Appeal Details
Counselvise Citation
[2016] 132 COUNSELVISE.COM (IT) 3647 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 5 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
20-05-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
E
Next Hearing Date
26-02-2015
Assessment Year
2008-2009
Appeal Filed On
15-05-2013
Judgement Text
E BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 3861 /MUM/2013 ( / ASSESSMENT YEAR : 2008-09) SH. SUNIL JHAMANDAS BABANI SHOP NO. 14, MEERA CHS LIMITED, NEW LINK ROAD NEAR MEGA MALL OSHIWARA, ANDHERI(WEST) MUMBAI-400 053 / V. I.T.O. 25(3)(4), 3 RD FLOOR,C-10,BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI 400 051 ./ PAN : AACPB2227Q ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI HARIDAS BHATT REVENUE BY : SHRI RITESH MISHRA,DR / DATE OF HEARING : 03-03-2016 / DATE OF PRONOUNCEMENT : 20-05-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 3861/MUM/2013, IS DIRECTED AGAINST THE APPELLATE ORDER DATED 22-02-20 13 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 35, MUMBAI (H EREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2008-09, THE APPE LLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSMENT ORDE R DATED 24.12.2010 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTE R CALLED THE AO) U/S 143(3) OF THE INCOME TAX ACT,1961 (HEREINAFTER CALL ED THE ACT). 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS DECLARED INCOME FROM BUSINESS, INCOME FROM CAPITAL GAINS AND INCOME FROM OTHER SOURCES IN THE RETURN OF INCOME FILED WITH THE REVENUE ON 24.0 9.2008 WHICH WAS REVISED ITA 3861/MUM/2013 2 ON 20.04.2009. THE CASE WAS SELECTED FOR SCRUTINY A ND NOTICES U/S 143(2) OF THE ACT WAS ISSUED BY THE AO FOR FRAMING ASSESSMENT U/S 143(3) READ WITH SECTION 143(2) OF THE ACT. THE ASSESSEE WAS ASKED BY THE AO TO SUBMIT THE DETA ILS I.E. LOAN CONFIRMATIONS, COPY OF RETURN OF INCOME AND BANK PA SSBOOK OF THE LENDERS WITH RESPECT TO FRESH UNSECURED LOANS RAISED TO PRO VE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE LOANS RAISE D BY THE ASSESSEE DURING THE IMPUGNED ASSESSMENT YEAR. THE ASSESSEE SUBMITTED LOAN CONFIRMATIONS, WHILE WI TH RESPECT TO COPY OF RETURN OF INCOME AND BANK PASSBOOK, THE ASSESSEE SU BMITTED TO THE AO TO ISSUE SUMMONS DIRECTLY TO THE LOAN LENDERS TO SEEK THE REQUISITE DETAILS/DOCUMENTS. THE AO ISSUED NOTICES U/S 133(6) OF THE ACT TO THE LENDERS FROM WHOM THE FRESH LOANS WERE RAISED BY THE ASSESSEE DURING THE IMPUGNED ASSESSMENT YEAR BUT THE NOTICES WITH RESPECT TO TWO PARTIES NAMELY SH. ASHOK A RAJPUT(RS.1.50 LACS) AND SH. ASHWIN MULCHANDANI(RS. 4.5 LACS) WERE RETURNED BY THE POSTAL AUTHORITIES. WITH RESPECT TO MR. SHAH SURESHCHANDRA VELCHAND, TH E ASSESSEE TOOK LOAN OF RS.2.00 LACS BUT NO DETAILS I.E. COPY OF THE RETURN , BANK PASSBOOK ETC WAS FURNISHED BY THE LENDERS IN RESPONSE TO NOTICE U/S 133(6) OF THE ACT . WITH RESPECT TO SH PRAKASHCHANDRA CHAMPALAL (RS. 2. 00 LACS) , MR TARABHAI KOTUMAL (RS. 2.00 LACS) AND SH SHARAD P. THAKKER(RS . 1.0 LACS) THE ASSESSEE TOOK FRESH LOAN DURING THE RELEVANT PREVIOUS YEAR , ALTHOUGH THE SAID LOANS WERE SQUARED UP THE DURING THE RELEVANT PREVIOUS YE AR, THE POSTAL AUTHORITIES RETURNED THE NOTICES SENT TO THEM U/S 133(6) OF THE ACT. ITA 3861/MUM/2013 3 THE ASSESSEE WAS ASKED TO PRODUCE COPY OF BANK STAT EMENT AND COPY OF RETURN OF INCOME OF ALL THESE SIX LENDERS TO PROVE GENUINENESS OF LOAN AND CREDITWORTHINESS OF THE LOAN LENDERS, WHICH THE ASS ESSEE FAILED TO PRODUCE. THUS, THE AO VIDE ASSESSMENT ORDERS DATED 24.12.201 0 U/S 143(3) OF THE ACT ADDED LOAN OF RS.13,00,000/- RECEIVED FROM THESE SI X LENDERS AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. FURTHER ADDITION OF RS.54,975/- WAS MADE FOR INTEREST PAID ON THESE LOANS OF RS.13 LACS BY THE A SSESSEE DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR U/S. 68 OF THE ACT AS UNEXPLAINED CASH CREDIT, VIDE ASSESSMENT ORDERS DATED 24.12.2010 U/S 143(3) OF THE ACT. FURTHER ADDITION OF RS.1 LAC WAS MADE FOR LOAN OF R S.1.00 LAC SHOWN AS PAYABLE TO MR.PARSARAM ISSARDES IN THE BALANCE SHEE T/STATEMENT OF UNSECURED LOAN FILED BY THE ASSESSEE BEFORE THE AO , WHILE LOAN CONFIRMATION FILED BY THE ASSESSEE AND ALSO LOAN LENDER SHOWED T HAT THE SAID LOAN IS SQUARED UP DURING THE YEAR. THUS, THE AO TREATED TH IS NON-EXISTENT LOAN OF RS. 1 LAC AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT, VIDE ASSESSMENT ORDERS DATED 24.12.2010 PASSED BY THE AO U/S 143(3) OF THE ACT. 3. AGGRIEVED BY THE ASSESSMENT ORDER DATED 24.12.20 10 PASSED BY THE AO U/S. 143(3) OF THE ACT, THE ASSESSEE FILED FIRST AP PEAL BEFORE THE LEARNED CIT(A) WHICH WAS DISMISSED EX-PARTE BY THE LEARNED CIT(A) IN LIMINE WITHOUT DISCUSSING THE ISSUES ON MERITS, FOR NON PROSECUTIO N AS THE ASSESSEE DID NOT ATTENDED THE PROCEEDINGS BEFORE THE LEARNED CIT(A) DESPITE SEVERAL NOTICES ISSUED FROM 24-01-2012 TO 20-12-2013, VIDE APPELLAT E ORDERS OF THE LEARNED CIT(A) DATED 22.02.2013. 4. AGGRIEVED BY THE APPELLATE ORDERS DATED 22.02.20 13 PASSED BY THE LEARNED CIT(A), THE ASSESSEE FILED SECOND APPEAL WI TH THE TRIBUNAL. ITA 3861/MUM/2013 4 5. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE ASSESSEE ADDRESS HAD CHANGED AND NOTICES ISSUED BY THE LEARNED CIT(A ) ON 24-01-2012 , 21-12- 2012 AND 20-12-2013 WERE NOT RECEIVED BY THE ASSESS EE AND HENCE THE ASSESSEE WAS NOT AWARE OF THE DATE OF HEARINGS OF T HE APPEAL BEFORE THE LEARNED CIT(A) WHICH IS THE MAIN REASON FOR NON-ATT ENDANCE ON THE DATE OF HEARINGS BEFORE THE LEARNED CIT(A). THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE DULY NOTIFIED TO THE LEARNED CIT( A) ABOUT THE NEW ADDRESS VIDE LETTER DATED 30-1-2012, A COPY OF WHICH IS ALS O FILED WITH THE TRIBUNAL AND IS PLACED IN THE FILE. THE LD. COUNSEL SUBMITTE D THAT REPLIES WERE SUBMITTED BEFORE THE LEARNED AO BUT HE DID NOT CONS IDERED THE REPLIES FILED BY THE ASSESSEE WHILE FRAMING THE ASSESSMENT ORDERS , AND THE LEARNED CIT(A) ALSO HAS FRAMED AN EX-PARTE ORDERS AGAINST THE ASSE SSEE DISMISSING THE APPEAL IN LIMINE . THE LD. COUNSEL SUBMITTED THAT S ERIOUS PREJUDICE HAS BEEN CAUSED TO THE ASSESSEE AND THE MATTER MAY BE RESTOR ED TO THE FILE OF THE LEARNED CIT(A) FOR DE-NOVO DETERMINATION OF THE AP PEAL ON MERITS BY THE LEARNED CIT(A). THE LD. DR ON THE OTHER HAND RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT IF THE SERIOUS PREJUDICE IS CAUSED TO THE ASSESSEE AT THE LEVEL OF PROCEEDINGS BEFORE THE LEA RNED CIT(A) AS PER DETAILED REASONS SUBMITTED BY THE ASSESSEE, THE MATTER CAN B E SET ASIDE AND RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR DE-NOVO DETER MINATION OF THE ISSUE ON MERITS. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PER USED THE MATERIAL ON RECORD. WE HAVE OBSERVED THAT THE ASSESSEE FILED FI RST APPEAL BEFORE THE LEARNED CIT(A) ON 14-03-2011 AND THEREAFTER ON 30-0 1-2012 , THE ASSESSEE INTIMATED TO THE LEARNED CIT(A) ABOUT THE NEW ADDRE SS AND REQUESTED TO THE LEARNED CIT(A) TO RECORD THE NEW ADDRESS AND SEND C ORRESPONDENCE AT THE NEW ADDRESS , AS THE OLD ADDRESS WAS WRONGLY WRITTEN BY THE CONSULTANT WHILE ITA 3861/MUM/2013 5 FILING APPEAL WHICH PREMISES WAS ALREADY VACATED BY THE ASSESSEE. THE NOTICES FOR THE HEARING SENT FROM THE OFFICE OF THE LEARNED CIT(A) WERE STATED TO BE NOT RECEIVED BY THE ASSESSEE AND THE EX-PARTE ORDER HAS BEEN FRAMED BY THE LEARNED CIT(A) AND THE APPEAL OF THE ASSESSEE WAS D ISMISSED EX-PARTE IN LIMINE BY THE LEARNED CIT(A) WITHOUT DECIDING THE I SSUES ON MERITS. THE LEARNED CIT(A) WAS REQUIRED TO DECIDE THE APPEAL ON MERITS IN ACCORDANCE WITH PROVISIONS OF SECTION 251(6) OF THE ACT, WHICH IN T HE INSTANT CASE HAS NOT BEEN DONE. IN OUR CONSIDERED VIEW, INTEREST OF JUSTICE W ILL BE BEST SERVED IF THE ISSUES ARE RESTORED TO THE FILE OF THE LEARNED CIT( A) FOR DE-NOVO DETERMINATION OF THE ISSUES ON MERITS . THUS, WE SET-ASIDE THE OR DERS DATED 22.02.2013 PASSED BY THE LEARNED CIT(A) AND RESTORE THESE ISSU ES TO THE FILE OF THE LEARNED CIT(A) FOR DE-NOVO DETERMINATION OF ALL THE ISSUES ON MERITS. NEEDLESS TO SAY THAT PROPER AND ADEQUATE OPPORTUNITY OF HEARING SHA LL BE GIVEN BY THE LEARNED CIT(A) TO THE ASSESSEE IN ACCORDANCE WITH THE PRINC IPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA N0. 3861/MUM/2013 FOR THE ASSESSMENT YEAR 2008-09 IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH MAY, 2016. # $% &' 20-05-2016 ( ) SD/- SD/- (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 20-05-2016 [ ITA 3861/MUM/2013 6 9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI E BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI
