PARESH S. SANGHVI (HUF), MUMBAI V. ITO WD 25(3)(3), MUMBAI

ITA 2874/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2642 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C W ANGOLKAR
• Keywords: Non compliance; Assessment record
• Section: 144; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , , BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI RAMIT KOCHAR , AM ./ ITA NO. 2874/MUM/2014 ( / ASSESSMENT YEAR: 2009 - 10 ) PARESH S. SANGHVI (HUF) /APPELLA NT B - 307, THAKUR COMPLEX HIGHWAY PARK E - 3 KANDIVALI (E), MUMBAI 400101 / VS. INCOME TAX OFFICER - 25(3)(3) / RESPONDENT BANDRA KURLA COMPLEX BANDRA (E), MUMBAI 400051 ./ PAN - AAIHP2161F / APPELLANT BY: NONE / RESPONDENT BY : SHRI C.W. ANGOLKAR / DATE OF HEARING : 20.10. 2015 / DATE OF PRONOUNCEMENT : 30 .10.2015 / O R D E R PER SHAILENDRA K. YADAV, JM THIS APPEAL BY THE ASSESSEE IS FILED AGAINST THE ORDER DATED 18.02.2014 PASSED BY CIT(A) - 35, MUMBAI AND IS PERTAINS TO A.Y. 2009 - 10 ON F OLLOWING GROUNDS WERE: - 1. CIT (A) 35 ERRED IN NOT ALLOWING TIME OR GRANTING ANY ADJOURNMENT AND PASSED THE DISMISSAL ORDER FOR NON ATTEN DANCE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD A.O. WITHOUT ANY JUSTIFICATION ERRED IN MAKING AN ADDITION OF 2 ITA NO. 2874/MUM/2014 PARESH S. SANGHVI (HUF) RS. 8,72,618/ - ERRONEOUSLY ESTIMATING THE NET PROFIT @ 1% SALES TURNOVER. IN FACT DEALER IS NOT COVERED UNDER HAWALA LIST BUT ERRONEOUSLY AND SIMILARITY OF NAME TREATED AS HAWALA DEALER. 3. O N FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD A.O., ERRED IN MAKING THE DISALLOWANCE OF INTEREST OF RS.20,052/ - ; BEING UNSECURED ADVANCES GIVEN FOR NON BUSINESS PURPOSES. 4. WITHOUT PR EJUDICE TO THE ABOVE, LD. A.O. OUGHT TO HAVE DISALLOWED THE INTEREST AS PER PROVISION OF RULE 8D R.W.S.14A OF THE ACT. 5. THE LD. A.O., WITHOUT ANY JUSTIFICATION AND ON MERE SUSPICION, ERRED IN REJECTING APPELLANT'S AUDITED BOOKS OF ACCOUNTS U/S 145(3) AND FURTHER ERRED IN PASSING THE ASSESSMENT U/S 144 OF THE ACT. 6. THE LD. A.O. BEFORE ESTIMATING THE INCOME OUGHT TO HAVE CARRIED AN INDEPENDENT ENQUIRY OF THE PURCHASE PARTIES WHOSE COMPLETE DETAILS ARE FILED ON ASSESSMENT RECORD. 7. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, LD. A.O. ERRED IN A DD ING BROKERAGE PAYABLE AT RS.58,555/ - INVOKING PROVISION OF SEC.41(1) BUT IGNORING FACTS ON THE RECORD. 8. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, LD. A.O. ERRED IN ADDITING RS.44,1 39/ - TO THE INCOM E BEING DEDUCTION UNDER CHAPTER VIA. 9. RECTIFICATION IS PENDING WITH A.O. FOR MORE THAN ONE YEAR, WHICH NEEDS TO RECTIFY TO REDUCE INCOME & TAX BURDEN. 2. FROM THE ISSUES RAISED IN GROUNDS OF APPEAL WE FIND THAT ASSESSEE IS MAINLY AGGRIEVED BY THE EXPARTE ORDER OF THE CIT(A). WE FIND THAT CIT(A) HAS DISPOSED OF THE APPEAL BY OBSERVING AS UNDER: - 4. DURING THE APPELLATE PROCEEDINGS, THE CASE WAS FIXED FOR HEARING 20 - 09 - 2013, 17 - 10 - 2013 & 10 - 01 - 2014. HOWEVER, NONE APPEARED TO EXPLAIN THE CASE AND SUBSTANTIATE THE CLAIM IN RESPECT OF GROUNDS OF APPEAL. FURTHER, TILL DATE, DESPITE GIVING SEVERAL OPPORTUNITIES, THE APPELLANT HAS NOT FILED ANY WRITTEN SUBMISSION AGAINST THE ADDITIONS MADE BY T HE AO IN THE ASSESSMENT ORDER. AT THE APPEAL STAGE ALSO NO ONE HAS APPEARED 711 3 ITA NO. 2874/MUM/2014 PARESH S. SANGHVI (HUF) TO SUBMIT THE REASONS FOR NON COMPLIANCE AND THEREFORE IN THE LIGHT OF THE FACTS OF THE CASE THE APPEAL IS DISMISSED. 2.1 THE ABOVE OPERATIVE PART OF THE ORDER OF CIT(A) REVEALS T HAT HE HAS DISMISSED THE APPEAL OF ASSESSEE BY WAY OF EXPARTE ORDER. IT IS SETTLED POSITION THAT THE CIT(A) COULD PASS EXPARTE ORDER WHEN THE ASSESSEE IS NOT COOPERATING BEFORE HIM BUT IT IS MANDATORY ON THE PART OF CIT(A) TO PASS A REASONED SPEAKING ORDER WHICH IS MISSING IN THIS CASE. THEREFORE IN THE INTEREST OF JUSTICE WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO HIM WITH THE DIRECTION TO DECIDE THE SAME AS PER FACTS AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. SINC E WE RESTORED THE MATTER TO THE CIT(A) ON THE PRELIMINARY ISSUE, WE REFRAIN FROM MAKING ANY COMMENTS ON OTHER ISSUES. 3. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH OCTOBER, 2015. 30.10.2015 SD/ - SD/ - ( RAMIT KOCHAR ) ( SHAILENDRA KUMAR YADAV ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI , DATED 30 TH OCTOBER, 2015 4 ITA NO. 2874/MUM/2014 PARESH S. SANGHVI (HUF) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) - 35 , MUMBAI 4. / THE CIT - 25 , MUMBAI 5. , , / DR, C BENCH ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER //TRUE COPY// /ASSTT. REGISTRAR) , /ITAT, MUMBAI