DHANESHBHAI N PATEL HUF, MUMBAI V. ITO WD 24(1)(4), MUMBAI

ITA 4271/MUM/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 4453 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-10-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 13-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: HITESH P SHAH
• Keywords: Unexplained cash credit; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI RAJENDRA SINGH (ACCOUNTANT MEMBER) I.T.A.NO.4271/MUM/2009 ASSESSMENT YEAR : 2005-06 DHANESHBHAI N PATEL HUF, 5, SOMAIYA CHAMBERS, 2 ND FLOOR, S.V. ROAD, MALAD (WEST), MUMBI 400 064 PAN: AAAAHD 0107 K VS. THE INCOME-TAX OFFICER, WARD 24(1)-4, 5 TH FLOOR, C-13, PRATYKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400 051 (APPELLANT) (RESPONDENT) A N D I.T.A.NO.4272/MUM/2009 ASSESSMENT YEAR : 2005-06 CHIMANBHAI N PATEL HUF, 5, SOMAIYA CHAMBERS, 2 ND FLOOR, S.V. ROAD, MALAD (WEST), MUMBI 400 064 PAN: AAAAHP 2619 E VS. THE INCOME-TAX OFFICER, WARD 24(1)-4, 5 TH FLOOR, C-13, PRATYKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400 051 (APPELLANT) (RESPONDENT) APPELLANTS BY : SHRI HITESH P. SHAH RESPONDENT BY : SHRI SURENDRA KUMAR (D.R.) O R D E R THESE APPEALS BY TWO DIFFERENT ASSESSEES OF THE SA ME FAMILY ARE DIRECTED AGAINST COMMON ORDER DATED 7 TH JANUARY, 2 009 OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-XXIV , MUMBAI, FOR THE ASSESSMENT YEAR 2005-06. THE ASSESSEES IN THESE A PPEALS HAVE RAISED DISPUTES IN RELATION TO TREATMENT OF LONG TERM CAPITAL LOSS AS UNEXPLAINED CASH CREDIT AND AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES. T HE ASSESSEES ALSO RAISED A GROUND REGARDING LACK OF ADEQUATE OPPORTUNITY. 2. FIRST I WOULD TAKE UP THE ISSUE RELATING TO LACK OF ADEQUATE OPPORTUNITY. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT DURING T HE ASSESSMENT PROCEEDINGS SHRI DIPESH SANGHVI HAD ATTENDED FROM TIME TO TIME. ON 30.07.2007 SHRI VIRAL SHAH, C.A., FILED POWER OF ATTORNEY TO ATTEND THE C ASE WHICH WAS ADJOURNED TO 6.08.2007 FOR EXAMINATION OF THE ASSESSEE ON OATH. HOWEVER, NO ONE ATTENDED ITA NOS.4271 & 4272/M/2009 2 AND THE ASSESSING OFFICER COMPLETED THE ASSESSMENT WITHOUT FURTHER OPPORTUNITY. THE A.O. TREATED THE SALE PROCEEDS OF JEWELLERY AS INCOME U/S.68 AND THE AGRICULTURAL INCOME WAS TREATED AS INCOME FROM OTHE R SOURCES IN THE ABSENCE OF ONLY EVIDENCE PRODUCED. IN APPEAL, THE CIT(A) OBSE RVED THAT NOTICES WERE SENT BY HIM BY SPEED POST FIXING THE HEARING OF THE APPE AL ON 31.10.2008, 27.11.2008 AND 29.12.2008 BUT THERE WERE NO COMPLIANCES. THE C IT(A), THEREFORE, DECIDED THE APPEAL EX PARTE ON THE BASIS OF THE MATERIAL AVAILA BLE ON RECORD AND CONFIRMED THE ORDER OF THE A.O. AGGRIEVED BY THE SAID REASON, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. BEFORE ME THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE A.O. HAD REJECTED THE CLAIM OF L ONG TERM CAPITAL LOSS ON SALE OF JEWELLERY FOR WANT OF EVIDENCE REGARDING OF JEWELLE RY AND TREATED THE SAME AGRICULTURAL INCOME AS INCOME FROM OTHER SOURCES FO R WANT OF EVIDENCE OF ACTUAL AGRICULTURAL ACTIVITIES. IT WAS ARGUED THAT ASSESSE ES HAD ALL THE EVIDENCES IN THEIR POSSESSION REGARDING ACQUISITION OF JEWELLERY WHIC H HAD BEEN RECEIVED ON FAMILY SETTLEMENT AS WELL AS EVIDENCE OF AGRICULTURAL ACTI VITIES. IT IS NOT UNDERSTOOD AS TO HOW THE LEARNED AUTHORISED REPRESENTATIVE FOR THE A SSESSEE HAD NOT FILED THESE EVIDENCES BEFORE THE A.O. AND HOW HE COULD NOT APPE AR BEFORE THE CIT(A). THEY HAD DEPENDED UPON THE LEARNED COUNSEL. THE ASSESSE ES HAVE ALSO FILED ADDITIONAL EVIDENCE PLACED IN THE PAPER BOOK PAGES 1 -77 REGAR DING COURCE OF ACQUISITION OF JEWELLERY AND AGRICULTURAL ACTIVITIES AND HAS REQUE STED FOR ADMISSION OF ADDITIONAL EVIDENCE. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, PLACED RELIANCE ON THE FINDINGS GIVEN IN THE ORDERS OF THE AUTHORITIES BELOW. 4. I HAVE CONSIDERED THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND CONSIDERED THE MATTER CAREFULLY. THE ASSESSMENT ORDERS SHOW THAT ON 30.7.2007 SHRI VIRAL SHAH, C.A. HAD FILED POWER OF ATTORNEY AND THE CASE WAS ADJOURNED TO 6.8.2007 FOR EXAMINATION OF THE ASSESS EE ON OATH. IT APPEARS THAT ITA NOS.4271 & 4272/M/2009 3 THERE WAS NO COMPLIANCE AND THEREAFTER THE A.O. PAS SED AN ORDER WITHOUT ANY FURTHER OPPORTUNITY. IN MY VIEW THE ACTION OF THE A .O. IN NOT GIVING FURTHER OPPORTUNITY TO THE ASSESSEE IS NOT JUSTIFIED PARTIC ULARLY WHEN THE CASES WERE NOT TIME BARRING. BEFORE THE CIT(A, IT APPEARS, THAT NO TICES OF HEARING HAD BEEN SENT BY SPEED POST BUT THERE WAS ANY COMPLIANCE. THE AS SESSEES HAVE EXPLAINED THAT IT HAD ALL THE MATERIAL IN THEIR POSSESSION IN SUPP ORT OF THE SOURCE OF ACQUISITION OF JEWELLERY AND EVIDENCE ON AGRICULTURAL ACTIVITIES. THE ASSESSEES HAD DEPENDED ON THEIR COUNSEL AND WERE NOT AWARE OF NON-ATTENDANCE BY THEIR COUNSEL. IT HAS ACCORDINGLY REQUESTED THAT THE ASSESSEE MAY BE GIVE N PROPER OPPORTUNITY TO FILE THE EVIDENCES IN SUPPORT OF ITS CLAIM. IN MY VIEW ON THE FACTS AND IN THE CIRCUMSTANCES AND IN THE INTEREST OF JUSTICE, THE ADDITIONAL EVIDENCES FILED IN THE PAPER BOOK WHICH WILL BE USEFUL FOR ARRIVING AT A F AIR DECISION IN THE MATTER, HAVE TO BE ADMITTED. I, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR PASSING A FRESH ORDER AFTER EXAMINATION OF THE ADDITIONAL EVIDENCES FILED AND AFTER ALLOWING A DEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 6 TH OCTOBER, 2010. SD. (RAJENDRA SINGH) ACCOUNTANT MEMBER MUMBAI DATED THE 6 TH OCTOBER, 2010. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-24, MUMBAI 4. THE CIT(A)-XXIV, MUMBAI 5. THE DR SMC BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI