VARSHA G SINGH, MUMBAI V. ITO 25(3)(4),

ITA 4564/MUM/2013

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8152 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 10-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Assessee Lawyers: BHUPENDRA SINGH
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence; Reasonable cause; Corroborative evidences
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN , ACCOUNTANT MEMBER ITA NO. 4564 / MUM/2013 ( ASSESSMENT YEAR : 20 06 07 ) VARSHA SINGH A 1, PADAM CHS LTD. NATAKWALA LANE, B/H FLAT NO.8 NR. TAHSILDAR OFFICE BORIVALI (W), MUMBAI 400 092 PAN AGTPS1933P . APPELLANT V/S INCOME TAX OFFICER WARD 25 ( 3 ) (4) , MUMBAI . RESPONDENT ASSESSEE BY : SHRI BHUPENDRA SINGH REVENUE BY : SHRI RAJEEV GUBGOTRA DATE OF HEARING 04 . 12 .2018 DATE OF ORDER 26.12.2018 O R D E R PER SAKTIJIT DEY, J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24.12.2012 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 35 , MUMBAI FOR THE ASSESSMENT YEAR 2006 - 07. 2 . THERE IS A DELAY OF 87 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING THE CAUSE OF DELAY. AFTER 2 VARSHA SINGH CONSIDERING THE SUBMISSIONS OF LEARNED AUTHORISED REPRESENTATIVE AND THE CONTENTS OF THE AFFIDAVIT FILED BY THE ASSESSEE, WE ARE SATISFIED THAT THE DELAY IN FILING THE PRESENT APPEAL IS DUE TO REASONABLE CAUSE. ACCORDINGLY, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING ON MERITS. 3 . THOUGH, THE ASSESSEE HAS RAISED VARIOUS GROUNDS, HOWEVER, THE BASIC GRIEVANCE OF THE ASSES SEE IS AGAINST THE EX - PARTE ORDERS PASSED BY THE DEPARTMENTAL AUTHORITIES WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4 . BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER DISPUTE ASSESSEE FILED H ER RETURN OF INCOME ON 03 .01. 2007 DECLARING TOTAL INCOME OF ` 1,30,706. DURING THE ASSESSMENT PROCEEDINGS, AS OBSERVED BY THE ASSESSING OFFICER, THOUGH, HE ISSUED NOTICES UNDER SECTION 142(1) AND 143(3) OF THE INCOME TAX ACT, 1961 ( FOR SHORT THE ACT ) CALLING FOR VARIOUS INFORMATION AND DOCUMENTS HOWEVER NEITHER THE ASSESSEE RESPONDED TO SUCH NOTICES NOR FILED ANY DETAILS BEFORE HIM. FROM THE INFORMATION AVAILABLE ON RECORD THE ASSESSING OFFICER FOUND THAT IN THE RELEVANT PREVIOUS YEAR ASSESSEE HAD DEP OSITED AN AMOUNT OF ` 14,35,188 IN HDFC BANK. FURTHER HE FOUND THAT THE ASSESS EE HAS MADE CASH DEPOSITS OF ` 3,92,500 IN IDBI BANK ACCOUNT. ALLEGING THAT THE ASSESSEE FAILED TO PROVE THE NATURE AND SOURCE OF DEPOSITS MADE INTO THE BANK ACCOUNTS, 3 VARSHA SINGH THE ASSESS ING OFFICER TREATED THE AGGREGATE AMOUNT OF ` 18,27,680 AS UNEXPLAINED CASH CREDIT AND ADDED BACK TO THE INCOME OF THE ASSESSEE. IN ADDITION TO THE AFORESAID AMOUNT THE ASSESSING OFFICER ADDED BACK AN AMOUNT OF ` 4,97,892 ON ACCOUNT OF DIFFERENCE IN TOTAL DEPOSITS IN CHEQUE AND INCOME CREDITED. IN THE PROCESS, HE DETERMINED THE TOTAL INCOME AT ` 24,64,900. BEING AGGRIEVED WITH THE ASSESSMENT ORDER SO PASSED ASSESSEE PREFERRED APPEAL BEFORE LEARNED COMMISSIONER (APPEALS). SINCE, BEFORE LEARNED COMMISSIONER ( APPEALS) ALSO NO ONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT THE CASE HE SUSTAINED THE ADDITIONS MADE BY THE ASSESSING OFFICER. 