RAVINDER B. WALIA, MUMBAI V. ITO 16(1)(5), MUMBAI

ITA 3791/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2776 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 24-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR CHAITANYA ANJARIA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM A ND SHRI RAVISH SOOD, JM I.T.A. NO. 3791/MUM/2017 ( ASSESSMENT YEAR: 2008 - 09 ) SHRI RAVINDER B. WALIA 802, 8 TH FLOOR, OCEAN VIEW, UNION PARK, KHAR (W), MUMBAI - 400 052 V S. ITO - 16(1)(5) ROOM NO. 439/467, 4 TH FLOOR, AAYKAR BHAVAN, M. K. ROAD, MUMBAI - 400 007 PAN/GIR NO. AAJPW 9207 C ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI KIRAN MEHTA RESPONDENT BY : DR. CHAITANYA ANJARIA DATE OF HEARING : 23.10.2018 DATE OF PRONOUNCEMENT : 05.11 .2018 O R D E R PER S HAMIM YAHYA, A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE LEAR N ED COMMISSIONER OF INCOME TAX (APPEALS) - 4, MUMBAI (LD.CIT(A) FOR SHORT) DATED 06.02.2017 AND PERTAINS TO T HE A SSESSMENT YEAR (A.Y.) 2008 - 09. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRMING PENALTY OF RS.7,06,500 LEVIED U/S. 271(1)(C) BY THE LEARNED A.O. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN PASSING THE ORDER EX - PARTE THE APPELLANT MORE SO, AS ONLY ONE OPPORTUNITY OF HEARING WAS GIVEN. 3. IT IS RESPECTFULLY SUBMITTED THAT THE IMPUGNED ORDER OF LEARNED CIT(A) IS VIOLATIVE OF PRI NCIPLES OF NATURAL JUSTICE AND FAIR PLAY AND THE SAME MAY KINDLY BE SET ASIDE. 2 ITA NO. 3791/MUM/2017 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS SUBMITTED THAT ON MERITS, NO SUCH PENALTY FOR CONCEALMENT WAS JUSTIFIED. 3. IN THIS CASE BY AN EX PARTE ORDER THE LD. CIT (A) HAS CONFIRMED THE PENALTY LEVIED OF RS.7,06,500/ - BY HIS SHORT ORDER AS UNDER: 3.2 I HAVE CONSIDERED THE FINDING OF THE ASSESSING OFFICER, CAREFULLY. I FIND THAT DURING THE COURSE OF SURVEY PROCEEDING CARRIED OUT AT THE PREMISES OF THE APPELLANT ON 18 .06.2008, HE HAS ADMITTED UNDISCLOSED INCOME OF RS.25,00,000 / - . HOWEVER, WHILE FILING RETURN OF INCOME, NO SUCH INCOME WAS INCLUDED, HENCE ADDITION SO MADE OF RS.25,00,000/ - WAS SUSTAINED BY MY LD. PREDECESSOR CIT{A)'S ORDER DATED 28.03.2013. SIMILARLY, RS 25,000 / - APPEARING AT PG.NO.58 OF ANNEXURE - 7 WAS NOT EXPLAINED HENCE, ADDITION WAS SUSTAINED. OBVIOUSLY, THERE WAS NO PROPER EXPLANATION OF SUCH UNDISCLOSED INCOME EITHER BEFORE THE ASSESSING OFFICER OR IN APPELLATE PROCEEDING HENCE, IT IS FOUND BEYOND DO UBT THAT THE APPELLANT HAS FURNISHED INACCURATE PARTICULARS OF INCOME WHILE FILING RETURN OF INCOME AND HENCE HAS CONCEALED THE TAXABLE INCOME. THEREFORE, THIS IS MOST SUITABLE CASE DESERVES LEVY OF PENALTY U/S.271 (1)(C) OF THE INCOME - TAX ACT, 1961. THE L D. ASSESSING OFFICER HAS RIGHTLY LEVIED THE PENALTY HENCE, LEVY OF PENALTY OF RS.7,06,500 / - U/S.271(1)(C) IS SUSTAINED. 4. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THIS ORDER HAS BEE N PASSED BY THE LD. CIT(A) WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD. HE SUBMITTED THAT IN THIS CASE SUBSEQUENTLY AN ORDER U/S. 154 OF THE ACT HAS BEEN PASSED ON 13.09.2013 WHEREIN THE COMPUTATION OF THE INCOME HAS BEEN REVISED. HE FURTHER SUBMITTED THAT IN VIEW OF THE REVISION OF THE INCOME, THE BASIS FOR LEVY OF THE PENALTY WILL NOT SURVIVE. HE SUBMITTED THAT THESE ASPECTS COULD NOT BE CANVASSED BEFORE THE LD. CIT(A) AS PROPER OPPORTUNITY WAS NOT GIVEN. HE SUBMITTED THAT AN OPPORTUNITY MAY KINDLY B E GIVEN SO THAT THE ASSESSEE CAN MAKE NECESSARY SUBMISSIONS BEFORE THE LD. CIT(A) WHICH ARE CRUCIAL FOR PROPER ADJUDICATION OF THE ISSUE. 3 ITA NO. 3791/MUM/2017 6. UPON HEARING BOTH THE COUNSEL AND PERUSING BOTH THE RECORDS, WE FIND THAT THE SUB MISSION OF THE LD. COUNSEL THAT THE ASSESSING OFFICER HAS MA DE SUBSEQUENT ORDER U/S. 154 OF THE ACT WHICH HAS NOT BEEN CONSIDERED IN THE PENALTY PROCEEDING IS GERMANE AND DESERVES TO BE CONSIDERED. HENCE, IN THE INTEREST OF JUSTICE, WE REMIT THE ISSUE FOR CONSIDERATION BY THE LD. C IT(A) DEN OVA. THE LD. CIT(A) SHALL ADJUDICATE THE ISSUE AFRESH AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05.11.2018 SD/ - SD/ - ( RAVISH SOOD ) (S HAMIM YAHYA) J UDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI ; DATED : 05.11.2018 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. TH E RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT . REGISTRAR) ITAT, MUMBAI