HIMANSHU M. JOSHI, MUMBAI V. ITO WD 22(1)(2), MUMBAI

ITA 4148/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9772 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 23-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 06-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Assessee Lawyers: VIRAG M SHAH
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 4148 /MUM/2015 ASSESSMENT YEAR: 2009 - 10 MR. HIMANSHU M. JOSHI C/O SHIRISH H. SHAH & CO. 1/2, MANGROL MANSION, 6, RUSTOM SIDHWA MARG, FORT, MUMBAI - 400001 VS. ITO - 22(1)(2) MUMBAI. PAN NO. AACPJ0131F APPELLANT RESPONDENT ASSESSEE BY : MR. VIRA G M. SHAH, AR REVENUEBY : MR. M.C. OMI NINGSHEN, DR DATE OF HEARING : 22 /06/2017 DATE OF PRONOUNCEMENT : 19/09/2017 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE . THE RELEVANT ASSESSMENT YEAR IS 2009 - 10 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMIS SIONER OF INCOME TAX (APPEALS) - 2 5, MUMBAI AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE LD. COUNSEL OF THE ASSESSEE DID NOT PRESS THE 1 ST GROUND OF APPEAL. THE 2 ND , 3 RD AND THE 4 TH GROUND OF APPEAL FILED BY THE ASSESSEE ARE AGAINST THE ORDER OF THE LD. CIT(A) CONFIRMING (I) ADDITION ON ACCOUNT OF ITA NO. 4148/MUM/2015 2 NEW LOANS OF RS.35,72,500/ - MADE BY THE AO U/S 68, (II) ADDITION ON ACCOUNT OF OUTSTANDING CREDITORS AMOUNTING TO RS.3,71,879/ - MADE BY TH E AO U/S 41(1) AND (III) ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS INTO BANK AMOUNTING TO RS.8,79,848/ - MADE BY THE AO U/S 69. 3. WE FIND FROM THE ASSESSMENT ORDER THAT THERE WAS NO COMPLIANCE BY THE ASSESSEE TO THE NOTICE ISSUED BY THE AO FOR HEARI NG AND FILING THE DETAILS. THERE IS NO DISPUTE ABOUT THIS. THEREFORE, THE AO MADE AN ADDITION OF(I) RS.35,72,500/ - U/S 68, (II) RS.3,71,879/ - U/S 41(1), (III) RS.8,79,848/ - U/S 69 AND (IV) AD - HOC DISALLOWANCE @ 25% OF ADMINISTRATIVE AND OFFICE EXPENSES OF RS.1,19,809/ - . 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). THE ASSESSEE FILED CONFIRMATION LETTERS FROM THE LOAN PARTIES BEFORE THE LD. CIT(A). THE LD. CIT(A) SENT A COPY OF IT TO THE AO TO VERIFY THE ABOVE ADDI TIONAL EVIDENCE AND FILE A REMAND REPORT. HAVING GONE THROUGH THE REMAND REPORT, THE ARGUMENT OF THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, THE LD. CIT(A) CONFIRMED THE ADDITION OF RS.35,72,500/ - MADE BY THE AO U/S 68, RS.3,71,879/ - U/S 41(1) AND RS.8, 79,848/ - U/S 69. HE RESTRICTED THE AD - HOC DISALLOWANCE OF ADMINISTRATIVE AND OFFICE EXPENSES MADE BY THE AO TO 20%. 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE ASSESSEE WAS NOT GIVEN REASONABLE OPPORTUNITY OF BEING HEARD IN THE REMAND P ROCEEDINGS BY THE AO TO EXPLAIN HIS CASE. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THERE WAS NO COMPLIANCE BY THE ASSESSEE IN THE ITA NO. 4148/MUM/2015 3 ASSESSMENT PROCEEDINGS AND THE ORDER PASSED BY THE LD. CIT(A) BE CONFIRMED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERU SED THE RELEVANT MATERIALS ON RECORD. WE FIND THAT THE LD. CIT(A) HAS SENT TO THE AO VIDE HIS OFFICE LETTER DATED 19.12.2012 THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE TO EXAMINE AND THEN SEND A REMAND REPORT. WE HAVE GONE THROUGH THE COPY OF THE REMAND REPORT DATED 16.04.2013 OF THE ITO - 22(1)(2), MUMBAI ADDRESS ED TO THE CIT(A). THEREIN, THERE IS NO MENTION OF OPPORTUNITY GIVEN TO THE ASSESSEE TO EXPLAIN HIS CASE. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO MAKE A FRESH ASSESSMENT AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE HON'BLE SUPREME COURT IN STATE OF KERALA VS. K.T. SHADULI GROCERY DEALER AIR 1977 SC 1627, RECOGNISED THE IMPORTANCE OF ORAL EVIDENCE BY HOLDING THAT THE OPPORTUNITY TO PROVE THE CORRECTNESS OR COMPLETENESS OF THE RETURN NECESSARILY CARRY WITH IT THE RIGHT TO EXAMINE WITNESSES AND THAT INCLUDES EQUALLY T HE RIGHT TO CROSS - EXAMINE WITNESSES. THE AO WOULD PROVIDE THE ASSESSEE TO CROSS - EXAMINE THE PARTIES. WE ALSO DIRECT THE ASSESSEE TO FILE THE EVIDENCE/DETAILS BEFORE THE AO. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19/09/2017 SD/ - SD/ - ( SAKTIJIT DEY ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER ITA NO. 4148/MUM/2015 4 MUMBAI ; DATED: 19/09/2017 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI