DEVENDRA C. VIBHAKAR, MUMBAI V. INCOME TAX OFFICER-25(1)(1), MUMBAI

ITA 4554/MUM/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8512 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 22-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Reopening of assessment; Unexplained cash credit; Unexplained investment; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 142(1); 68; 148

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) I.T.A. NO. 4554/MUM/2017 (ASSESSMENT YEAR 2007-08 ) SHRI DEVENDRA C. VIBHAKAR 101-B, RAMJAS CHSL DEVIDAS LANE, BORIVALI-W MUMBAI-400 103. PAN : AAAPV5079J VS . ITO -25(1)(1) MUMBAI ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI PARESH GOHIL DEPARTMENT BY MS. SMITA VERMA DATE OF HEARING 16.12.2020 DATE OF PRONOUNCEMENT 1.1.2021 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [IN SHORT LEAR NED CIT(A)] DATED 10.3.2015 PERTAINING ASSESSMENT YEAR 2007-08 WHEREI N LEARNED CIT(A) HAS DISMISSED THE APPEAL WITHOUT ANY DISCUSSION ON MERI TS BY SIMPLY NOTING THE GROUNDS AND OBSERVING AS UNDER :- THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 30.11.20 09 AT A TOTAL INCOME OF RS.11,73,710/- AS AGAINST THE RETURNED INCOME OF R S.1,73,710/-. THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY U/S 148 OF THE I.T. ACT AFTER RECORDING THE REASONS FOR RE-OPENING OF ASSESSMENT. NOTICE U/S 142(1) OF THE ACT WAS ISSUED ON 4.9.2012 AND 4.1.2013. THE AO RAISED THE ISSUE REGARDING UNPROVED LIABILIT Y, UNEXPLAINED CASH CREDIT U/S 68 AND UNEXPLAINED INVESTMENT. EXPLANATION OFFERE D OF THE ASSESSEE HAS NOT BEEN ACCEPTED BY THE AO AND THE ADDITION WAS MADE AGAINST WHICH THE ASSESSEE IS IN APPEAL. AFTER HAVING FILED THE APPEAL, HOWEVER, DESPITE FIXIN G THE CASE FOR HEARING ON 4 DIFFERENT OCCASIONS, NO CREDIBLE ARGUMENT/ EXPLANATION HAS BEEN PROVIDED BY THE ASSESSEE TO SUBSTANTIATE THE CLAIM IN RESPECT OF GRO UNDS OF APPEAL AND THEREFORE, THE ISSUE CANNOT BE TAKEN UP ON MERIT. IN THE LIGHT OF THE ABOVE FACTS, THE APPEAL IS DISMISSED. SHRI DEVENDRA C. VIBHAKAR 2 2. THIS APPEAL WAS EARLIER DISPOSED OF BY THIS TRIB UNAL VIDE ORDER DATED 7.11.2019, SUBSEQUENTLY VIDE MISCELLANEOUS APPLICAT ION ORDER DATED 3.7.2019, THE SAID ORDER WAS RECALLED. PURSUANT TO THE RECALL THE APPEAL HAS BEEN HEARD. 3. UPON HEARING BOTH THE COUNSEL AND PERUSED THE RE CORDS I FIND THAT IT IS INCUMBENT UPON LEARNED CIT(A) TO PASS AN ORDER ON T HE MERITS OF THE CASE AND NOT DISMISSED THE APPEAL VIRTUALLY FOR NON-PROSECUT ION. FOR THIS PROPOSITION I PLACE RELIANCE UPON THE FOLLOWING CASE LAWS :- CIT VS. PREMKUMAR ARJUNDAS LUTHRA-HUF (2017) 154 DT R 302(BOM) CIT VS. CHENNIAPPA MUDALIAR (1969) 74 ITR 1 (SC) 4. MOREOVER THE LACONIC AND NON-SPEAKING ORDER OF L EARNED CIT(A) IS NOT SUSTAINABLE. HON'BLE SUPREME COURT IN THE CASE OF S AHARA FINANCIAL CORPORATION LTD. VS. CIT (300 ITR 403) HAS HELD THA T RULE OF NATURAL JUSTICE ARE APPLICABLE TO ADMINISTRATIVE ORDERS ALSO. ACCOR DINGLY, IN THE INTEREST OF JUSTICE I REMIT THE ISSUE RAISED IN THE APPEAL TO T HE FILE OF LEARNED CIT(A). LEARNED CIT(A) IS DIRECTED TO CONSIDER THE ISSUE AF RESH AND PASS AN ORDER ON THE MERITS OF THE CASE AFTER GIVING THE ASSESSEE PR OPER OPPORTUNITY OF BEING HEARD. 5. LEARNED COUNSEL OF THE ASSESSEE HAS ALSO GIVEN U NDERTAKING THAT HE SHALL APPEAL BEFORE LEARNED CIT(A) SUO MOTO WITHIN TWO MONTHS OF THIS ORDER TO CANVAS THE APPEAL. 6. IN THE RESULT, THIS APPEAL BY THE ASSESSEE STAND S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED UNDER RULE 34(4) OF THE ITAT RULE S BY PLACING THE RESULT ON NOTICE BOARD ON 1.1.2021. SD/- (SHAMIM YAHYA) ACCOUNTANT MEMBER MUMBAI; DATED : 1/1/2021 SHRI DEVENDRA C. VIBHAKAR 3 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// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI