MOHD ISMAIL NOORMOHD SHAIKH, MUMBAI V. ITO WD 2(2), THANE

ITA 4155/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3385 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-03-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 23-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRAJIT SINGHD R
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3); 142(1)

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 4155 /MUM/2013 ( / ASSESSMENT YEAR : 2006-07) MR. MOHD. ISMAIL NOORMOHD SHAIKH, R. NO. 192, 8 TH FLOOR, DCB BUILDING, MUSAFARKHANA, PALTON ROAD, MUMBAI 400 001. / V. ITO WARD 2(2), I.T. OFFICES, QURESHI MANSON, GOKHALE ROAD, THANE (WEST). ./ PAN : AAMPS 4936 K ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY NONE REVENUE BY : SHRI CHANDRAJIT SINGH(D.R.) / DATE OF HEARING : 9-03-2016 / DATE OF PRONOUNCEMENT : 03-06-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 4155/MUM/2013, IS DIRECTED AGAINST THE ORDER DATED 01-02-2013 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- II, THANE (HEREINAFTER CAL LED THE CIT(A) ), FOR THE ASSESSMENT YEAR 2006-07, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSMENT ORDER DATED 26-12-2008 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 143(3) OF THE INCOME TAX ACT,1961 (HEREINAFTER CALLED THE ACT). ITA 4155/MUM/2013 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE INCOME TAX APPELLATE TRIBUNAL, MUMBA I (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED C.I.T. (A) ERRED IN DISMISSING THE APPEAL A ND THAT TOO WITHOUT GIVING FULL AND PROPER OPPORTUNITY OF BEING HEARD I N THE MATTER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED C.I.T . (A) ERRED IN DISMISSING THE APPEAL A ND THAT TOO WITHOUT APPRECIATING FULLY AND PROPERLY THE FACTS OF THE CASE . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED C.I.T. (A) ERRED IN CONFIRMING THE ADDITION MADE OF RS. L5,01,000/- 4. ON THE FACTS AND IN THE CIRCUMSTANCES 'OF THE CASE AND IN LAW, THE LEARNED C.I.T. (A) ERRED IN CONFIRMING THE ADDITI ON MADE OF RS.60,000/-. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T. (A) ERRED IN CONFIRMING THE ADDITION MADE OF RS.30,000/-. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED C.I.T. (A) ERRED IN CONFIRMING THE ADDITION M ADE OF RS.5,600/- 3. AT THE TIME OF HEARING BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, WE PROCEED TO DISPOSE OF THE A PPEAL AFTER HEARING THE LEARNED D.R. 4. AT THE OUTSET, WE FIND THAT THIS APPEAL IS DELAY ED BY 9 DAYS IN FILING THE APPEAL BY THE ASSESSEE BEFORE THE TRIBUNAL AS PER T HE TIME LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL AS STIPULATED U/S 253(3) OF THE ACT. THE ASSESSEE VIDE HIS LETTER DATED 3 RD FEBRUARY, 2014 ALONG WITH AFFIDAVIT OF EVEN DATE SUBMITTED THAT THE APPEAL WAS FILED ON 23 RD MAY, 2013 WHILE THE ORDER DATED 01-02-2013 OF THE LEARNED CIT(A) WAS RECEIVED ON 14 -03-2013 , RESULTING IN DELAY OF 9 DAYS IN FILING THE APPEAL WITH THE TRIBU NAL. IN THIS CONNECTION, THE ASSESSEE HAS FILED AFFIDAVIT DATED 03-02-2014 FOR C ONDONATION OF THE DELAY OF 9 ITA 4155/MUM/2013 3 DAYS IN FILING OF THE APPEAL WITH THE TRIBUNAL, WH EREBY THE ASSESSEE PRAYED FOR THE CONDONATION OF DELAY OF 9 DAYS. THE ASSESS EE VIDE HIS AFFIDAVIT DATED 3-2-2014 AND SUBMITTED THAT DUE TO INDISPOSITION AN D ILLHEALTH OF THE ASSESSEE, THE ASSESSEE COULD NOT FILE THE APPEAL WI THIN THE STIPULATED TIME AS PRESCRIBED U/S 253(3) OF THE ACT . THE ASSESSEE SUB MITTED THAT THE DELAY WAS NOT INTENTIONAL AND THE DELAY OCCURRED SOLELY DUE T O HIS ILL HEALTH AND INDISPOSITION AND THE ASSESSEE PRAYED FOR CONDONATI ON OF DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL BY 9 DAYS. 5. THE LEARNED D.R., ON THE OTHER HAND, OPPOSED THE CONDONATION OF DELAY APPLICATION IN FILING THE APPEAL BY THE ASSESSEE LA TE BY 9 DAYS. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF THE ASSESS EE AS MADE THROUGH LETTER AND AFFIDAVIT BOTH DATED 03-02-2014 AS WELL THE CONTENTIONS OF THE LEARNED DR. WE HAVE OBSERVED FROM THE ASSESSEES AF FIDAVIT DATED 3-2-2014 THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE BEING ILL-HEALTH AND INDISPOSITION IN FILING HIS APPEAL BEFORE THE TRIBU NAL WITHIN THE TIME STIPULATED UNDER THE PROVISIONS OF SECTION 253(3) O F THE ACT WHEREBY THE FILING OF APPEAL IS DELAYED BY 9 DAYS. IN OUR CONSIDERED V IEW, THERE IS NO DELIBERATE DELAY ON THE PART OF THE ASSESSEE IN FILING THIS AP PEAL LATE BY 9 DAYS AND THE ASSESSEE DID HAD A SUFFICIENT CAUSE BEING ILL-HEALT H AND INDISPOSITION FOR NOT FILING APPEAL WITHIN TIME LIMIT PRESCRIBED U/S 253( 3) OF THE ACT. IN VIEW OF THE BONA-FIDE REASONS SUBMITTED BY THE ASSESSEE VIDE AF FIDAVIT DATED 03-02-2014 AND IN THE LIGHT OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR OF LAND ACQUISITION V. MST. KATIZ AND OTH ERS, (1987)167 ITR 471(SC), WE DEEM IT FIT AND PROPER TO CONDONE THE DELAY OF 9 DAYS IN FILING THIS APPEAL BY THE ASSESSEE BEFORE THE TRIBUNAL AS THE ASSESSEE WAS PREVENTED BY A SUFFICIENT CAUSE IN FILING THIS APPEAL LATE BY 9 DAYS WITH THE TRIBUNAL AND ACCORDINGLY WE CONDONE THE SAME AND ADMIT THIS APPE AL. ITA 4155/MUM/2013 4 7. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS ENGAGED IN THE BUSINESS OF CROCKERY AND CUTLERY ITEMS. THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) R.W.S. 142(1) OF THE ACT WAS ISSUED BY THE AO TO THE ASSESSEE. THE ASSESSEE DID NOT SUBMIT THE B ANK DETAILS ETC. AS WERE CALLED BY THE AO. THE SUMMONS WERE ISSUED BY THE AO TO THE BANKERS OF THE ASSESSEE AND IN RESPONSE THE BANK SUBMITTED THE BAN K STATEMENT OF THE ASSESSEE , WHEREIN THE A.O. OBSERVED THAT ASSESSEE HAS DEPOSITED CASH AMOUNTING TO RS. 15,01,000/- ON 17 TH JUNE, 2005 AND ON THE SAME DAY THE AMOUNT OF RS. 15,01,000/- WAS TRANSFERRED TO OTHER ACCOUNT. THE ASSESSEE WAS ASKED THE SOURCE OF INCOME AND THE REASON FOR T RANSFER OF THE AMOUNT, BUT NO EXPLANATION WAS OFFERED BY THE ASSESSEE. FU RTHER, IT WAS OBSERVED BY THE A.O. FROM THE P&L ACCOUNT THAT NET PROFIT IS DE CLARED AT RS. 1,22,890/- BUT IN THE COMPUTATION OF INCOME, THE NET PROFIT WA S SHOWN AT RS. 62,890/-. WHEN THE ASSESSEE WAS ASKED BY THE AO, NO EXPLANATI ON WAS GIVEN BY THE ASSESSEE WITH RESPECT TO THE DIFFERENCE OF RS. 60,0 00/-. THE A.O. OBSERVED FROM THE SUBMISSION RECEIVED FROM MR. NAVAL KARNIK, THE C.A. ON 16 TH DECEMBER, 2008 THAT THE ASSESSEE IS A PARTNER OF M/ S ASIA GROUP AND INVESTED AN AMOUNT OF RS. 5 LAKHS IN CASH AND RECEI VED INTEREST OF RS. 30,000/- AND THE SAME WAS NOT SHOWN IN THE COMPUTAT ION OF INCOME FILED ALONG WITH RETURN OF INCOME. THUS, THE A.O. MADE AD DITION OF RS. 15,91,000/- AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSES SEE AS PER DETAILS AS STATED ABOVE. FURTHER, THERE WAS AN ADDITION OF RS . 5,600/- ON ACCOUNT OF EXPENSES WHICH WERE ALSO NOT VOUCHED PROPERLY, VIDE ASSESSMENT ORDERS DATED 26.12.2008 PASSED BY THE AO U/S 143(3) OF THE ACT. 8.AGGRIEVED BY THESE ADDITIONS OF RS.15,96,600/- MA DE BY THE AO VIDE ASSESSMENT ORDERS DATED 26.12.2008 PASSED U/S 143(3 ) OF THE ACT, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LE ARNED CIT(A). ITA 4155/MUM/2013 5 9. BEFORE THE LEARNED CIT(A) , THE ASSESSEE DID NOT COMPLY WITH THE VARIOUS NOTICES ISSUED BY THE LEARNED CIT(A) FIXING THE APP EAL FOR HEARING BUT THE ASSESSEE DID NOT APPEAR BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A), HENCE, DISMISSED THE APPEAL OF THE ASSESSEE AT THE THRESHO LD IN LIMINE WITHOUT DISCUSSING THE ISSUES IN APPEAL ON MERITS, VIDE APP ELLATE ORDERS DATED 01-02- 2013. 10. AGGRIEVED BY THE APPELLATE ORDERS DATED 01-02-2 013 PASSED BY THE LEARNED CIT(A), THE ASSESSEE FILED SECOND APPEAL WITH THE T RIBUNAL. 11. NONE APPEARED FOR THE ASSESSEE WHEN THE APPEAL WAS CALLED FOR HEARING. THE LEARNED D.R. ON THE OTHER HAND SUPPORTED THE OR DER OF THE LEARNED CIT(A) AND SUBMITTED THAT THE ASSESSEE DID NOT COMPLY WITH THE VARIOUS NOTICES ISSUED TO HIM BY THE LEARNED CIT(A) AS WELL THERE W AS NOT PROPER APPEARANCES BEFORE THE LEARNED AO. 12. WE HAVE HEARD THE LEARNED D.R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE OBSERVED THAT IT WAS INCUMBENT ON T HE LEARNED CIT(A) TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS AS PROV IDED U/S 250(6) OF THE ACT WHICH READS AS UNDER:- PROCEDURE IN APPEAL 250(6) THE ORDER OF THE COMMISSIONER (APPEALS) DISP OSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINA TION, THE DECISION THEREON AND THE REASON FOR THE DECISION. WE HAVE OBSERVED THAT THE LEARNED CIT(A) HAS NOT DI SCUSSED THE ISSUES UNDER APPEAL ON MERITS AND PASSED AN EX PARTE APPELLATE O RDER DATED 01-02-2013 IN LIMINE WITHOUT DISCUSSION ON MERITS ON THE ISSUES I NVOLVED IN APPEAL. IN OUR CONSIDERED VIEW, THE LEARNED CIT(A) OUGHT TO HAVE D ECIDED THE ISSUES ON ITA 4155/MUM/2013 6 MERITS IN VIEW OF MANDATE OF SECTION 250(6) OF THE ACT. AS SUCH IN OUR CONSIDERED VIEW , THE INTEREST OF JUSTICE WILL BE B EST SERVED IF ALL THE ISSUES IN THE INSTANT APPEAL ARE SET ASIDE AND RESTORED TO TH E FILE OF THE LEARNED CIT(A) FOR RE-DETERMINATION AND DE-NOVO ADJUDICATING OF TH E ISSUES ON MERITS AFTER CONSIDERING THE RELEVANT SUBMISSIONS AND EVIDENCES OF THE ASSESSEE FILED , IF ANY IN HIS DEFENSE BEFORE THE LEARNED CIT(A) IN SET ASIDE PROCEEDINGS . THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE LEARNED C IT(A) AND SUBMIT ALL NECESSARY AND RELEVANT EVIDENCES AND EXPLANATIONS I N SUPPORT OF HIS CLAIMS AND CONTENTION WHICH SHALL BE ADMITTED BY THE LEAR NED CIT(A) AND THE APPEAL SHALL BE ADJUDICATED BY THE LEARNED CIT(A) ON MERIT S . NEEDLESS TO SAY, THE ASSESSEE WILL BE GIVEN ADEQUATE AND PROPER OPPORTUN ITY OF BEING HEARD BY THE LEARNED CIT(A) IN ACCORDANCE WITH PRINCIPLES OF NAT URAL JUSTICE IN ACCORDANCE WITH LAW. 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA N0. 4155/MUM/2013 FOR THE ASSESSMENT YEAR 2006-07 IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD JUNE, 2016. # $% &' 03-06-2016 ( ) SD/- SD/- (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 03-06-2016 [ ITA 4155/MUM/2013 7 .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 B BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI