MONISH SOMNATH BAMI, MUMBAI V. ITO 25(3)(1), MUMBAI

ITA 3168/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100542 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR SONIDR
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.3168/MUM/2013 ASSESSMENT YEAR: 2008-09 SHRI MONISH SOMNATH BAMI, 1002, VASANT ARADHANA, MAHAVIR NAGAR, KANDIVALI (W), MUMBAI-400067 / VS. INCOME TAX OFFICER-25(3)(1), MUMBAI ( '#$ /ASSESSEE) ( / REVENUE) P.A. NO . AJFPB8127M '#$ / ASSESSEE BY SHRI PRAKASH JOTWANI / REVENUE BY SHRI VIJAY KUMAR SONI-DR % & ' ( / DATE OF HEARING : 13/08/2015 ' ( / DATE OF ORDER: 28/08/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 21/03/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, ON THE GROUNDS AS STATED IN THE GROUNDS OF APPEAL, BRO ADLY WITH RESPECT TO ADDITIONS MADE ON ACCOUNT OF LONG TERM C APITAL GAINS, AMOUNT RECEIVED FROM LIC, SHORT TERM CAPITAL GAINS, MONISH SOMNATH BAMI ITA NO.3168/MUM/2013 2 UNEXPLAINED CASH CREDIT, ACCOUNTING CHARGES AND DIS ALLOWING INTEREST ON UNSECURED LOANS PAID TO VARIOUS PARTIES . 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL FOR THE ASSESSEE, SHRI PRAKASH JOTWANI, CONTENDED THAT PROPER OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS). ON THE OTHER HAND, THE LD. DR, SHRI VIJAY KUMAR SONI, DEFE NDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL DECLARED INC OME OF RS.4,20,400/- IS HIS RETURN FILED ON 31 ST MARCH, 2008 ANNEXED WITH COPY OF STATEMENT OF INCOME ALONG WITH CAPITAL ACCOUNT AND BALANCE SHEET AND DETAILED HEAD-WISE ACCOUNTING DETAILS. THE ASSESSEE SOLD PUNE SHOP ON 07 TH SEPTEMBER ,2007 FOR A CONSIDERATION OF RS.5,50,000 AND OUT OF THE SALE PROCEEDS PURCHASE A FLATS NUMBER 701, B -WING, BUILDING NO.1, CLOVER GROW, BORIVALI, FOR A TOTAL C ONSIDERATION OF RS.12,50,000/-. HOWEVER, AS PER THE REVENUE, THE ASSESSEE COULD NOT PRODUCE THE DOCUMENT. THE STAND OF THE AS SESSEE IS THAT ASSESSEE INVESTED THE CAPITAL GAINS WITHIN THE SPECIFIED PERIOD. VARIOUS ADDITIONS/DISALLOWANCES WERE MADE BY THE ASSESSING OFFICER ON OTHER COUNTS ALSO. THE ASSESSE E CARRIED THE MATTER IN APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), WHEREIN, AS PER THE REVENUE, THE ASS ESSEE COULD NOT APPEAR ON THE APPOINTED DATES. AS PER TH E IMPUGNED ORDER, THE ASSESSEE COULD NOT APPEAR ON MONISH SOMNATH BAMI ITA NO.3168/MUM/2013 3 01/07/2011, 05/02/2013 AND 20/03/2013, THUS, THE AP PEAL ORDER WAS PASSED EX-PARTY. WITHOUT GOING INTO MUCH DELIBERATION AND THE EXPLANATION ADDUCED BY THE ASS ESSEE, WE ARE OF THE VIEW, THAT NO PERSON SHOULD BE CONDEMNED UNHEARD, THEREFORE, KEEPING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE, WE REMAND THIS FILE TO THE FILE OF THE LD. CIT(A) TO DISPOSE OFF THE APPEAL OF THE ASSESSEE AFRESH ON ME RIT. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH F URTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM. AT THE SAME TIME, THE ASSESSEE IS ALSO DIRECTED NOT TO BE CASUAL IN HIS APPROACH AND TO APPEAR BEFORE THE OFFICE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WITHIN ONE MON TH FROM THE RECEIPT OF THIS ORDER. THE LD. COMMISSION ER OF INCOME TAX (APPEALS) IS FREE TO DISPOSE OFF THE APP EAL OF THE ASSESSEE ON A MUTUALLY AGREED DATE. IF THE ASSESSE E STILL CHOOSES NOT TO APPEAR ON THE DATE, THE LD. FIRST AP PELLATE AUTHORITY IS FREE TO DISPOSE OFF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 13/08/2015. SD/ - (ASHWANI TANEJA) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; ) DATED : 28/08/2015 F{X~{T? P.S/. . . MONISH SOMNATH BAMI ITA NO.3168/MUM/2013 4 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 % 1 ( + ) / THE CIT, MUMBAI. 4. 0 0 % 1 / CIT(A)- , MUMBAI 5. 34 .' , 0 +( ' 5 , % & / DR, ITAT, MUMBAI 6. 6# 7& / GUARD FILE. / BY ORDER, /3+ . //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI