CHIRAG J GARODIA, MUMBAI V. ITO 25(3)(1), MUMBAI

ITA 3048/MUM/2011

• Counselvise Citation: 304819914 RSA 2011
• Duration Of Justice: 1 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 18-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO. 3048/MUM/2011 ASSESSMENT YEAR 2007-08 CHIRAG J GARODIA, 19/A/303, GIRNAR, LOKHANDWALA 1 ST CROSS LANE, ANDHERI (WEST) MUMBAI 400 053 PAN: AAFPK 1161K VS. THE INCOME TAX OFFICER 25(3)(1), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI ABANI KANTA NAYAK, DR DATE OF HEARING : 23-04-2012 DATE OF PRONOUNCEMENT : 02-05-2012 ORDER PER RAJENDRA, A.M. FOLLOWING ARE THE GROUNDS OF APPEAL IN THE APPEAL F ILED BY THE ASSESSEE AGAINST THE ORDER DT. 03-02-2011 OF CIT(A) -35, MUMBAI. I. THE LEARNED COMMISSIONER (APPEALS) WOULD HAVE ISSU ED NOTICES AS MENTIONED BY HIM IN THE APPELLATE ORDER BUT NONE OF THOSE WERE RECEIVED BY APPELLANT HIMSELF, AS HE DOES NOT STAY IN THE PREMISES WHERE NOTICES WERE SENT. THE SAME WOULD H AVE BEEN RECEIVED BY HIS OLD PARENTS WHO WOULD HAVE FORGOTTE N TO COMMUNICATE TO APPELLANT DUE TO OLD AGE. THUS, APP ELLATE ORDER BY LEARNED COMMISSIONER(APPEALS) DATED 01-02-2011 W AS PASSED WITHOUT HAVING A SINGLE HEARING OF APPELLANT . IN VIEW OF THIS, FRESH HEARING SHOULD BE GRANTED BEFORE LEARNE D COMMISSIONER (APPEALS). ITA NO. 3048/MUM/2011 CHIRAG J GARODIA, 2 II. WITHOUT PREJUDICE TO ABOVE: I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN NO T QUASHING ORDER PASSED BY LEARNED ASSESSING OFFICER, AS DETAILS REQUIRED BY LEARNED ASSESSING OFFICER COULD HAVE BEEN SUBMITTED BEFORE 31-12-09 BUT HE PASSED ORDER ON 24-12-09. II. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN SUSTAINING ADDITION ` 2,18,000/- TO APPELLANTS INCOME AS UNPROVED LOAN ALTHOUGH LOAN IS RECEIVED BY CHEQUE A ND CREDIT IS REFLECTED IN BANK STATEMENTS FILED WITH L EARNED AO AND LOAN CONFIRMATION IS AVAILABLE. III. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN SUSTAINING ARBITRARY ADDITION OF ` 3,68,621/- BY LEARNED ASSESSING OFFICER TO APPELLANTS INCOME BY DISALLOW ING 5% OF TOTAL PURCHASES AS NON-GENUINE, ALTHOUGH ALL PUR CHASES ARE GENUINE, PAID BY CHEQUES, TAX PAID INVOICES ARE AVAILABLE AND PURCHASES DULY REFLECTED IN AUDITED P ROFIT & LOSS ACCOUNT. IV. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN SUSTAINING ADDITION OF ` 11,250/- MADE BY LEARNED ASSESSING OFFICER TO APPELLANTS INCOME U/S. 40(A)( IA) ON THE GROUND THAT TDS DEDUCTION DETAILS ON INTEREST PAYME NT IS NOT AVAILABLE. TDS WAS NOT DEDUCTIBLE AS LENDER HA D FURNISHED FORM NO.15G. V. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN SUSTAINING ADDITION OF ` 25,729/- MADE BY THE LEARNED ASSESSING OFFICER BY ARBITRARILY DISALLOWING 15% OF TELEPHONE EXPENSES, SUNDRY EXPENSES AND SALES PROMO TION EXPENSES. 2. MAIN GRIEVANCE OF THE ASSESSEE IS THAT HIS MATTE R HAS BEEN DECIDED BY THE CIT(A) WITHOUT HEARING HIM. THOUGH, IT IS NOT KNOWN AS WHETHER HE HAD INFORMED THE CIT(A) ABOUT HIS NEW ADDRESS OR NOT, YET FROM THE RECORD IT APPEARS THAT CIT(A) HAS DECI DED THE APPEAL IN SINGLE HEARING AND ON THAT DAY NOBODY NEITHER THE ASSESSEE NOR HIS AUTHORISED REPRESENTATIVE (AR) WAS PRESENT TO ARGUE THE CASE. IT IS POSSIBLE THAT BETWEEN 01-02-2010 (DATE OF INSTITUTI ON OF APPEAL) AND ITA NO. 3048/MUM/2011 CHIRAG J GARODIA, 3 03-02-2011 (DATE OF ORDER) CIT(A) MIGHT HAVE ISSUED NOTICES OF HEARING, BUT FROM THE RECORDS SUCH FACT DOES NOT EM ERGE. IN THESE CIRCUMSTANCES IN THE INTERESTS OF JUSTICE, WE REMIT BACK THE FILE TO THE OFFICE OF THE CIT(A) TO PASS ORDER AFTER HEARING TH E ASSESSEE. ASSESSEE IS DIRECTED TO CONTACT THE OFFICE OF THE CIT(A) AND FURNISH HIS NEW ADDRESS WHERE NOTICE OF HEARING CAN BE DISPATCHED. 3. APPEAL STANDS DISPOSED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND MAY,2012. SD/- SD/- (N.V. VASUDEVAN) (RAJENDR A) JUDICIAL MEMBER AC COUNTANT MEMBER MUMBAI, DATE 2 ND MAY 2012 TNMM COPY TO: 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI