ACIT 18(2)(3), MUMBAI V. FATHER JOSEPH P PERERA, MUMBAI

ITA 3922/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2833 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 09-03-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 12-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM) . . , , ./ I. T.A. NO. 3922 / MUM/20 1 1 ( / ASSESSMENT YEAR : 2005 - 06) THE INCOME TAX OFFICER 18(2)(3), 105, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012 / VS. FATHER JOSEPH PHILIPS PERIERA, ST.ANTHONY CHUR C H , KH E RANI ROAD, SAKINAKA, MUMBAI - 400072 ( / APPELLANT ) .. ( / RESPONDENT ) CO.NO. 265/MUM/2012 ARISING OUT OF I.T.A. NO. 3922/ MUM/20 11 ( / ASSESSMENT YEAR : 2005 - 06) FATHER JOSEPH PHILIPS PERIERA, ST.ANTHONY CHURCH, KH E RANI ROAD, SAKINAKA, MUMBAI - 400072 / VS. ASSTT. COMMISSIONER OF INCOME TAX 18(2)(3), PIRAMAL CHAMBERS, MUMBAI - 400012 ( / APPELLANT ) .. ( / RESPONDENT ) CO.NO. 126/MUM/2013 ARISING OUT OF I.T.A. NO. 3922/ MUM/20 11 ( / ASSESSMENT YEAR : 2005 - 06) FATHER JOSEPH PHILIPS PERIERA, ST.ANTHONY CHURCH, KH E RANI ROAD, SAKINAKA, MUMBAI - 400072 / VS. INCOME TAX OFFICER 18(2)(3), 105, 1 ST FLOOR, PIRAMAL CHAMBERS, MUMBAI - 400012 ( / APPELLANT ) .. ( / RESPONDENT ) ITA NO . 3922 /MUM/201 1 CO NOS.265/MUM/2012 AND CO NO.126/MUM/2013 2 ./ ./PAN. : AGJPP2567N / REVENUE BY SHRI ABHINAY KUMBHAR / ASSESSEE BY NONE / DATE OF HEARING : 2 8. 10 . 201 5 / DATE OF PRONOUNCEMENT 2 8 .10 . 201 5 / O R D E R PER B ENCH THE REVENUE HAS FILED APPEAL CHALLENGING THE ORDER DATED 28 - 02 - 2011 PASSED BY LD CIT(A) FOR ASSESSMENT YEAR 2005 - 06 DELETING THE ADDITION OF RS.28.57 LAKHS MADE U/S 68 OF THE ACT. THE ASSESSEE HAS FILED CROSS OBJECTION POINTING OUT THAT THE REVENUE HAS SERVED THE NOTICE OF ITAT ON WRONG ADDRESS AND THE REVENUE HAS ALSO FILED CROSS OBJECTION STATING THAT THE NOTICE WAS SERVED IN THE ADDRESS GIVEN BY THE ASSESSEE. 2. NONE APPEA RED ON BEHALF OF THE ASSESSEE, EVEN THOUGH THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE WAS SEEKING ADJOURNMENT ON EARLIER MANY OCCASIONS. HENCE WE PROCEED TO DISPOSE OF THESE APPEALS EX - PARTE, WITHOUT THE PRESENCE OF THE ASSESSEE. 3. WE HEARD LD D. R AND PERUSED THE RECORD. THE ASSESSEE IS PRIEST RECEIVING ALLOWANCES FROM THE CHURCH. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS MADE CASH DEPOSITS TO THE TUNE OF RS.28.57 LAKHS IN HIS BANK ACCOUNT AND HENCE CALLED FOR EXPLANATIONS FROM THE ASS ESSEE. SINCE THE ASSESSEE DID NOT FURNISH THE DETAILS, THE AO ASSESSED THE SAME AS INCOME OF THE ASSESSEE. IN THE APPELLATE PROCEEDINGS, THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS BEEN WORKING AS MANAGER CUM PARIS PRIEST IN A SCHOOL NAMED M/S SACRED HE ART SCHOOL AND THE CASH DEPOSITED ITA NO . 3922 /MUM/201 1 CO NOS.265/MUM/2012 AND CO NO.126/MUM/2013 3 INTO HIS BANK ACCOUNT PERTAINS TO THE ABOVE SAID SCHOOL. THE ASSESSEE PRAYED BEFORE THE LD CIT(A) TO ADMIT ADDITIONAL EVIDENCES UNDER RULE 46A OF THE IT RULES. HENCE THE LD CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSES SING OFFICER. HOWEVER, IT APPEARS THAT THE ASSESSING OFFICER HAD OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCES. THEREAFTER THE LD CIT(A) ACCEPTED THE EXPLANATIONS OF THE ASSESSEE AND ACCORDINGLY DELETED THE ADDITION CITED ABOVE. AGGRIEVED, THE REVEN UE HAS FILED THIS APPEAL BEFORE US. 4. FROM THE PERUSAL OF THE ORDER OF THE LD CIT(A), WE NOTICE THAT THE FIRST APPELLATE AUTHORITY HAS ACCEPTED THE EXPLANATIONS OF THE ASSESSEE ON THE FACE OF IT WITHOUT CAUSING EXAMINATION OF THE BOOKS OF M/S SACRED HEART SCHOOL TO EXAMINE THE VERACITY OF THE EXPLANATIONS. IN OUR VIEW, THE EXPLANATIONS OF THE ASSESSEE REQUIRE EXAMINATION WITH THE ENTRIES MADE IN THE BOOKS OF THE SCHOOL CITED, WITHOUT WHICH IT WOULD BE DIFFICULT TO ACCEPT THE EXPLANATIONS. HENCE, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE E XPLANATIONS OF THE ASSESSEE BY CONSIDERING VARIOUS EVIDENCES THAT MAY BE FILED BEFORE HIM. THE ASSESSEE IS ALSO DIRECTED TO FURNISH THE RELEVANT DETAILS INCLUDING THE BOOKS OF ACCOUNTS OF THE SCHOOL THAT MAY BE CALLED FOR BY THE ASSESSING OFFICER. AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD, THE ASSESSING OFFICER MAY DECIDE THIS ISSUE IN ACCORDANCE WITH THE LAW. 5. THE CROSS OBJECTIONS FILED BY BOTH THE PARTIES RELATE TO THE COMMUNICATION OF NOTICE. FURTHER THE VALIDITY OF CROSS OBJECTION FILED BY THE REVENUE AGAINST THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALSO DOUBTFUL. HENCE WE DO NOT FIND IT NECESSARY TO ADJUDICATE THEM. ITA NO . 3922 /MUM/201 1 CO NOS.265/MUM/2012 AND CO NO.126/MUM/2013 4 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE AND BOTH THE CROSS OBJECTIONS ARE DISMISSED. PRONOUNCED ACCORDINGLY ON 28 TH OCT, 2015 . 28 TH OCT, 2015. SD SD ( / SANJAY GARG ) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 28 TH OCT, 2015. . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI