ASHOK M. SHAH, MUMBAI V. ITO 24(1)(3), MUMBAI

ITA 3249/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5613 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 04-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Reopening of assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL , HON'BLE ACCOUNTANT MEMBER ITA NO. 3249 / MUM/201 7 ( A. Y : 2009 - 10 ) SHRI ASHOK M. SHAH FLAT NO . 403, 4 TH FLOOR PARSURAM PURIA ENCLAVE HAJI BAPU ROAD, MALAD (E) MUMBAI 400 064 PAN: ASDPS 2793 R V. INCOME TAX OFFICER 24(1)(3) C - 13, 4 TH FLOOR PRATYAKSHAR BHAVAN , BANDRA (E) MUMBAI 400 051 ( ASSESSEE ) (RESPONDENT) ASSESSEE BY : MS DINKLE HARIYA DEPARTMENT BY : SHRI RAJESH KUMAR YADAV DATE OF HEARING : 25 .04.2019 DATE OF PRONOUNCEMENT : 12 .07.2019 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 41, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 3 1.03.2017 FOR THE A.Y. 2009 - 10. 2. ASSESSEE CHALLENGED THE ORDER OF THE LD.CIT(A) IN SUSTAINING THE ADDITION MADE BY THE ASSESSING OFFICER ON PR OTECTIVE BASIS. ASSESSEE ALSO RAISED ADDITIONAL GROUNDS CHALLEN GING THE REASSESSMENT MADE U/S.143(3) R.W.S. 147 OF THE ACT. 2 ITA NO. 3249 / MUM/2017 (A. Y: 2009 - 10) SHRI ASHOK M. SHAH 3. LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET SUBMITS THAT THE ADDITION HAS BEEN MADE SUBSTANTIVELY IN THE ASSESSMENT OF SHRI MANGILAL PUKHRAJ JAIN AND HE HAS ACCEPTED T HE ADDITION AND NO APPEAL HAS BEEN FILED BY HIM. LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT S INCE THE ADDITION WHICH WAS MADE SUBSTANTIVELY IN THE HANDS OF SHRI MANGILAL PUKHRAJ JAIN CAME TO BE ACCEPTED AND SINCE SHRI MANGILAL PUKHRAJ JAIN HAS NOT FILED ANY APPEAL , THE PROTECTIVE ADDITION MADE IN THE HANDS OF THE ASSESSEE I.E. SHRI ASHOK M. SHAH SHOULD BE DELETED. 4. ON A SPECIFIC QUERY BY THE BENCH TO THE LD.DR THAT WHETHER SHRI MANGILAL PUKHRAJ JAIN FILED ANY APPEAL AGAINST THE ADDITION MADE IN HIS HANDS SUBSTANTIVELY , T HE LD.DR REFERRING TO THE ORDER OF THE LD.CIT(A) WHEREIN THE LD.CIT(A) HAS REFERRED TO THE REMAND REPORT OF THE ASSESSING OFFICER WHO COMMUNICATED THAT IT IS NOT KNOWN AS TO WHETHER SHRI MANGILAL PUK HRAJ JAIN FILED ANY APPEAL OR NOT AND NO APPEAL FOLDER COULD BE LOCATED , HE PLACES RELIANCE ON THE LD.CIT(A) ORDER . 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IT IS THE OBSERVATION OF THE LD.CIT(A) THAT THE ASSESSEE BEFORE HIM CONTENDED THAT PROTECTIVE ADDITION WAS MADE IN HIS HANDS AND SUBSTANTIVE ADDITION WAS MADE IN THE ASSESSMENT OF SHRI MANGILAL PUKHRAJ JAIN AND SHRI MANGILAL PUKHRAJ JAIN HAS ACCEPTED THE ASSESSMENT AN D NO APPE AL HAS BEEN FILED AND T HEREFORE SINCE THE ADDITION CAME TO BE 3 ITA NO. 3249 / MUM/2017 (A. Y: 2009 - 10) SHRI ASHOK M. SHAH FINALLY ASSESSED SUBSTANTIVELY IN THE HANDS OF SHRI MANGILAL PUKHRAJ JAIN THERE CANNOT BE ANY PROTECTIVE ADDITION IN THE CASE OF ASSESSEE AS IT AMOUNTS TO DOUBLE ADDITION. TO VERIFY THE CONTENT IONS OF THE ASSESSEE , THE LD.CIT(A) REQUIRED THE ASSESSING OFFICER TO ASCERTAIN THE FINALITY OF THE ASSESSMENT IN THE CASE OF SHRI MANGILAL PUKHRAJ JAIN BY LETTER DATED 18.03.2016 . SUBSEQUENTLY , LD.CIT(A) ISSUED A REMINDER DATED 04.07.2016 TO THE ASSESSIN G OFFICER. WE FIND THAT INCOME TAX OFFICER, WARD NO. 31(2) (3) RECEIVED A LETTER DATED 27 .01.2017 FROM THE OFFICE OF THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) - 42 INFORMING THAT THERE HAS BEEN NO RECORD OF ANY APPEAL FOLDER IN THE CASE OF SHRI MANGILAL PUKHRAJ JAIN . SUBSEQUENTLY THE INCOME TAX OFFICER , WARD NO. 31 (2)(3) WRITTEN A LETTER DATED 01.02.2017 TO INCOME TAX OFFICER , WARD NO. 30(1)(1) WHO IS THE ASSESSING OFFICER OF THE ASSESSEE BEFORE US STATING THAT THERE IS NO APPEAL PENDING WITH LD. CIT(A) - 42, MUMBAI FOR DISPOSAL AS PE R INFORMATION RECEIVED FROM LD. CIT(A ) 42 , MUMBAI . WE NOTICE FROM THE RECORD BEFORE US ON 16.02.2017 THE ASSESSING OFFICER SENT A REPORT TO THE LD.CIT(A) STATING AS UNDER: - TO, THE COMMISSIONER OF INCOME TAX (APPEAL) - 41, MUMBAI, (THROUGH JOINT CIT RANGE 30(1), MUMBAI) SIR, : SUB: REMAND REPORT IN THE CASE OF ASHOK M SHAH FOR A.Y. 2009 - 10 INTIMATE THE FATE OF ASSESSMENT IN THE CASE OF SHRI MANGILAL P JAIN 4 ITA NO. 3249 / MUM/2017 (A. Y: 2009 - 10) SHRI ASHOK M. SHAH REF: - 1. NO CIT (A) - 41/ REMAND REPORT/2016 - 17 DATED 16.01.2017 2. THIS OFFICE LETTER NO ITO 30(1)(1)/ REMAND REPORT/2016 - 17 DATED 25.01.2017 KINDLY REFER TO THE ABOVE IN CONTINUATION TO EARLIER COMMUNICATION, IT IS FURTHER INFORMED THAT A COMMUNICATION HAS BEEN RECEIVED FROM ITO 31(2)(3), MUMBAI VIDE LETTER DATED 01.02.2017. IN THE SAID LETTER IT HAS BEEN INFORMED THAT AS PER THE INFORMATION RECEIVED FROM CIT ( A) - 42, MUMBAI, NO RECORD OF APPEAL FOLDER IN THE CASE OF MANGILAL P JAIN IS AVAILABLE IN THEIR OFFICE (COPY ENCLOSED) SUBMITTED FOR KIND PERUSAL. ISSUE MAY BE DECIDED ON MERITS YOURS FAIT HFULLY, (MANTSH KJJMAR) INCOME - TAX OFFICER - 30(L)(L) MUMB AI. 6. THE LD.CIT(A) IN SPI TE OF RECEIVING THE REMAND REPORT FROM THE ASSESSING OFFICER STATING THAT NO APPEAL FOLDER IS AVAILABLE AND ALSO HAVING SAID THAT IT IS NOT KNOWN AS TO WHETHER SHRI MANGILAL PUKHRAJ JAIN H A S FILED ANY APPEAL OR NOT , THE LD.CIT(A) IS NOT JUSTIFIED IN SUSTAININ G T HE PROTECTIVE ADDITION MADE IN THE HANDS OF THE ASSESSEE , THOUGH SHRI MANGILAL PUKHRAJ JAIN IN H I S STATEMENT MIGHT HAVE STATED THAT HE HAS RECEIVED THE MONIES FROM THE ASSESSEE WHICH WAS DEPOSITED IN BANK ACCOUNT. THE FACT THAT NO APPEAL HAS BEEN FILED BY SHRI MANGILAL PUKHRAJ JAIN AND ACCEPTED THE ADDITION MADE IN HIS ASSESSMENT CANNOT BE IGNORED AND LOST SIGHT OF. 7. ON THE MATERIAL AVAILABLE ON RECORD BEFORE US AND IN THE ABSENCE OF ANY EVIDENCES FILED BY THE DEPARTMENT TO SHOW THAT SHRI MANGILAL PUKHR AJ JAIN HAS AGITAT ED THE SUBSTANTIVE ADDITION MADE IN HIS HANDS BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) , WE CONCLUDE THAT T HE SHRI 5 ITA NO. 3249 / MUM/2017 (A. Y: 2009 - 10) SHRI ASHOK M. SHAH MANGILAL PUKHRAJ JAIN HAS NOT FILED ANY APPEAL BY HIM AND THE ADDITION MADE SUBSTANTIVELY IN HIS HANDS STOOD FINALLY ACCEPTED BY HIM. THEREFORE, THE PROTECTIVE ADDITION MADE IN THE HANDS OF THE ASSESSEE HAS NO LEGS TO STAND AND WILL NOT SURVIVE AS IT BECOME DOUBLE ADDITION WHICH IS NOT PERMISSIBLE IN LAW . THUS , WE DIRECT THE ASSESSING OFFICER TO DELETE THE PROTECTIVE ADDITION MADE IN THE HANDS OF THE ASSESSEE. WE MAKE IT CLEAR THAT THE DEPARTMENT IS AT LIBERTY TO REVIVE THE ASSESSMENT OF THE ASSESSEE , IF THE ASSESSING OFFICER IS ABLE TO PROVE THAT THE SUBSTANTI VE ADDITION MADE IN THE CASE OF SHRI MANGILAL PUKHRAJ JAIN HAS BEEN AGITATED IN APPEAL PROCEEDINGS IN HIS CASE. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE CHALLENGING THE REOPENING OF ASSESSMENT U/S. 147 OF THE ACT IS ADMITTED BEING A PURE LEGAL GROUND. HOWEVER, THIS GROUND IS LEFT OPEN AND THE ASSESSEE MAY AGITATE THIS GROUND AT APPROPRIATE TIME. WITH THESE OBSERVATION S , WE ALL OW THE APPEAL OF THE ASSESSEE. 8. IN THE RESULT, APP EAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 12 TH JULY 2019 SD/ - SD/ - ( MANOJ KUMAR AGGARWAL ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 12 / 0 7 / 2019 GIRIDHAR , S R. PS 6 ITA NO. 3249 / MUM/2017 (A. Y: 2009 - 10) SHRI ASHOK M. SHAH COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM