KINCHIT PRAVINCHANDRA DOSHI, MUMBAI V. ITO 25(2)(1), MUMBAI

ITA 4407/MUM/2013

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6861 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 31-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARIDR
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1); 68; 144

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NOS.4406 & 4407/MUM/2013 ASSESSMENT YEAR: 2008-09 SHRI KINCHIT PRAVINCHANDRA DOSHI, OFFICE NO.37/38, PANCHARATNA COMPANY OP. HGS LTD. OPP. RLY STN. ABOVE NATIONAL DAIRY, BHAYANDAR (EAST), THANE-401105 / VS. INCOME TAX OFFICER-25(2)(1), R. NO.604, C-11, 6 TH FLOOR, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400007 ( !' # /ASSESSEE) ( $ / REVENUE) P.A. NO.ADVPD2188C !' # / ASSESSEE BY NONE $ / REVENUE BY SHRI RAM TIWARI-DR % $& ' # ( / DATE OF HEARING : 06/06/2018 ' # ( / DATE OF PRONOUNCEMENT 06/06/2018 ITA NOS.4406 & 4407/MUM/2013 SHRI KINCHIT PRAVINCHANDRA DOSHI 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THESE TWO APPEALS ARE BY THE ASSESSEE AGAINST THE IMPUGNED ORDERS DATED 21/03/2013 & 22/03/2013 OF TH E LD. FIRST APPELLATE AUTHORITY, MUMBAI. 2. DURING HEARING, NONE WAS PRESENT FOR THE ASSESSEE, IN SPITE OF RECEIPT OF NOTICE ON 28/01/20 14. THESE APPEALS WERE FILED ON 31/05/2013 AND ON 25/03/2015, NOBODY APPEARED AND THE APPEALS ARE ADJOURNED TO 24/09/2015. REGISTERED AD NOTICES WERE ISSUED. ON 24/09/2015, THE ASSESSEE SOUGHT ADJOURNMENT, WHICH WAS GRANTED FOR 12/04/2016. ON 12/04/2016 AGAIN AT THE REQUEST OF THE ASSESSEE, THE APPEALS WERE ADJOURNED . AGAIN, ON 17/11/2016 AND 13/04/2017, THE APPEALS WERE ADJOURNED AT THE REQUEST OF THE ASSESSEE. ON 23/08/ 2017 AGAIN AT THE REQUEST OF THE ASSESSEE, THE APPEALS W ERE ADJOURNED. ON 01/05/2018 AND 06/06/2018 I.E. TODAY, NOBODY APPEARED FOR THE ASSESSEE, THEREFORE, WE HAV E NO OPTION BUT TO PROCEED EX-PARTE, QUA THE ASSESSEE AN D DISPOSE OF THESE APPEALS ON THE BASIS OF MATERIAL A VAILABLE ITA NOS.4406 & 4407/MUM/2013 SHRI KINCHIT PRAVINCHANDRA DOSHI 3 ON RECORD. SHRI RAM TIWARI, LD. DR, CONTENDED THAT EVEN BEFORE THE LD. ASSESSING OFFICER, NOBODY WAS PRESEN T AND ULTIMATELY, THE ASSESSMENT WAS FRAMED UNDER SECTION 144 OF THE ACT. THEREFORE, NO LENIENT VIEW MAY BE TAKEN AGAINST THE ASSESSEE. 2.1. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE F ACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIV ING INCOME FROM OTHER SOURCES, DECLARED INCOME OF RS.1,17,310/ -. SINCE, THE CASE OF THE ASSESSEE WAS SELECTED FOR SC RUTINY, THEREFORE NOTICE UNDER SECTION 143(2) AND 142(1) WE RE ISSUED TO THE ASSESSEE. AS PER THE ASSESSEE, DURING FINANCIAL YEAR 2010-11, THE RESIDENTIAL BUILDING WA S DEMOLISHED AND ALL THE RESIDENTS VACATED THEIR PREM ISES INCLUDING THE ASSESSEE. AS CLAIMED IN THE STATEMENT OF FACTS, NOTICES WERE NEVER SERVED UPON THE ASSESSEE. IT HAS BEEN FURTHER MENTIONED THAT THE LD. ASSESSING OFFIC ER MADE THE ADDITION ON THE BASIS OF BANK STATEMENT OBTAINE D FROM THE SAVING BANK ACCOUNT OF THE ASSESSEE AND THUS TH E ASSESSMENT SO FRAMED IS IN VIOLATION OF PRINCIPLE O F NATURAL JUSTICE AND CONSEQUENT ADDITION UNDER SECTION 68 WA S ITA NOS.4406 & 4407/MUM/2013 SHRI KINCHIT PRAVINCHANDRA DOSHI 4 WRONGLY MADE. WITHOUT GOING INTO MUCH DELIBERATION, WE FIND THAT THE ASSESSMENT WAS FRAMED UNDER SECTION 1 44 OF THE ACT AS THE ASSESSEE DID NOT APPEAR BEFORE THE L D. ASSESSING OFFICER. CONSIDERING THE TOTALITY OF FACT S, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE BECAUSE EVEN AS PER MANDATE OF ARTICLE-265 OF CONSTITUTION OF INDIA, ONLY DUE TAXES HAS TO BE LEVIED/COLLECTED. AT THE SAME TIME, THE INTEREST OF ASSESSEE AS WELL AS OF THE REVENUE HAS TO BE SAFEGUARDED. TH E ASSESSEE IS DIRECTED TO APPEAR BEFORE THE LD. ASSES SING OFFICER WITHIN ONE MONTH FROM THE RECEIPT OF THIS O RDER AND EXPLAIN THE FACTUAL MATRIX ALONG WITH SOURCE OF THE AMOUNT LYING IN THE BANK ACCOUNT OF THE ASSESSEE, WHICH WA S ADDED AS INCOME UNDER SECTION 68 OF THE ACT AS UNEXPLAINE D CASH CREDIT. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH NECESSARY EVIDENCE, IF ANY, TO SUBSTANTIATE HIS CLAIM. THE CASE OF THE ASSESSEE MA Y BE TAKEN UP, WHEN THE ASSESSEE APPROACHES THE OFFICE O F THE LD. ASSESSING OFFICER, AS DIRECTED ABOVE OR ON ANY CONVENIENT DATE MUTUALLY AGREED UPON BETWEEN THE ITA NOS.4406 & 4407/MUM/2013 SHRI KINCHIT PRAVINCHANDRA DOSHI 5 ASSESSEE AND THE LD. ASSESSING OFFICER. THUS, THE A PPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3. SO FAR AS, THE APPEAL IN ITA NO.4407/MUM/2013, IS CONCERNED, IT IS AN PENALTY AP PEAL UNDER SECTION 271(1)(C) OF THE ACT. SINCE, WE HAVE REMANDED THE QUANTUM APPEAL BACK TO THE FILE OF THE LD. ASSESSING OFFICER, THEREFORE, IN ALL FAIRNESS, THE PENALTY APPEAL ALSO NEEDS TO BE SENT TO THE FILE OF THE LD. ASSESSING OFFICER AS THE SAME WILL BE DEPENDENT UPON THE OUTC OME OF THE QUANTUM ADDITION. THUS, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 06/06/2018. SD/- (G. MANJUNATHA) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; - DATED : 06/06/2018 F{X~{T? P.S/. .. , ITA NOS.4406 & 4407/MUM/2013 SHRI KINCHIT PRAVINCHANDRA DOSHI 6 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./01 / THE APPELLANT 2. 2301 / THE RESPONDENT. 3. 4 4 % 5# , ( ./ ) / THE CIT, MUMBAI. 4. 4 4 % 5# / CIT(A)- , MUMBAI 5. 7$8 2# , 4 ./( . , % & / DR, ITAT, MUMBAI 6. 9! :& / GUARD FILE. / BY ORDER, 37/# 2# //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI