IRSHAD MOHD. SIDDIQUI, MUMBAI V. ADDL CIT 19(3), MUMBAI

ITA 2860/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1622 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 30-11-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 26-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH I,MUM BAI BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.2860/MUM/2012 FOR (A Y: 2006-07) & ITA NO.2861/MUM/2012 FOR (A Y: 2007-08) MR. IRSHAD MOHD. SIDDIQUE 105/7, BHARAT NAGAR, BANDRA (E) MUMBAI-40005 1. PAN: A QU P S 91 81J VS. ADDITIONAL CIT 19(3), INCOME TAX OFFICE, PIRALMAL CHAMBERS, LALBAUG, MUMBAI 400012 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GIRISH DAVE WITH MS.KADAMBERI DAVE ADVOCATES REVENUE BY : SHRI SHRIKANT NAMDEO (SR. DR) DATE OF HEARING : 30.11.2016 DATE OF PRONOUNCEMENT : 30.11.2016 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH JUDICIAL MEMBER , 1. THESE TWO APPEALS BY ASSESSEE U/S. 253 OF THE INCOM E-TAX ACT ARE DIRECTED AGAINST THE TWO SEPARATE ORDERS OF COMMISSIONER OF INCOME-T AX (APPEALS)-30, DATED 31 ST JANUARY 2012, DISMISSING THE ASSESSEES APPEAL CONT ESTING THE LEVY OF PENALTY U/S. 271D. IN BOTH THE APPEALS, THE ASSESSEE HAS RAISED IDENTICAL GROUNDS OF APPEAL, THUS BOTH THE APPEALS WERE HEARD TOGETHER AND ARE DECIDE D BY COMMON ORDER. FIRST WE ARE TAKING APPEAL FOR ASSESSMENT YEAR (AY) 2006-07 BEING ITA NO.2860/MUM/2012. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: ITA NO. 2860, 2861/M/2012 IRSHAD MOHD SIDDIQUE 2 (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE PENALTY ORDER PASSED UNDER SECTION 271D IS INVALID AND BAD IN LAW . (II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL AND CONFIRMING THE PENALTY OF RS. 6,60,000/-LEVIED U/S. 271D AND THAT TOO WITHOUT GIVING FULL AND PROPER OP PORTUNITY OF BEING HEARD IN THE MATTER. (III) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, LD. CIT(A) ERRED IN DISMISSING THE APPEAL AND CONFIRMING THE PENALTY OF RS. 6,60,000/-LEVIED U/S. 271D AND THAT TOO WITHOUT APPRECIATING FULLY AND PR OPERLY THE FACTS OF THE CASE. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME FOR RELEVANT AY ON 31 ST OCTOBER 2007 DECLARING TOTAL INCOME OF RS. 5,40,40 0/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) ASSESSING THE INCOME OF ASSESS EE AT RS. 4,54,559/-. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE AO OBSERVE D THAT ASSESSEE HAD RECEIVED LOAN OF RS. 6,60,000/- IN CASH FROM SHRI ASAD SIDDI QUI. AS LOAN WAS ISSUED IN CASH THE AO ISSUED SHOW CAUSE NOTICE AS TO WHY PROVISIO N OF SECTION 269SS SHOULD NOT BE INVOKED IN RESPECT OF LOAN TAKEN FROM ASAD SIDDI QUI. THE ASSESSEE CONTESTED THE NOTICE BY FILING REPLY. THE REPLY FILED BY ASSE SSEE WAS NOT ACCEPTED BY AO AND AFTER HEARING THE ASSESSEE, THE PENALTY OF RS. 6,60 ,000/- U/S 271D WAS LEVIED. ON APPEAL BEFORE CIT(A), THE ORDER OF PENALTY WAS UPHE LD. THUS, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE PRESENT APPEAL IS FILE D BEFORE US. 3. WE HAVE HEARD LD. AR FOR ASSESSEE AND LD. DR FOR RE VENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASS ESSEE ARGUED THAT THE ASSESSEE WAS NOT GIVEN FAIR AND PROPER OPPORTUNITY BY LD. CI T(A). IT WAS FURTHER ARGUED THAT DURING THE APPELLATE PROCEEDING, THE ASSESSEE FILED CERTAIN DOCUMENTARY EVIDENCE TO SUBSTANTIATE HIS DEFENSE. HOWEVER, THE LD. CIT(A ) NEITHER CONSIDERED THE EVIDENCE FILED ON RECORD NOR GIVEN OPPORTUNITIES TO MAKE SUBMISSIONS AND REJECTED THE CONTENTION RAISED BEFORE HIM. ON THE OTHER HAND , THE LD. DR FOR THE REVENUE ARGUED THAT THE ASSESSEE WAS GIVEN SUFFICIENT AND F AIR OPPORTUNITY BEFORE LEVYING THE PENALTY. THE LD. CIT(A) AFTER CONSIDERING THE C ONTENTION OF ASSESSEE REJECTED THE EVIDENCE FILED BEFORE HIM. ITA NO. 2860, 2861/M/2012 IRSHAD MOHD SIDDIQUE 3 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND GONE THROUGH THE ORDER OF AUTHORITIES BELOW. WE HAVE NOTICED THAT BEFORE L D COMMISSIONER (APPEALS) THE ASSESSEE HAS FILED CERTAIN SALES BILL ALONG WITH TH E EXTRACT OF SALES REGISTER IN SUPPORT OF HIS CLAIM, CLAIMING THAT THE AMOUNT IN C ASH WAS GIVEN AS AN ADVANCE. THE LD. CIT(A) NOT ADMITTED THE DOCUMENTARY EVIDENC E FILED BEFORE HIM. THE LD CIT(A) VIDE PARA 3.6 OF HIS ORDER REJECTED THE ADMI SSION FRESH EVIDENCE. CONSIDERING THE CONTENTION OF THE LD AR FOR THE ASS ESSEE THAT THE ASSESSEE WAS NOT GIVEN FULL OPPORTUNITY, WE ADMIT THE DOCUMENTARY EV IDENCE FILED BY THE ASSESSEE. AFTER ADMITTING THE EVIDENCES OF ASSESSEE BEFORE US , WE DEEM IT APPROPRIATE TO RESTORE THE CASE TO THE FILE OF LD. CIT(A) TO RE-CO NSIDER THE SAID EVIDENCE PLACED ON RECORD. NEEDLESS TO SAY THAT WHILE CONSIDERING THE EVIDENCE, THE LD. CIT(A) SHALL PROVIDE FAIR AND PROPER OPPORTUNITY TO REPRESENT TH E ASSESSEE. WITH THESE OBSERVATIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATICAL PURPOSE. ITA NO.2861/MUM/2012 FOR (A Y: 2007-08) 5. IN ITA NO.2861/MUM/2012 FOR (A Y: 2007-08) THE ASSE SSEE HAS RAISED THE IDENTICAL GROUNDS OF APPEAL, THE FACTS OF THIS YEAR ARE SIMILAR. AS WE HAVE RESTORE THE APPEAL OF ASSESSEE FOR AY 2006-07 TO THE FILE O F CIT(A) HENCE , THIS APPEAL IS ALSO RESTORE TO THE FILE OF LD CIT(A) WITH SIMILAR DIRECTION. 6. IN THE RESULT, BOTH THE APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN OPEN COURT ON 30 NOVEMBER 2016 . SD/- SD/- (D.KARUNAKARA RAO) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 30/11/2016 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/