUDICIAL MEMBER) AND SHRI N.K. BILLAIYA (ACCOUNTANT MEMBER ) ITA NO.2813/MUM/2011 ASSESSMENT YEAR-2004-05 M/S. SHIVAM IMPEX, 603, KRISHNA HEIGHTS, C-WING, UPPER GOVIND NAGAR, MALAD (E), MUMBAI-400 097 PAN-AANFS 1671C VS. THE DCIT, CIRCLE-2, VARDAAN, 9 TH FLOOR, M.I.D.C. WAGLE INDL. ESTATE, THANE (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SAMEER G. DALAL RESPONDENT BY: SHRI B. JAYA KUMAR DATE OF HEARING :16.07.2012 DATE OF PRONOUNCEMENT: 18.7.12 O R D E R PER N.K. BILLAIYA (AM): THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)- II DT.30.11.2010 FOR ASSESSMENT YEAR 2004-05. 2. THE ASSESSEE HAS RAISED FOUR GROUND OF APPEAL WI TH SUB GROUNDS. THE SUM AND SUBSTANCE OF THE GRIEVANCE SHOWN BY THE ASS ESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION MADE BY TH E AO IN BREACH OF THE PRINCIPLES OF NATURAL JUSTICE, IN AS MUCH AS NO SUF FICIENT, PROPER AND EFFECTIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT DU RING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FOUND THAT THE PARTNERS OF THE FIRM HAS INTRODUCED FRESH CAPITAL DURING THE YEAR U NDER CONSIDERATION. WHEN ASKED BY THE AO TO EXPLAIN THE SOURCE OF THIS INTRO DUCTION OF MONEY IN THE ITA NO. 2813/M/11 2 CAPITAL ACCOUNT, THE ASSESSEE EXPLAINED THAT THE SA ME HAD RECEIVED GIFTS. IN SUPPORT OF ITS CLAIM, THE ASSESSEE FILED GIFT DEEDS FROM FOUR PERSONS ALONGWITH THEIR STATEMENT OF BANK ACCOUNT. THE AO SUMMONED AL L THE PARTIES U/S. 131 OF THE ACT. HOWEVER, ONLY TWO PERSONS APPEARED BEF ORE THE AO WHOSE STATEMENTS WERE RECORDED. AFTER EXAMINING THE PERS ONS ON OATH, THE AO WAS NOT CONVINCED BY THEIR CAPACITY, THEREFORE ADDED TH E AMOUNT OF CAPITAL INTRODUCED BY THE PARTNER TO THE TUNE OF RS. 7,20,0 00/-. FURTHER THE AO ALSO MADE AN ADDITION OF RS. 2,00,000/- ON ACCOUNT OF D ISCREPANCY IN THE CLOSING STOCK. 4. BEFORE THE LD. CIT(A) THE ASSESSEE PLEADED THAT IT HAS NOT BEEN GIVEN THE COPY OF THE STATEMENT RECORDED BY THE AO, THER EFORE THE ASSESSEE IS NOT IN A POSITION TO ATTEND THE APPEAL PROCEEDINGS. HO WEVER, ON NON ATTENDANCE ON THE PART OF THE ASSESSEE, THE LD. CIT(A) WENT ON TO DISMISS THE APPEAL EX PARTE RELYING UPON THE JUDGEMENT OF HONBLE M.P. HI GH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS CWT 223 ITR 480, HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF NEW DIWAN OIL MIL LS VS CIT (2008) 296 ITR 495 AND HONBLE SUPREME COURT IN THE CASE OF CIT V S B.N. BHATTACHARGEE AND ANOTHER 118 ITR 461. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE ARGU ED THAT INSPITE OF REPETITIVE REQUEST MADE BY THE ASSESSEE, THE AO DID NOT CARE TO PROVIDE THE COPY OF THE STATEMENT RECORDED IN THE COURSE OF ASS ESSMENT PROCEEDINGS. THE LD. COUNSEL FURTHER POINTED OUT TO THE ADJOURNM ENT APPLICATIONS MADE BEFORE THE LD. CIT(A) WHEREIN ON EACH OCCASION, TH E ASSESSEE HAD REQUESTED FOR ADJOURNMENT BECAUSE IT HAS NOT RECEIVED THE CO PY OF THE STATEMENT RECORDED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 6. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUP PORTED THE ORDERS OF LOWER AUTHORITES. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE ORDERS OF LOWER AUTHORITIES AND ALSO THE PAPER BOOK FILED BY THE ASSESSEE. WE FIND THAT ITA NO. 2813/M/11 3 ON 24.1.2007, 20.12.2007, 3.4.2008, 29.10.2010, THE ASSESSEE HAS REPETITIVELY REQUESTED THE AO TO SUPPLY THE COPY OF THE STATEMENT RECORDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WE AL SO FIND FROM THE ADJOURNMENT APPLICATION FILED BY THE ASSESSEE ON VA RIOUS DATES I.E. 10.1.2008, 30.1.2008, 13.2.2008, 26.3.2008, 3.4.2008, 11.4.200 8, 23.4.2008, THE ASSESSEE HAS REQUESTED FOR THE ADJOURNMENT OF APPEA L ON THE GROUND THAT IT HAS NOT BEEN GIVEN THE COPIES OF STATEMENT RECORDED DURING THE ASSESSMENT PROCEEDINGS. CONSIDERING THESE FACTS AND ALSO THE ORDER OF THE LD. CIT(A), WE FIND THAT THERE IS A DENIAL OF NATURAL JUSTICE ON T HE PART OF THE LOWER AUTHORITIES. WE THEREFORE DEEM IT FIT TO RESTORE T HIS ISSUE BACK TO THE FILE OF LD. CIT(A) IN THE INTEREST OF JUSTICE. WE DIRECT T HE LD. CIT(A) TO DECIDE THE APPEAL ON MERIT AFRESH AFTER GIVING REASONABLE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 18 TH DAY OF JULY, 2012 SD/- SD/- (I.P. BANSAL) (N.K. BILLAIYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 18 TH JULY, 2012 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR I BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI