ATUL PAWAR, PUNE V. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 6(4), MUMBAI

ITA 4519/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0919 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MICHAEL JERALD
• Keywords: Unexplained investment; Source of fund; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO. 4519/MUM/2017 ASSESSMENT YEAR : 2009-10 ATUL PAWAR, 582 PANMALA, B-17, KUMAR ASHIYANA SINHAGAD ROAD, PUNE [PAN : AJDPP2842F] VS. THE ASST.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-6(4), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANUJ KISNADWALA, AR RESPONDENT BY : SHRI S.MICHAEL JERALD, DR DATE OF HEARING : 19-12-2019 DATE OF PRONOUNCEMENT : 20-12-2019 O R D E R PER VIKAS AWASTHY, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-54, MUMBA I, DATED 20-02-2017 FOR THE AY.2009-10. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECOR DS ARE: THE ASSESSEE IS A SALARIED EMPLOYEE. THE ASSES SEE FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 31-07-2009 DECLARING TOTAL INCOME AT RS.15,94,840/-. A SEARCH ACTION U/S.132 OF THE INCOME TAX ACT, 1961 (HER EIN AFTER REFERRED TO AS THE ACT) WAS CARRIED OUT IN THE CASE OF ITA NO. 4519/MUM/2017 : 2 : ASSESSEE. DURING SEARCH OPERATION, FIXED DEPOSITS AGGREGATING TO RS.47,50,000/- WERE FOUND. THE ASSESS ING OFFICER (AO) VIDE ORDER DT.29-12-2010 PASSED U/S.143 (3) OF THE ACT, MADE ADDITION OF THE SAME AS UN-EXPLAINED INVES TMENT U/S.69 OF THE ACT. AGGRIEVED AGAINST THE ASSESSMENT ORDER, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). 3. DURING THE FIRST APPELLATE PROCEEDINGS, THE ASSESSE E FILED ADDITIONAL EVIDENCES. THE CIT(A) SOUGHT REPORT FROM THE AO ON ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. THE ASSES SEE FAILED TO APPEAR BEFORE THE AO IN REMAND PROCEEDINGS, DESPIT E SERVICE OF NOTICES. THE CIT(A) REJECTED ADDITIONAL EV IDENCES FILED BY THE ASSESSEE AND CONFIRMED THE ADDITION OF RS.47,50,000/-. HENCE, THE PRESENT APPEAL BY THE ASSE SSEE. 4. SHRI ANUJ KISNADWALA, APPEARING ON BEHALF OF THE ASSESSEE, SUBMITTED THAT THE ASSESSEE HAS FILED ADDITION AL EVIDENCES BEFORE THE CIT(A) IN THE FORM OF BANK STATE MENTS AND BALANCE SHEET OF THE FAMILY MEMBERS TO SUBSTANTIATE THE SOURCE OF FUNDS FOR FIXED DEPOSITS UN-EARTHED DURING SEARCH. ADMITTEDLY, NOTICE OF HEARING IN REMAND PROCEEDINGS W ERE RECEIVED BY THE ASSESSEE. HOWEVER, DUE TO SOME MISUNDERSTANDING BETWEEN THE ASSESSEE AND THE CHARTERE D ACCOUNTANT, REPRESENTING THE ASSESSEE BEFORE TAX AUTHORITI ES, NO ONE COULD APPEAR BEFORE THE AO TO EXPLAIN THE ADDITI ONAL EVIDENCES FILED. ON THE BASIS OF REMAND REPORT, THE C IT(A) HAS REJECTED THE ADDITIONAL EVIDENCES. THE LD.AR PRAYED TH AT IF AN ITA NO. 4519/MUM/2017 : 3 : OPPORTUNITY IS GRANTED, THE ASSESSEE WOULD APPEAR BEFO RE THE CIT(A) AND EXPLAIN THE ADDITIONAL EVIDENCES. 5. AU CONTRAIRE SHRI S.MICHAEL JERALD, REPRESENTING THE DEPARTMENT, VEHEMENTLY DEFENDED THE IMPUGNED ORDER AN D PRAYED FOR DISMISSING THE APPEAL OF ASSESSEE. THE L D.DR SUBMITTED THAT FIXED DEPOSITS FOUND DURING SURVEY WERE N OT DISCLOSED BY THE ASSESSEE IN HIS RETURN OF INCOME. BUT FOR SURVEY, THESE UNEXPLAINED INVESTMENTS WOULD NOT HAVE C OME TO THE LIGHT AND WOULD HAVE ESCAPED TAX NET. 6. WE HAVE HEARD REPRESENTATIVES OF RIVAL SIDES AND H AVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE SHORT PRAYER OF THE ASSESSEE IS THAT THE MATTER MAY BE REMITTED TO THE FILE OF CIT(A) TO RE-CONSIDER ADDITIONAL EVIDENCES FILED B Y THE ASSESSEE, AS THEY ARE VITAL DOCUMENTS IN EXPLAINING SO URCE OF INVESTMENTS IN THE FIXED DEPOSITS. IT IS AN UNDISPUTED F ACT THAT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE WERE FORWARDED BY THE CIT(A) TO AO FOR HIS COMMENTS. THE A O IN ORDER TO SEEK EXPLANATION ON ADDITIONAL EVIDENCES, THE AO HAD SUMMONED THE ASSESSEE. HOWEVER, THE ASSESSEE FAILED TO APPEAR BEFORE THE AO, DESPITE SERVICE OF NOTICES. TAKING INTO CONSIDERATION ENTIRETY OF FACTS, WE ARE OF CONSIDERED VIEW THAT ONE MORE OPPORTUNITY BE GIVEN TO TH E ASSESSEE TO EXPLAIN THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE BEFORE THE CIT(A). WE ALSO OBSERVE THAT THERE WAS NEGLIGENCE ON THE PART OF ASSESSEE IN NOT APPEARING BE FORE THE AO IN REMAND PROCEEDINGS IN THE FIRST ROUND. HENCE , IT IS A FIT CASE FOR LEVY OF COST ON THE ASSESSEE FOR HOLDING THE ITA NO. 4519/MUM/2017 : 4 : GOVERNMENT MACHINERY AND FOR DISRESPECTING THE QUASI- JUDICIAL PROCESS. THE APPEAL OF ASSESSEE IS THUS ALL OWED SUBJECT TO COST RS.20,000/-. 7. THE COST SHALL BE PAID BY THE ASSESSEE WITHIN A PER IOD OF ONE MONTH FROM THE DATE OF RECEIPT OF THIS ORDER IN ACC ORDANCE WITH RULE 32A(2) OF THE ITAT RULES, 1963. THE ASSESS EE SHALL FURNISH PROOF OF DEPOSIT OF THE COST TO THE CIT(A). UPO N FURNISHING THE EVIDENCE OF DEPOSIT OF COST, THE CIT(A) SHALL DENOVO DECIDE THE ISSUE AFTER ALLOWING REASONABLE OPPORTUNIT Y OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 8. IT IS ALSO MADE CLEAR THAT IF THE ASSESSEE FAILS TO DEPOSIT THE COST IN THE MANNER AND TIME PRESCRIBED ABOVE, THE AP PEAL OF ASSESSEE SHALL BE DEEMED TO BE DISMISSED. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES, IN TERMS AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY THE 20 TH DAY OF DECEMBER, 2019 SD/- SD/- (MANOJ KUMAR AGGARWAL) (VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER /MUMBAI; /DATED : 20-12-2019 TNMM ITA NO. 4519/MUM/2017 : 5 : / COPY OF THE ORDER FORWARDED TO : 1. !' / THE APPELLANT 2. #!' / THE RESPONDENT 3. $ % ( ) / THE CIT(A), MUMBAI 4. $ % / CIT, MUMBAI 5. ()* +, , $ .+, $/ , / DR, ITAT, MUMBAI 6. *012 / GUARD FILE $ / BY ORDER, # //TRUE COPY// / $ (DY./ASST. REGISTRAR) $ .+, $/, / ITAT, MUMBAI