MR. PRAMOD KUMAR DALMIA (THROUGH LEGAL HEIR MR. KAPIL DALMIA), MUMBAI V. ITO 20(2)(3), MUMBAI

ITA 3417/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1819 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 21-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Unexplained cash credit
• Section: 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE SHRI SAKTIJIT DEY (JM) ITA NO. 3417 /MUM/2019 ASSESSMENT Y EAR: 2006 - 07 MR. PRAMOD KUMAR DALMIA, (THROUGH SON AND LEGAL HEIR MR. KAPIL DALMIA), C - 402/403, FALCON CASTLE CHS LTD., TEJ APARTMENT, TULSI PIPE ROAD, SENAPATI BAPAT MARG, OPP. INDIA BULLS, LOWER PAREL, MUMBAI - 400013 PAN: AFUPD2164D VS. INCOME TAX OFFICER - 20(2)(3), ROOM NO. 411, 4 TH FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI - 400012 (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SMITA VERMA (DR) DATE OF HEARING: 15/06 /20 21 DATE OF PRONOUNCEMENT: 25 / 06 /202 1 O R D E R PER SAKTIJIT DEY , JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 31.05.201 8 OF L EARNED COMMISS IONER OF INCOME T AX (APPEALS) 36 , MUMBAI FOR THE ASSESSMENT YEAR 2006 - 07 . 2. AT THE TIME OF CALL, NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, I PROCEED TO DISPOSE OF THE APPEAL EX - PARTE , QUA THE ASSESSEE , AFTER HEARING THE LEAR NED DEPARTMENTAL REPRESENTATIVE AND BASED ON THE MATERIALS ON RECORD. 3. BRIEFLY THE FACTS ARE, THE APPELLANT HAS FILED THE PRESENT APPEAL IN HIS CAPACITY AS THE LEGAL HEIR OF THE DECEASED ASSESSEE LATE KAPIL DALMIA. AS COULD BE SEEN FROM THE FACTS ON RE CORD , ON THE BASIS OF AIR INFORMATION, T HE ASSESSING 2 ITA NO. 3417 / MUM/2019 ASSESSMENT YEAR: 2006 - 07 OFFICER (AO) FOUND THAT THE DECEASED ASSESSEE HAD DEPOSITED CASH OF RS. 20,02,000/ - IN SAVING S BANK ACCOUNT. HOWEVER, THE ASSESSEE HAD NOT FILED ANY RETURN OF INCOME FOR THE SAID ASSESSMENT YEAR. THUS, B ASED ON SUCH INFORMATION, THE AO REOPEN ED THE ASSESSMENT UNDER SECTION 147 OF THE ACT. IN COURSE OF THE ASSESSMENT PROCEEDINGS, THE LEGAL HEIR OF THE ASSESSEE APPEARED AND FURNISHED LETTER DATED 18.03.2014 SEEKING MORE TIME TO REPLY TO THE QUERIES RAISED . SUBSEQUENTLY, THE LEGAL HEIR OF THE ASSESSEE FILED A DETAILED REPLY STATING THAT THE DEPOSIT S IN THE BANK ACCOUNT WERE OUT OF THE AMOUNT RECEIVED FROM SALE OF LAND. THE ASSESSING OFFICER, HOWEVER , DID NOT ACCEPT THE CLAIM IN ABSENCE OF SALE DEED , 7/12 EXTR ACTS FOR THE LAND SOLD AND OTHER LAND RECORDS AS WELL AS AGRICULTURE INCOME EARNED DURING THE YEAR, CONFIRMATION FROM THE BUYERS , PROOF OF STAMP DUTY PAID ETC. THUS, HE TREATED THE CASH DEPOSIT OF RS. 7.5 LAC S AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AND ADDED BACK TO THE INCOME OF THE ASSESSEE. AGAINST THE ASSESSMENT ORDER SO PASSED , THOUGH , AN APPEAL WAS FILED BEFORE LEARNED COMMISSIONER (APPEALS), H OWEVER, THE APPEAL WAS DISMISSED BY SUSTAINING THE ADDITION MADE. 4. I HAVE CO NSIDERED THE S UBMISSIONS LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIALS ON RECORD. ON PERUSAL OF THE ASSESSMENT ORDER AS WEL L AS THE ORDER PASSED BY LEARNED COMMISSIONER (APPEALS), I HAVE NOTICED VARIOUS INCONSISTENCIES. THOUGH, IN THE OPENING PARAGRAPH O F THE ASSESSMENT ORDE R THE AO HAS OBSERVED THAT THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME FOR THE ASSESSMENT YEAR 2006 - 07, H OWEVER, IN PARAGRAPH 5 HE HAS CONTRA DI CTED HIMSELF BY STATING THAT THE RETURN OF INCOME FILED BY THE ASSESSEE ORIGINAL LY SHOWI NG INCOME OF RS. 74,400/ - IS TREATED AS RETURN IN RESPONSE TO NOTICE ISSUED UNDER SECTION 148 OF THE ACT. IT IS FURTHER OBSERVED , IN COURSE OF ASSESSMENT PROCEEDINGS THE LEGAL HEIR OF THE ASSESSEE HAS FURNISHED A DETAILED REPLY EXPLAINING THE DEPOSITS IN T HE BANK ACCOUNT. IT IS ANOTHER MATTER THE AO H AS NOT ACCEPTED THE EXPLANATION. BE THAT AS IT MAY, THE APPEAL FILED BEFORE LEARNED COMMISSIONER (APPEALS) CHALLENGING THE ADDITION MADE WAS DISPOSED OF EX - PARTE BY CONFIRMING THE ADDITION MADE . A PE RUSAL OF TH E ORDER PASSED BY 3 ITA NO. 3417 / MUM/2019 ASSESSMENT YEAR: 2006 - 07 LEARNED FIRST APPELLATE AUTHORITY REVEALS THAT THOUGH IN THE OPENING PARAGRAPH HE HAS OBSERVED THAT IN RESPONSE TO HEARING NOTICE ISSUED THE AUTHORISED REPRESE NTATIVE MADE WRITTEN SUBMISSION AND FILED RELEVANT DETAILS, H OWEVER, IN PARAGRA PH 3 AND 4 HE HAS CONTRA DI CTED HIMSELF WHILE OBSERVING THAT IN SPITE OF SEVERAL OPPORTUNITIES BEING GIVEN , NEITHER THE ASSESSEE APPEARED BEFORE HIM NOR FILED ANY SUBMISSIONS OR DETAILS. THUS, THERE ARE FACTUAL INCONSISTENCIES BOTH IN THE ASSESSMENT ORDER A S WELL A S IN THE ORDER PASSED BY LEARNED COMMISSIONER (APPEALS). FURTHER, IT IS A FACT THAT THE DECEASED ASSESSEE IS REPRESENTED THROUGH HIS LEGAL HEIR. THEREFORE, THERE COULD HAVE BEEN SOME COMMUNICATION GAP BETWEEN DEPARTMENTAL AUTHORITIES AND THE LEGAL HEIR REPRESENTING THE ASSESSEE , WHICH MIGHT HAVE RESULTED IN N ON FURNISHING OF DOCUMENTARY EVIDENCES TO EXPLAIN THE DEPOSITS IN THE BANK ACCOUNT. CONSIDERING ALL THESE FACTORS, I AM OF THE VIEW THAT THE ASSESSEE DESERVES AN OPPORTUNITY TO REPRESENT HIS CAS E PROPERLY. ACCORDINGLY, I S ET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH ADJUDICATION. LEARNED COMM ISSIONER (APPEALS) MUST DISPOSE OF THE APPEAL ON MERITS AFTER DUE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. I ALSO DIRECT THE APPELLANT TO RESPOND TO THE HEARING NOTICE TO BE ISSUED BY LEARNED COMMISSIONER (APPEALS) AND REPRESENT HIS CASE IN A PROPER AND EFFECTIVE MANNER. GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEA L IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JUNE , 2021 . SD/ - ( SAKTIJIT DEY ) JUDICIAL MEMBER MUMBAI ; DATED: 25 / 06 /202 1 ALINDRA, PS 4 ITA NO. 3417 / MUM/2019 ASSESSMENT YEAR: 2006 - 07 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI