VIDYASAGAR B WAHI (HUF), MUMBAI V. ACIT 20(3), MUMBAI

ITA 3428/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5083 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 11-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Keywords: Principle of natural justice
• Section: 143(3); 37(1); 68

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL F BENCH MUMB AI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO. 3428/MUM/2017 (ASSESSMENT YEAR 2011-12 ) M/S VIDYASAGAR B. WAHI (HUF) 100/104, KAZI SYED STREET, GORADIA HOUSE, MUMBAI-400003. PAN: AACHV6206K VS. ACIT - 20(3) ROOM NO. 506, 5 TH FLOOR, PIRAMAL CHAMBER, LALBAUG, PAREL. MUMBAI. APPELLANT RESPONDE NT APPELLANT BY : SHRI SATISH MODI (AR) RESPONDENT BY : SHRI RAJEEV GUBGOTRA (DR) DATE OF HEARING : 09.10.2018 DATE OF PRONOUNCEMEN T : 15.10.2018 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME -TAX ACT IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-37, MUMBAI DATED 18 .10.2016 FOR ASSESSMENT YEAR 2011-12. THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL: YOUR APPELLANT CRAVES LEAVE TO RAISE FOLLOWING GROUNDS OF APPEAL WITHOUT PREJUDICE TO ONE ANOTHER & THEREFORE, YOUR APPELLANT PRAYS THAT THEY MAY BE DECIDED INDEPENDENTLY. 1. THE LD. CIT (A) FOR THE REASONS BEST KNOWN TO HI M HAS PASSED HIS ORDER DISMISSING THE APPEAL FILED BY THE APPELLANT ARBITR ARILY, CAPRICIOUSLY AND BAD IN LAW AND ON FACTS OF THE CASE TO THE EXTENT OF MAKIN G ADDITION WITHOUT GIVING OPPORTUNITY OF HEARING BEFORE LD. CIT(A) DURING APP ELLATE PROCEEDINGS ON 04/10/2016. 2. A) ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW AND IN THE INTEREST OF NATURAL JUSTICE THE LD. CIT (A) HAS ERRED IN STATIN G ON PARA 2.5 OF HIS ORDER THAT THERE WAS NO ATTENDANCE ON HEARING FIXED ON 04-10-2 016 AGAINST THIS ALLEGATION, ITA NO. 3428 MUM 2017-M/S VIDYASAGAR B. WAHI (HUF) 2 THE APPELLANT STATES THAT LETTER DATED 27-09-2016 W AS WRITTEN BY APPELLANT FOR ADJOURNMENT BY SPEED POST. B) SINCE NO OPPORTUNITY WAS GIVEN FOR APPEARANCE BE FORE CIT (A) ON 04102016 QUESTION OF FILING ANY SUBMISSION TO SUP PORT CLAIM MADE IN THE GROUNDS OF APPEAL DOES NOT ARISES. C) THE LEARNED CIT (A) HAS FURTHER ERRED IN CONFIRM ING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER AND THEREFORE GROUNDS OF A PPEAL RAISED BY THE APPELLANT FOR HEARING OF APPEAL ARE DISL1ISSED. ALTERNATELY THE LEARNED CIT (A) SHOULD HAVE APPRECI ATED FOLLOWING GROUNDS OF APPEAL FILED BY THE APPELLANT BEFORE DISMISSING THE APPELLATE ORDER DATED 18/10/2016. 3. DISALLOWANCE OF EXPENSES U/S 37(1) OF THE ACT, OF R S.6,93,761/ ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW AN D IN THE INTEREST OF NATURAL JUSTICE THE LD. CIT(A) ERRED IN DISALLOWANCE OF ABO VE EXPENSES ALTHOUGH THE APPELLANT HAS HIMSELF DISALLOWED OF RS.11, 11,315/- OUT OF EXPENSES OF RS.18,05,076/-. 4. INCOME FROM HOUSE PROPERTY OF RS.31,75,200/ ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW AN D IN THE INTEREST OF NATURAL JUSTICE THE LD. CIT(A) HAS ERRED IN NOT EXAMINING WRITING S TATEMENT EVIDENCE PRODUCED DURING THE ASSESSMENT PROCEEDINGS . 5. DISALLOWANCE U/S 68 OF RS.7,22,946/- UNEXPLAINED CR EDIT ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW AN D IN THE INTEREST OF NATURAL JUSTICE THE LD. CIT(A) ERRED IN MAKING ABOVE DISALLOWANCE A LTHOUGH COMPLETE DETAILS STATED IN THE GROUNDS OF APPEAL. 6. LIABILITY WRITTEN BACK U/S 41(1) OF RS.1,54,898/- ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW AN D IN THE INTEREST OF NATURAL JUSTICE THE LD. CIT(A) HAS ERRED MAKING ABOVE ADDITIONS ALT HOUGH THE APPELLANT STATED ALL DETAILS OF SUNDRY CREDITORS WI TH AGE, ADDRESS AND CONFIRMATION OF ALL DISPUTED CREDITORS STATED IN TH E GROUNDS OF APPEAL. 7. DISALLOWANCE OF INTEREST U/S 36(1)(III) OF THE ACT, OF RS. 8274/- ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW AN D IN THE INTEREST OF NATURAL JUSTICE THE LD. CIT (A) ERRED IN MAKING ABOVE DISALLOWANCE ALTHOUGH ALL LOAN CONFIRMATION AND WITH INTEREST PAID PLUS TDS C HALLANS WERE STATED IN THE GROUNDS OF APPEAL. 8. DIFFERENCE IN AIR AND ITR OF RS.7,86,796/- ITA NO. 3428 MUM 2017-M/S VIDYASAGAR B. WAHI (HUF) 3 ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW AN D IN THE INTEREST OF NATURAL JUSTICE THE LD. CIT (A) ERRED IN MAKING ABOVE ADDITION ALTH OUGH DETAILS OF INTEREST ON SECURITIES FROM HDFC BANK LTD. WERE CRE DITED AND STATED IN THE GROUNDS OF APPEAL. 9. PRAYERS (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE APPELLANT SUBMITS THAT THE ORDER PASSED BY CIT(A) IS BAD IN LAW AS THE SAID OR DER IS PASSED AGAINST THE PRINCIPLES OF NATURAL JUSTICE; (II) THE APPELLATE ORDER AS MADE ON ASSUMPTION BASI S IS NOT BASED ON FACTS AND IS BAD IN LAW. THE IMPUGNED ADDITIVES MAY PLEASED BE D ELETED. (III) THE APPELLANT FURTHER CRAVES LEAVE TO ADD, AL TER OR AMEND HIS GROUNDS OF APPEAL DURING THE COURSE OF APPEAL. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A HINDU UNDIVIDED FAMILY (HUF) AND PROPRIETOR OF M/S SAI TRADER, FILED ITS R ETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ON 26.03.2013 DECLARING TOT AL INCOME AT RS. 57,60,095/-. THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT ON 14 .03.2014. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R BESIDES OTHER ADDITIONS/ DISALLWNCE MADE THE DISALLOWANCE OF EXPE NSES UNDER SECTION 37(1) OF RS. 6,93,761/-, ADDITION OF INCOME FROM HO USE PROPERTY OF RS. 31,75,200/-, DISALLOWANCE UNDER SECTION 68 OF RS. 7 ,22,946/- DISALLOWED RS. 1,54,898/- UNDER SECTION 41(1), DISALLOWANCE UNDER SECTION 36(1)(III) OF RS. 8,274/- AND ADDITION ON ACCOUNT OF DIFFERENCE OF AI R OF RS. 7,86,796/-. ON APPEAL BEFORE THE LD. CIT(A), ALL THE ACTION OF ASS ESSING OFFICER WAS CONFIRMED. THUS, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORIZED REPR ESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) F OR THE REVENUE AND ITA NO. 3428 MUM 2017-M/S VIDYASAGAR B. WAHI (HUF) 4 PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OU TSET OF HEARING, THE LD. AR OF THE ASSESSEE SUBMITS THAT THE LD. CIT(A) PASSED THE ORDER EX-PARTE AND WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESS EE. THE LD. AR OF THE ASSESSEE SUBMITS THAT DURING THE FIRST APPELLATE ST AGE, THE ASSESSEE MADE WRITTEN REQUEST FOR ADJOURNMENT OF THE APPEAL FOR V ALID REASONS, HOWEVER, THE LD. CIT(A) PASSED THE ORDER IN DEFIANCE OF PRINCIPL E OF NATURAL JUSTICE AND PASSED EX-PARTY ORDER. THE LD. AR OF THE ASSESSEE P RAYED FOR RESTORING THE APPEAL TO THE FILE OF LD. CIT(A) FOR DECISION ON ME RIT. 4. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF LOWER AUTHORITIES. THE LD. DR VEHEMENTLY SUBMITS THAT THE ASSESSEE FAILED TO PROVIDE NECESSARY INFORMATION TO THE ASSESSING OFFI CER AS WELL AS NOT ATTENDED THE DATE OF HEARING BEFORE THE LD. CIT(A). THEREFORE, THE ASSESSEE IS NOT ENTITLED FOR ANY RELIEF. 5. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND HAVE GONE THROUGH THE ORDER OF LD. CIT(A). WE HAVE NOTED THAT THE LD. CIT(A) PASSED THE ORDER EX-PARTE AND CONFIRMED ALL THE ADDITION M ADE BY ASSESSING OFFICER. THOUGH, THE LD AR FOR THE ASSESSEE SUBMITT ED THAT THE ASSESSEE SOUGHT ADJOURNMENT OF APPEAL FOR VALID REASONS, WE INSTEAD OF GOING INTO CONTROVERSY AS TO THE ASSESSEE SOUGHT ADJOURNMENT F OR VALID REASONS OR NOT ATTENDED THE APPEAL PROCEEDING WITHOUT ANY VALID RE ASONS, FACTS REMAINS THE SAME THAT LD. CIT(A) PASSED THE EX-PARTE ORDER. THE REFORE, KEEPING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE THE APPEAL OF THE ASSESSEE IS RESTORED BACK TO ITA NO. 3428 MUM 2017-M/S VIDYASAGAR B. WAHI (HUF) 5 THE FILE OF LD. CIT(A) WITH THE DIRECTIONS TO DECID E ALL THE GROUNDS OF APPEAL ON MERIT. IT IS MADE CLEAR THAT THE ASSESSEE SHALL FULLY CO-OPERATE AND PROVIDE ALL NECESSARY DETAILS AND EVIDENCE TO THE LD CIT(A) AND WOULD NOT SEEK ADJOURNMENT WITHOUT ANY VALID REASONS. NEEDLESS TO ORDER THAT THE LD. CIT(A) SHALL PASS THE ORDER IN ACCORDANCE WITH LAW AFTER GIVING FAIR OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15/10/2018. SD/- SD/- G.S. PANNU PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE:15.10.2018 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR J BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI