NARESH KUMAR SALERAJ PARMAR, MUMBAI V. ITO WARD-18(3)(3), MUMBAI

ITA 4413/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4987 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 27-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Opportunity of being heard; Accommodation entries; Set aside
• Section: 271(1)(c); 142(1); 143(1); 143(2); 13; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM / I .T.A. NO. 4413 /MUM/201 9 ( / ASSESSMENT YEAR: 20 04 - 05 ) NARESH KUMAR SALERAJ PARMAR B - 101, KALPTARU RESIDENCY - SION MUMBAI - 400022 . / VS. ITO WD - 18(3)(3) DEPUTY COMMISSIONER OF INCOME TAX 26(2) KAUTILYA BHAVAN, NEXT TO VIDESH BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051. ./ ./ PAN/GIR NO. : AAAPP3423G ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 28 / 01 /202 1 / DATE OF PRONOUNCEMENT : 07 /04 /2021 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 26 .0 4 .201 9 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 33 , MUMBAI [HEREINAFTE R REFERR ED TO AS THE CIT(A)] RELEVANT TO THE A.Y . 2004 - 05. 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE LD. CIT(A) ERRED BY CONFIRMING THE PENALTY OF RS.3,24,922/ - WITHOUT CONSIDERING T HE SUBMISSION MADE THROUGH E - PRO CEEDING AND ALSO ON OFFICIA L MAIL. ASSESSEE BY : NONE REVENUE BY: SHRI THARIAN OOMMEN ( D R) ITA NO. 4413 / M/201 9 A.Y.2004 - 05 2 2. THE LD. CIT(A) ALSO ERRED BY CONFIRMING THE SUBJECT PENALTY U/S 271(1)(C) ON QUANTUM ADDITIONS, NOT SUSTAINED BY HONBLE ITAT 3. YOUR APPELLANT PRAYS TO ADD TO ALTER TO AMEND ANY OF THE GROUNDS OF APPEAL. 4 . THE BRIEF FACTS OF THE CASE ARE TH AT THE ASSESSEE FILED ITS RETURN OF INCOME ON 12 . 10 .20 04 DECLARING TO TAL INCOME TO THE TUNE OF RS .1,42,825 / - . THEREAFTER, THE RETURN WAS PROCESSED U/S 143(1) OF THE I. T. ACT, 1961 ON 19.03.2005 ACCEPTING THE RETURNED INCOME . THE NOTIC E U/S 143(2) OF THE A CT DATED 13 .0 6 .201 1 WAS ISSUED AND SERVED UPON THE ASSESSEE AND NOTICE U/S 142(1) OF THE ACT DATED 09.06.2011 WAS ISSUED AND SERVED UPON THE ASSESSEE. IN THIS CASE, THE INFORMATION RECEIVED FROM THE DY. DIRECTOR OF INCOME TAX (INV.), UNIT - 1(4), MUMBAI, THA T A SEARCH & SEIZURE ACTION U/S 132 OF THE I. T. ACT WAS CONDUCTED IN THE CASE OF M/S. MAHASAGAR SECURITIES PVT. LTD. ON 25.11.2009. THE INFORMATION RECEIVED THAT THE ASSESSEE THROUGH M/S. GOLDSTAR FINVEST PVT. LTD. HAD TAKEN THE ACCOMMODATION ENTRIES FOR BOGUS LONG TERM CAPITAL GAIN OF RS.9,60,503. 90/ - (SAY 9,60,504/ - ). AFTER THE R EPLY OF THE ASSESSEE, THE AO RAISED THE ADDITION OF TH E TOTAL BOGUS PURCHASE OF RS.9,60,504/ - U/S 69 OF THE I. T. ACT. WHICH WAS ADDED TO THE INCOME OF THE ASSESSEE. THE TOTAL IN COME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.20,63,830/ - . FEELING AGGRIEVED, THE ASSESSEE AN APPEAL BEFORE THE CIT(A) WHO CONFIRMED THE ORDER OF THE AO , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 5 . WE HAVE HEARD THE ARGUMENT A DVANCED BY THE LD. REPRESENTATIVE OF THE DEPARTMENT AND HAVE GONE THROUGH THE CASE CAREFULLY . IN FACT, THE LD. REPRESENTATIVE OF THE ASSESSEE DID NOT APPEAR BEFORE US. ON APPRAISAL OF THE ORDER PASSED BY THE CIT(A), WE NOTICED THAT THE CIT(A) HAS DECIDED T HE ITA NO. 4413 / M/201 9 A.Y.2004 - 05 3 MATTER OF CONTROVERSY IN ABSENCE OF THE ASSESSEE AND WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW, THEREFORE, THE FINDING OF THE CIT(A) IS NOT JUSTIFIABLE, HENCE, IS LIABLE TO BE SET ASIDE IN THE INTEREST OF JUSTIC E. A PROPER AND REASONABLE OPPORTUNITY IS REQUIRED TO BE GIVEN TO THE ASSESSEE BEFORE THE DECIDING THE MATTER OF CONTROVERSY IN ACCORDANCE WITH LAW. 6 . FOR THIS PROPOSITION WE PLACED RELIANCE UPON THE FOLLOWING CASE LAWS. ( 1 ) CIT VS. PREMKUMAR ARJUNDAS LUTHRA (HUF) (2017) 154 DTR (BOM) 302 ( 2 ) CIT VS. S CHENNIAPPA MUDALIAR (1969) 74 ITR 1 (SC) 7 . THEREFORE, IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, THEREFORE, WE SET ASIDE THE FIN DING OF THE CIT(A) ON ALL THE ISSUES AND RESTORED THE MATTER BEFORE THE CIT(A) TO DECIDE THE MATTER AFRESH BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON 07 / 04 / 2021 SD/ - SD/ - ( M ANOJ KUMAR AGGARWAL) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 07 /04 / 2020 VIJAY PAL SINGH/SR. PS ITA NO. 4413 / M/201 9 A.Y.2004 - 05 4 / 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