5 . THE LEARNED AUTHORISED REPRESENTATIVE EXPLAINING THE REASON FOR NON - APPEARANCE BEFORE THE DEPARTMENTAL AUTHORITIES SUBMITTED, THE ASSESSEE STAYS IN UNITED KINGDOM AND HAS ENTRUSTED THE TAX MATTERS TO A CHARTERED ACCOUNTANT. HE SUBMITTED, DUE TO COMMUNICATI ON GAP NO ONE APPEARED BEFORE THE DEPARTMENTAL AUTHORITIES TO REPRESENT THE CASE. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED, THE ASSESSEE IS IN POSSESSION OF ALL SUPPORTING EVIDENCES TO NOT ONLY PROVE THE NATURE AND SOURCE OF DEPOSITS MADE IN THE BAN K ACCOUNTS BUT ALSO TO PROVE THAT THE OTHER ADDITIONS MADE BY THE ASSESSING OFFICER IS NOT SUSTAINABLE. IN THIS CONTEXT HE WANTED TO REFER TO THE ADDITIONAL EVIDENCES SUBMITTED IN THE PAPER BOOK. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED, GIVEN AN OP PORTUNITY ASSESSEE WILL BE ABLE 4 VARSHA SINGH TO PROVE ALL THE TRANSACTIONS MADE IN THE BANK ACCOUNT AND CLEAR ALL DOUBTS OF THE ASSESSING OFFICER. THEREFORE, HE SUBMITTED, THE ISSUES MAY BE RESTORED BACK TO THE ASSESSING OFFICER FOR THE FRESH ADJUDICATION. 6 . THE LEARNE D DEPARTMENTAL REPRESENTATIVE, THOUGH, RELIED UPON THE OBSERVATIONS OF THE COMMISSIONER (APPEALS), HOWEVER, HE SUBMITTED, A LAST OPPORTUNITY CAN BE GIVEN TO THE ASSESSEE TO PROVE HER CASE. 7 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECO RD. NO DOUBT, ASSESSEE HAS FAILED TO APPEAR BEFORE THE ASSESSING OFFICER TO PROVE THE NATURE AND SOURCE OF DEPOSITS MADE INTO THE BANK ACCOUNTS. EVEN, THE OTHER DIFFERENCES/DISCREPANCIES IN INCOME WERE NOT RECONCILE BY PRODUCING SUPPORTING EVIDENCE AS THE ASSESSEE FAILED TO APPEAR BEFORE THE ASSESSING OFFICER. THERE WAS NO CHANGE IN SITUATION EVEN BEFORE LEARNED COMMISSIONER (APPEALS). HOWEVER, IT IS THE SUBMISSION OF THE LEARNED AUTHORISED REPRESENTATIVE BEFORE US, DUE TO THE FACT THAT ASSESSEE STAYS IN UK AND THERE WAS A COMMUNICATION GAP BETWEEN HER AND THE COUNSEL APPOINTED TO HANDLE HER CASES, THE PROCEEDINGS BEFORE THE DEPARTMENTAL AUTHORITIES WENT UNREPRESENTED. IT HAS ALSO BEEN SUBMITTED BEFORE US THAT THE ASSESSEE IS NOW IN POSSESSION OF ALL SUPPORT ING DOCUMENTARY EVIDENCE TO PROVE OUR CASE AND GIVEN AN OPPORTUNITY ASSESSEE WILL REMOVE ALL DOUBTS AND 5 VARSHA SINGH SUSPICIONS ENTERTAINED BY THE ASSESSING OFFICER. THOUGH, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD HAVE BEEN MORE VIGILANT WITH REGARD TO HER TAX MATT ERS, HOWEVER, TAKING A LENIENT VIEW WE ARE INCLINED TO ALLOW ONE MORE OPPORTUNITY TO THE ASSESSEE TO PROVE HER CASE BEFORE THE ASSESSING OFFICER WITH REGARD TO THE DISPUTED ADDITION THROUGH PROPER DOCUMENTARY EVIDENCE. NEEDLESS TO MENTION, THE ASSESSING OF FICER MUST AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUES ARISING IN THE PRESENT APPEAL AFTER CONSIDERING ALL THE EVIDENCES FILED BY THE ASSESSEE INCLUDING THE ADDITIONAL EVIDENCES FILED BEFORE US. AT THE SAME TIME, IT I S MADE CLEAR, IN CASE OF ANY FURTHER DEFAULT ON THE PART OF THE ASSESSEE TO EITHER REPRESENT THE CASE BEFORE THE ASSESSING OFFICER OR TO COMPLY TO THE QUERIES MADE BY HIM, THE ASSESSING OFFICER WILL BE AT LIBERTY TO DECIDE THE ISSUES ON THEIR OWN MERITS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND IN ACCORDANCE WITH LAW. WITH THE AFORESAID OBSERVATIONS, GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT ASSESSEE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT O N SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 26.12.2018 6 VARSHA SINGH COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI