PRABHAT R. JHUNJHUNWALA, MUMBAI V. ASST RG 16(1), MUMBAI

ITA 3800/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1760 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 22-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C S SHARMA
• Keywords: Unexplained expenditure; Business income; Opportunity of being heard; Principle of natural justice; Revised return

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY , JM AND SHRI MANOJ KUMAR AGGARWAL , AM ./ I.T.A. NO. 3800 /MUM/2015 ( / ASSESSMENT YEAR: 2007 - 08 ) SHRI PRABHAT R. JHUNJHUNWALA 8, ARAB BUNGLOW, 12 TH KHETWADI LANE, NEAR BALWAS HOTEL, MUMBAI 400 004 / VS. ASTT. COMMISSIONER OF INCOME TAX RANGE 16 (1) MUMBAI ./ ./ PAN/GIR NO. AA CPJ 3606P ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI C. S. SHARMA, DR / DATE OF HEARING : 17/11 /2016 / DATE OF PRONOUNCEMENT : 17 /1 1 /2016 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY THE ASSESSEE FOR A SSESSMENT Y EAR [AY] 2007 - 08 ASSAILS THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 30 [CIT(A )] , MUMBAI DATED 12/03 /2015 2 ITA NO. 3800 /MUM / 2015 PRABHAT R.JHUNJHUNWALA ASSESSMENT YEAR 2007 - 2008 QUA CONFIRMATION OF PENALTY U/S 271(1) (C) OF THE INCOME TAX ACT, 196 1 [ HEREINAFTER THE ACT ] . 2 . FACTS QU A THE DISPUTE ARE THAT THE ASSESSEE IS A RESIDENT INDIVIDUAL ENGAGED IN THE BUSINESS OF CABLE TV OPERATION S. HE F ILED HIS RETURN OF INCOME FOR IMPUGNED AY DECLARING TOTAL INCOME OF RS.14,14,282/ - . THE SURVEY OPERATION S CONDUCTED ON ASSESSEE REVEALED SUPPRESSION OF BUSINESS RECEIPTS AND CONSEQUENTLY, ASSESSEE F ILED REVISED RETURN AT RS.19,14,280/ - AFTER DECLARING A DDITION AL SUM OF RS.5.00 L ACS AS INCOME ARISING OUT OF UNACCOUNTED ACTIVITIES . THE ASSESSEE CLAIMED UNACCOUNTED EXPENDITURE OF RS.24,11,860/ - AGAINST UNACCOUNTED RECEIPTS OF RS.47,03,172/ - WHICH WERE NOT ALLOWED BY AO. THE ASSESSEE CONTESTED THE SAME UNSUCCESSFUL LY BEFORE THE CIT (A). CONSEQUENTLY, PENALTY PROCEEDINGS WERE INITIATED FOR CONCEALMENT OF INCOME AND FOR FILING INACCURATE PARTICULARS OF INCOME AND AN AMOUNT OF RS.9,77,210/ - WAS IMPOSED AS PENALTY BY AO VIDE ORDER DATED 09/03/2012. THE PENALTY WAS CONTE STED BEFORE CIT(A) BUT NONE APPEARED ON BEHALF OF ASSESSEE EXCEPT FOR SEEKING ADJOURNMENTS DESPITE A NUMBER OF OPPORTUNITIES. ACCORDINGLY, CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE EX - PARTE AND CONFIRMED THE PENALTY AFTER PASSING REASONED ORDER. THE PEN ALTY ORDER WAS CONTESTED BY ASSESSEE FOR AY 2006 - 07 AS WELL AS FOR 200 7 - 200 8 AND CIT(A) PASSED COMBINED ORDER DATED 12/03/2015 DISMISSING APPEAL FOR BOTH THE YEARS. AGGRIEVED, THE A SSESSEE IS IN APPEAL BEFORE US QUA AY 2007 - 08 BY WAY OF THIS APPEAL. 3 . NO NE HAS APPEARED BEFORE US DESPITE BEING PROVIDED WITH S EVERAL OPPORTUNITIES AND THEREFORE, WE PROCEED TO DECIDE THE APPEAL ON MERITS ON THE BASIS OF THE MATERIALS AVAILABLE ON RECORD. THE LEARNED DR RELIED UPON THE STAND TAKEN BY THE CIT (A). WE NOTE THAT ONE OF THE GROUNDS RAISED BY THE ASSESSEE IS WITH RESPECT TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND CONTENDED THAT PENALTY HAS BEEN LEVIED WITHOUT PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, EQUITY DEMANDS THAT ASSE SSEE DESERVES ANOTHER OPPORTUNITY AND SUBSTANTIATE HIS CLAIM QUA PENALTY BEFORE CIT(A). THEREFORE, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO THE FILE OF CIT(A) TO PROVIDE ANOTHER OPPORTUNITY TO ASSESSEE TO CONTEST PENALTY. 3 ITA NO. 3800 /MUM / 2015 PRABHAT R.JHUNJHUNWALA ASSESSMENT YEAR 2007 - 2008 THE ASSESSEE IS DIRECTED TO SU BSTANTIATE HIS CLAIM IN THIS REGARD FORTHWITH FAILING WHICH CIT ( A) SHALL BE AT LIBERTY TO DISPOSE - OFF THE SAME ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 4. IN NUTSHELL, THE A PPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17TH NOVEMBER , 201 6 SD/ - SD/ - ( SAKTIJIT DEY ) ( MANOJ KUMAR AGGARWAL ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER M UMBAI ; DATED : 17 .1 1 .201 6 LAXMIKANT DEKA, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 4 ITA NO. 3800 /MUM / 2015 PRABHAT R.JHUNJHUNWALA ASSESSMENT YEAR 2007 - 2008 SR. NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATION SHEETS ARE ATTACHED YES SR.PS/PS 2 DRAFT DICTATED ON 17.11.16 SR.PS/PS 3 DRAFT PLACED BEFORE AUT HOR 18.11.16 SR.PS/PS 4 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 5 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 6 APPROVED DRAFT COMES TO THE SR.PS/PS 18.11.16 SR.PS/PS 7 ORDER PRONOUNCEMENT ON 18.11.16 SR.PS/PS 8 FILE SENT TO THE BENCH CL ERK 18.11.16 SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE AR 11 DATE OF DISPATCH OF ORDER