PRABHAKAR P. PUROHIT, MUMBAI V. ACIT CEN CIR 47, MUMBAI

ITA 4432/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9515 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 02-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Assessee Lawyers: G P MEHTA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI N.K. BILLAIYA (ACCOUNTANT MEMBER) ITA NOS.4431 & 4432/MUM/2011 ASSESSMENT YEARS: 2004-05 & 2005-06 PRABHAKAR P PUROHIT, 2 ND FLOOR, SATWANT VILLA AAREY ROAD, GOREGOAN(W), MUMBAI. PA NO.AENPP 7243 P ACIT, CENT. CIRCLE-47, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI G.P.MEHTA RESPONDENT BY: SHRI A.C.TEJPAL DATE OF HEARING: 10 .12.2012 DATE OF PRONOUNCEMENT: 10.12.2012 ORDER PER BENCH: THE ASSESSEE HAS FILED THESE TWO APPEALS FOR ASSES SMENT YEARS 2004-05 AND 2005-06 AGAINST TWO SEPARATE ORDERS BOTH DATED 20.1 .2011 OF LD CIT(A)-38, MUMBAI. 2. AT THE TIME OF HEARING, LD COUNSEL FOR ASSESSEE SUBMITTED THAT ADDITIONAL GROUNDS TAKEN BY THE ASSESSEE FOR BOTH THE ASSESSMENT YEAR S UNDER CONSIDERATION BEFORE LD CIT(A) VIDE LETTER DATED 29 TH JANUARY, 2009 HAVE NOT BEEN ADJUDICATED BY LD CIT( A), WHICH READ AS UNDER: 1. THE ASSESSMENT ORDER PASSED ULS.153A R.W.S. 144 OF THE I. T. ACT, 1961, IS AB-INITIO VOID, INASMUCH AS, AS NO RETURN OF INCOME WAS PRESCRIBED FOR THE ASSESSMENT YEAR UNDER APPEAL BY THE RULE MAKING AUTHORITY, THERE WAS NO BASIS AVAILABLE FOR COMPLET ION OF ASSESSMENT. 2. THE LEARNED ASSESSING OFFICER HAS GROSSLY ERRED IN PASSING ASSESSMENT ORDER U/S.153A R.WS, 144 OF THE I. T. ACT, 1961, DE TERMINING, INCOME AT RS.3,08,000/- FOR A.Y. 2004-05 AND (RS.30,88,000/- FOR A.Y. 2005-06) EVEN THOUGH THE APPELLANT WAS PRECLUDED FROM FILING RETURN OF INCOME, SAME NOT HAVING BEEN PRESCRIBED BY THE RULE MAKING AUTHORITY. ITA NOS.4431 & 4432/MUM/2011 ASSESSMENT YEARS: 2004-05 & 2005-06 2 3. THE ASSESSMENT ORDER PASSED U/S.153A R.W.S. 144 OF THE LT. ACT, I961 IS AB-INITIO VOID, INASMUCH AS, THE MATERIAL GATHER ED OR EVIDENCES COLLECTED DURING SEARCH & POST SEARCH INQUIRIES, WE RE NEVER MADE AVAILABLE TO THE APPELLANT, PRIOR TO USING THE SAM E FOR FRAMING THE ASSESSMENT. CONSEQUENTLY, THE IMPUGNED ASSESSMENT O RDER IS IN CLEAR CONTRADICTION TO THE PRINCIPLES OF NATURAL JUSTICE. 4. THE LEARNED ASSESSING OFFICER HAS GROSSLY ERRED IN ESTIMATING INCOME AT RS.3,088,000/- BEING 1 % OF DEPOSITS APPEARING IN T HE THIRD PARTYS BANK ACCOUNT, WITHOUT GIVING AN OPPORTUNITY OF BEING HEA RD ON THE ISSUE SPECIFICALLY. LD. A.R. SUBMITTED THAT ABOVE ADDITIONAL GROUNDS GO TO THE ROOT OF THE VALIDITY OF THE ASSESSMENT ORDERS AND, THEREFORE, THEY SHOULD HAVE BEEN DECIDED BEFORE CONSIDERING THE ADDITIONS MADE BY THE ASSESSING OFFICER. 3. LD CIT(DR) SUBMITTED THAT HE HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF LD CIT(A) TO CONSIDER AND DECIDE THE ADDITI ONAL GROUNDS TAKEN BEFORE HIM. 4. WE HAVE CONSIDERED SUBMISSIONS OF LD REPRESENTAT IVES OF PARTIES AND ORDERS OF AUTHORITIES BELOW. IT IS A FACT THAT THE ADDITIONA L GROUNDS GO TO THE VALIDITY OF THE ASSESSMENT ORDER. THEREFORE, WE SET ASIDE THE IMPU GNED ORDERS OF LD CIT(A) AND RESTORE THE SAME TO HIS FILE TO CONSIDER ADDITIONAL GROUNDS TAKEN BY THE ASSESSEE BEFORE HIM BY A SPEAKING ORDER AFTER GIVING REASONABLE OPP ORTUNITY OF HEARING TO BOTH PARTIES. 5. SINCE WE HAVE RESTORED THE MATTER TO THE FILE OF LD CIT(A), WE DO NOT CONSIDER IT PRUDENT TO DECIDE OTHER GROUNDS TAKEN BY THE ASSESS EE DISPUTING CONFIRMATION OF ADDITIONS MADE BY THE AO. 6. IN THE RESULT, BOTH THE APPEALS FILED BY ASSESSE E ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARIN G I.E. ON 10 TH DECEMBER, 2012 SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 10 TH DECEMBER, 2012 ITA NOS.4431 & 4432/MUM/2011 ASSESSMENT YEARS: 2004-05 & 2005-06 3 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),38, MUMBAI 4. COMMISSIONER OF INCOME TAX, C-IV , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH C MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI