MR. MUSTAFA HASAN KUTIYANAWALA, MUMBAI V. THE COMM OF INCOME TAX OFFICER (A), WARD-20(2)(1), MUMBAI

ITA 420/MUM/2023

AI Insights

The case involves Mr. Mustafa Hasan Kutiyanawala, who appealed against the order of the National Faceless Appeal Centre (NFAC) concerning the assessment year 2014-15. The primary contention was the non-compliance with procedural requirements, which led to an ex-parte assessment and subsequent additions under Section 68 of the Income Tax Act, 1961, treating certain cash deposits as unexplained. The assessee argued that his Chartered Accountant failed to represent him adequately due to personal circumstances, including her father's death. The Tribunal noted the assessee's lack of representation at various stages but, in the interest of justice, allowed a final opportunity for a de novo assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123394 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: D
• Next Hearing Date: 18-04-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 12-02-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside
• Section: 68; 144; 142(1); 250; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D”, MUMBAI BEFORE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER AND SHRI GAGAN GOYAL, ACCOUNTANT MEMBER ITA No. 420/Mum/2023 (A.Y.2014-15) Mr. Mustafa Hasan Kutiyanawala, 8/14, Rajabi House, Janjikar Street, Mashid, Mumbai-400 003 PAN: AAHPK4534E ...... Appellant Vs. CIT(A) Aayakar Bhavan, M. K. Road, Mumbai-400020 ..... Respondent Appellant by : Shri Firoz Andhyarujina Respondent by : Shri Mahita Nair, Sr. AR – CIT Date of hearing : 19/04/2023 Date of pronouncement : 12/06/2023 ORDER PER GAGAN GOYAL, A.M: This appeal by assessee is directed against the order of National Faceless Appeal Centre (for short “NFAC”) dated 24.11.2022 u/s. 250 of the Income Tax Act, 1961 (in short ‘the Act’) for A.Y. 2014-15. The assessee has raised the following grounds (revised) of appeal:- 2 ITA No. 420/Mum/2023 Mr. Mustafa Hasan Kutiyanawala 1. On the facts and in the circumstances of the case and in law the CIT (A) has erred in confirming the order of the Assessing Officer without considering: That the appellant due to various circumstances and having entrusted the matter to a Chartered Accountant who in turn did not a t appear or make proper representations and the order was passed for non- compliance on the ground that the assessee had failed to pursue the matter with the department. 2. On issue of non-compliance the following points need to be considered: (a) The impugned order is not on merit (b) The assessee is genuinely handicapped by migration to new Faceless Scheme and was not vigilant in checking online portal. The appeal is dismissed primarily for non- compliance and thus the order is non-speaking and unreasonable. (c) The impugned order is not backed by cognitive reasons as no evidences could be produced. Hence, an opportunity be accorded to the assessee in the interest of justice and on principles of natural justice. 3. Without prejudice and in the alternative the additions made of cash deposits of Rs. 64,96,824/- treated as unexplained cash credit under Section 68 of The Income Tax Act, 1961 be set aside with a direction to produce available details which have not been submitted due to non-compliance and lack of representation. 4. On the facts and in the circumstances of the case and in law the appellant had entrusted the matter to a professional. He cannot be put to loss if no proper representation is made by the professional. 5. On the facts and in the circumstances of the case and in law the order of the NFAC be set aside and a fresh opportunity be given to the appellant to pursue the case on the principles of fair play and natural justice. 3 ITA No. 420/Mum/2023 Mr. Mustafa Hasan Kutiyanawala The appeal before us filed by the assessee is time barred by 21 days. A defect Memo was issued to the assessee dated 15.03.2023. In response to that, assessee filed an application for condonation of delay alongwith an affidavit. It was mentioned in the affidavit that assessee is under medical supervision and not medically fit. It is also submitted that father of the Chartered Accountant of the assessee Mrs. Tasneem Dalal, expired on 09.01.2023. Because of this, she was not able to attend her office from almost 2 weeks. Looking at the facts and circumstances, we deem it fit to condone the delay of 21 days in filing of appeal. 2. Brief facts of the case are that assessee filed his return of income on 03.03.2015 declaring total income at Rs. 2,95,845/-. The case of the assessee was selected for scrutiny and observed that assessee has deposited Rs. 49, 89,135/- and Rs. 15, 07,689/- in his saving account of ICICI Bank, Bandra Kurla Complex, Mumbai. AO issued various notices including u/s. 143(2) and 142(1) of the act on 31.08.2015, 24.09.2015, 05.12.2016 and a final show cause notice on 13.12.2016. But assessee never turned up to attend the proceedings and to file his replies in compliance to notices mentioned above. Finally assessment of the assessee was framed ex-parte u/s. 144 of the Act and addition u/s 68 amounting to Rs. 64, 96,824/- was made. Assessee being aggrieved with this order of AO filed an appeal before the Ld. CIT (A). The fate of the story was same and here also as per para 4 vide page no. 4 of the Ld. CIT (A)’s order, assessee did not comply with any of the notices issued on 24.02.2021, 11.02.2022, 23.05.2022 and last notice was issued on 4 ITA No. 420/Mum/2023 Mr. Mustafa Hasan Kutiyanawala 30.05.2022. As the assessee never turned up in the appellate proceedings also, it was also concluded ex-parte and confirmed the order of AO. 4. Assessee being aggrieved with this order of Ld. CIT (A) filed an appeal before us. We have gone through the order of AO, the order of Ld. CIT (A) and the grounds of appeal taken by the assessee. We observed that the matter of assessee was never examined at any stage and nothing in his support submitted before us also. In this appeal, assessee raised total 5 grounds, out of those initial 4 grounds; we do not find any substance as assessee himself never turned up before the authorities below. Hence ground no. 1 to 4 is dismissed as baseless, but as a matter of last opportunity and to have a fair justice in the matter, we allow the ground no. 5 raised by the assessee. In these terms, we restore the matter back to the file of jurisdictional AO for de novo assessment on the issues already under consideration after giving a fair opportunity to the assessee and assessee is directed to attend the proceedings meticulously and file relevant documents before the AO. 8. In the result, appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open court on 12 th day of June, 2023. Sd/- Sd/- (PAVAN KUMAR GADALE) (GAGAN GOYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, दिन ांक/Dated: 12/06/2023 Sr. PS (Dhananjay) 5 ITA No. 420/Mum/2023 Mr. Mustafa Hasan Kutiyanawala Copy of the Order forwarded to: 1. अपील र्थी/The Appellant , 2. प्रदिव िी/ The Respondent. 3. आयकर आयुक्त(अ)/The CIT(A)- 4. आयकर आयुक्त CIT 5. दवभ गीय प्रदिदनदि, आय.अपी.अदि., मुबांई/DR, ITAT, Mumbai 6. ग र्ड फ इल/Guard file. BY ORDER, //True Copy// (Asstt. Registrar) ITAT, Mumbai