VIVEK M. MANGLA, THANE V. DCIT CIR 3, THANE

ITA 3814/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7181 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 03-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Document seized; Opportunity of being heard; Principle of natural justice; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI N.K. PRADHAN , HON'BLE ACCOUNTANT MEMBER ITA NO . 3814 /MUM/2016 (A.Y : 2008 - 09 ) VIVEK M. MANGLA 35, DEEPAK SOCIETY, DR. MOOSE ROAD, OPP. NAUKAVIHAR, TALAOPALI, THANE (W ), PIN NO.: 400 602 PAN NO : AAXPM 1973 F V . DCIT, CIRCLE - 3, ROOM NO . 2, B' WING, 6 TH FLOOR , I.T. ASHAR PARK, ROAD NO. 16Z, WAGLE INDUSTRIAL ESTATE, THANE (W), PIN NO: 400 604 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUBODH RATNAPARKHI DEPARTMENT BY : MS. POOJA SWAROOP DATE OF HEARING : 0 4 . 04.2018 DATE OF PRONOUNCEMENT : 15 .06 .2018 O R D E R PER C.N. PRASAD 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST ORDER OF THE LEARNED COMMI SSIONER OF INCOME TAX (APPEALS) - 2 , MUMBAI DATED 21.03.2016 FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS IN RESPECT OF UPHOLDING THE ADDITION OF . 22,00,11 0 / - ON ACCOUN T OF ALLEGED CASH PAYMENT TO SHRI MAYUR SUCHAK FOR ACQUISITION OF WAREHOUSE RELYI NG ON CERTAIN SEIZED DOCUMENTS. 2 ITA NO.3814/MUM/2016 (A.Y: 2008 - 09) VIVEK M. MANGLA 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT , COPY OF THE ALLEGED SEIZED PAPER WAS NEVER PROVIDED TO THE ASSESSEE IN SPITE OF SPECIFIC REQUEST DURING THE ASSESSMENT PROCEEDINGS. IT IS SUBMITTED THAT THE ALLEGED PAYMENT OF CASH IN THE YEAR UNDER APPEAL WAS NOT CORROBORATED BY ANY INDEPENDENT EVIDENCE. IT IS ALSO SUBMITTED THAT THE REASONS RECORDED REVEAL THE ALLEGED PAY MENT TO BE MADE TO M/S. MAUS CONSULTING PVT. LTD., WHEREAS THE ASSESSEE HAD NO BUSINESS TRANSACTION WITH THE SAID COMPANY. IT IS FURTHER SUBMITTED THAT THE ALLEGED CASH PAYMENT COULD NOT HAVE BEEN MADE IN FINANCIAL YEAR 2007 - 08 WHEN THE LD.CIT(A) HAS STAT ED IN THE ORDER THAT FIRST PAYMENT WAS MADE BY THE ASSESSEE ON 24.06.2008 WHICH DATE IS ALSO SUPPOSEDLY MENTIONED ON THE SEIZED PAPER AND THEREFORE THE ADDITION IN THE YEAR UNDER APPEAL I.E. 2008 - 09 WAS NOT JUSTIFIED. IT IS FURTHER SUBMITTED THAT THE REMAND REPORT BY THE ASSESSING OFFICER WAS RECEIVED AFTER COMPLETION OF HEARING BY THE LD.CIT(A) AND WITHOUT GRANTING A COPY OF THE SAME TO THE ASSESSEE , T HE LD.CIT(A) PASSED THE ORDER TH ERE BY DENYING T HE ASSESSE E SUITABLE OPPORTUNITY TO REBUT THE ADVERSE INFERENCES RESULTING IN BREACH OF PRINCIPLES OF EQUALITY , FAIR PLAY AND NATURAL JUSTICE. THEREFORE, IT IS SUBMITTED THAT THE ISSUE MAY BE REMITTED TO THE ASSESSING OFFICER FOR EXAMINING AFRESH AFTER PR OVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE INCLUDING THE SEIZED MATERIAL IN THE INTEREST OF JUSTICE. 3 ITA NO.3814/MUM/2016 (A.Y: 2008 - 09) VIVEK M. MANGLA 4. LD. DR HAS NO SERIOUS OBJECTIONS IN EXAMINING THE ISSUE ONCE AGAIN BY THE LD . ASSESSING OFFICER , WITH REFERENCE TO THE SEIZED MATERIALS AND FOR DECIDING THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER HEARING THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON HEARING BOTH THE PARTIES, W E ARE OF THE CONSIDERED VIEW THAT ASSESSING OFFICER SHALL EXAMINE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER PROVIDING COPIES OF SEIZED MATERIALS AND DECIDE THE ISSUE , AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE ASSESSEE MAY FURNISH ITS SUBMISSIONS AND CONTENTIONS BEFORE THE ASSESSING OFFICE R AND TAKING INTO ALL THE SUBMISSIONS AND EVIDENCES THE ASSESSING OFFICER SHALL DECIDE THE ISSUE IN ACCORDANCE WITH LAW. THUS, THIS MATTER IS RESTORED TO THE FILE ASSESSING OFFICER FOR DECIDING AFRESH IN THE L IGHT OF OUR ABOVE OBSERVATIONS. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 15 TH JUNE , 2018 . SD/ - SD/ - ( N. K. PRADHAN ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 15 / 06 / 2018 GIRIDHAR , S R. PS 4 ITA NO.3814/MUM/2016 (A.Y: 2008 - 09) VIVEK M. MANGLA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 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