SANDHYA ENTERPRISES, MUMBAI V. ITO 19(3)(4), MUMBAI

ITA 3116/MUM/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3422 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-01-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 22-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V S JADHAVDR
• Keywords: Principle of natural justice
• Section: 147; 148

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.3116/MUM/2015 ASSESSMENT YEAR: 2005-06 M/S SANDHYA ENTERPRISES, 107, A WING, RIZVI CHAMBER HILL ROAD, BANDRA(W), MUMBAI-400050 / VS. ITO-19(3)(4), CURRENTLY ITO 23(2)(2), MATRU MANDIR MUMBAI-400007 / ASSESSEE / REVENUE P.A. NO. ACHFS3893C $ % & / ASSESSEE BY NONE $ % & / REVENUE BY SHRI V.S. JADHAV-DR / DATE OF HEARING 21/01/2016 & / DATE OF ORDER: 21/01/2016 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 27/03/2015 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, ON THE GROUND FOR CONFIRMING THE ADDITION O F RS.10 LAKH BEING ALLEGED UNPROVED LOANS OF MS. SAND HYA ITA NO.3116/MUM/2015 M/S SANDHYA ENTERPRISES 2 MEHTA AND RS.5 LAKH CLAIMED TO BE RECEIVED FROM M/S SHANKESHWAR ENTERPRISES. 2. DURING HEARING OF THIS APPEAL, NOBODY WAS PRESEN T FOR THE ASSESSEE. IT IS NOTED THAT THIS APPEAL WAS FILED BY THE ASSESSEE ON 26/10/2015, THEREFORE, THE APPEAL W AS ADJOURNED ON VARIOUS DATES. ON 10/11/0015 NOTICE WA S SENT TO THE ASSESSEE FOR 15/12/2015 BUT THE ASSESSE E DID NOT APPEAR. AGAIN NOTICE WAS SENT ON 31/12/2015 FOR TODAY TO WHICH ALSO NOBODY APPEARED AND THE REGISTE RED AD NOTICE SENT AT THE ADDRESS PROVIDED BY THE ASSES SEE IN FORM NO.36, WHICH WAS RETURNED UNCLAIMED BY THE P OSTAL AUTHORITY. THEREFORE, I HAVE NO OPTION BUT TO PROCE ED EX- PARTE, QUA THE ASSESSEE, AND TEND TO DISPOSE OF THI S APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 2.1. ON THE OTHER HAND, THE LD. DR, WHO DEFENDED THE ADDITION BY CONTENDING THAT THE ASSESSEE COULD NOT EXPLAINED THE LOAN AND ALSO DID NOT PRODUCE THE PAR TY. 2.2. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S, IN BRIEF, ARE THAT THE LD. ASSESSING OFFICER RECEIVED INFORMATION OF THE FINANCIAL TRANSACTION BY THE ASS ESSEE DURING THE FINANCIAL YEAR 2005-06, THEREFORE, THE C ASE OF THE ASSESSEE WAS REOPENED U/S 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), AFTER RECORDING THE REA SONS AND TAKING ADMINISTRATIVE APPROVAL. NOTICE U/S 148 WAS ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE RESPONDE D TO ITA NO.3116/MUM/2015 M/S SANDHYA ENTERPRISES 3 THE NOTICE AND FURNISHED THE DETAILS. FROM THE DETA ILS, IT WAS OBSERVED THAT THE ASSESSEE HAD SHOWN LOAN OF RS.27,75,000/- FROM THREE PERSONS/PARTIES (RS.10,00 0/- FROM SANDHYA MEHTA, RS.12,75,000/- FROM SANDEEP PUNAMIYA AND RS.5 LAKH FROM SHANKESHWAR ENTERPRISES ). THE ASSESSEE FILED CONFIRMATION FROM ALL THE THREE PERSONS. THE STAND OF THE REVENUE IS THAT THE CONFIRMATION F ROM SHANKESHWAR ENTERPRISES WAS NOT HAVING PAN, FOR SANDHYA MEHTA, NO DETAILS WERE FILED, THUS, THE ASS ESSEE FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION. HOWEVER, THE CLAIM OF THE ASSESSEE, WHICH IS OOZING OUT FROM THE GROUNDS IS THAT THE NECESSARY DETAILS WERE FILED. I AM OF THE VIEW THAT AS PER MANDATE OF ARTICLE-265 OF CONSTITUTION OF INDIA THAT ONLY DUE TAXES HAS TO BE LEVIED/COLLECTED, PRINCIPLE OF NATURAL JUSTICE THAT NO PERSON SHOULD BE CONDEMNED UNHEARD, I REMAND THIS APPEAL T O THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE TH E CLAIM OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW. THE ASS ESSEE IS ALSO DIRECTED TO PRODUCE THE EVIDENCE TO SUBSTAN TIATE ITS CLAIM AND ALSO THE CONCERNED PERSONS/PARTIES SO THA T THEY CAN BE EXAMINED TO HIS SATISFACTION. THE ASSESSEE M AY BE PROVIDED DUE OPPORTUNITY. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ITA NO.3116/MUM/2015 M/S SANDHYA ENTERPRISES 4 THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 21/01/2016. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 21/01/2016 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI