ADIL MOHSIN MAGAR, PUNE V. ITO WARD 41(1)(1), MUMBAI (PREVIOUSLY ITO WARD 26(1)(1) MUMBAI), MUMBAI

ITA 2858/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5769 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-11-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 13-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.G.MENON.
• Keywords: Reopening of assessment; Principle of natural justice
• Section: 147; 144; 69C; 142(1); 133(6); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 2858/Mum/2023 (A.Y: 2012-13) Adil Mohsin Magar, Flat No. 3, 2 nd Floor, Prime Vihar Society, Opp slunke Vihar Society, Pune-411040. Maharashtra. Vs. ITO-Ward 41(1)(1), Kautilya Bhawan, G Block, BKC Bandra (E), Mumbai-400051. PAN/GIR No. : AGKPM9307J Appellant .. Respondent Assessee by : Ms. Mitali Parekh.AR Revenue by : Shri S.G.Menon. Sr.Dr Date of Hearing 06.11.2023 Date of Pronouncement 08.11.2023 आदेश / O R D E R PER PAVAN KUMAR GADALE JM: The assessee has filed the appeal against the order of the National Faceless Appeal Centre (NFAC), Delhi / CIT(A) passed u/sec 147 r.w.s 144 U/sec 250 of the Ac.The assessee has raised the following grounds of appeal: 1. The Ld. CIT(A) erred in law and in facts in confirming the additions made by the Ld. A.O vide his order dated 19.06.2023 which is unjustified and incorrect ITA No. 2858/Mum/2023 Adil Mohsin Magar, Mumbai. - 2 - 2. The LdCIT(A) erred in law in not providing reasonable opportunity of hearing to the appellant which is in gross violation of principles of natural justice 3. The LdCIT(A) erred in law and in facts in not appreciating that the reopening of assessment was is bad in law. 4. The Ld. CIT(A) has erred in law and in facts in confirming the addition of alleged cash deposit of 13,52,000/- u/s 69C of the Act. 5. The Ld. CIT(A) has erred in law and in facts in confirming the addition on account of contractual receipt of 1,50,000/- u/s 69C of the Act. 6. The appellant craves leave to add, to alter, amend and / or delete in all the foregoing of appeal. 2. The brief facts of the case are that, the Assessing Officer (A.O) as per ITS details found that the assessee has deposited cash of Rs.13,52,000/- in the bank account and also received contractual receipts of Rs. 1,50,000/- and all aggregating to Rs. 15,02,000/- in the F.Y 2011-12. Since the assessee has not filed the return of income, the AO has reason to believe that the income has escaped assessment and issued notice u/sec148 of the Act. Subsequently, notice u/sec 142(1) of the Act was also issued. Since there was no compliance by the assessee. The AO has issued notice u/s 133(6) of the Act on the ITA No. 2858/Mum/2023 Adil Mohsin Magar, Mumbai. - 3 - Indus Bank Ltd for bank account statement and was received. The AO on perusal of the facts and the information in the bank statement has issued show cause notice on the assessee, even for show cause notice there was no compliance, Finally the AO has invoked the provisions of the best judgment assessment and made addition of impugned credits in the bank account and assessed the total income of Rs.15,02,000/- and passed the order u/s 144 r.w.s 147 of the Act dated 14.11.2019. 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 submissions of the assessee for adjournment and subsequently there was no compliance by the assessee. 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 proceedings.The assessee sought time for collection of some ITA No. 2858/Mum/2023 Adil Mohsin Magar, Mumbai. - 4 - documents and the non appearance before the appellate authority is not an wanton act. Further the assessee has a good case on merits and shall substantiate with the material evidences 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 after seeking adjournment by the assessee in spite of providing adequate opportunity of hearing. Therefore, the CIT(A) was of the opinion that the assessee is not interested in prosecuting the appeal and decided the appeal based on the information available on record and dismissed the appeal. The Ld.AR submissions are that the assessee was in the process of collecting the information and the non appearance before the appellate authority is not an wanton act. 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 ITA No. 2858/Mum/2023 Adil Mohsin Magar, Mumbai. - 5 - 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 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 08.11.2023. Sd/- (PAVAN KUMAR GADALE) JUDICIAL MEMBER Mumbai, Dated 08.11.2023 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// ITA No. 2858/Mum/2023 Adil Mohsin Magar, Mumbai. - 6 - 1. ( Asst. Registrar) ITAT, Mumbai