SANJAY RAJARAM SONAWANE , MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX-10(3), MUMBAI

ITA 4644/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3796 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 28-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Opportunity of being heard
• Section: 143(3); 133A; 148

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL G BENCH MUMB AI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI MANOJ KUAMR AGGARWAL, ACCOUNTANT MEMBER ITA NO. 4644/MUM/2017 (ASSESSMENT YEAR 2008-09 ) ITA NO. 4645/MUM/2017 (ASSESSMENT YEAR 2009-10 ) SANJAY RAJARAM SONAWANE SHOP NO.4, GURU ASHISH, MAHATMA PHULE ROAD, PANVEL, DISTRICT-RAIGAD-410206. PAN: AEGPS3334B VS. DCIT-10(3) ROOM NO. 451, 4 TH FLOOR, AAYAKAR BHAVAN, MUMBAI- 400020. APPELLANT RESPONDE NT APPELLANT BY : NONE RESPONDENT BY : SHRI CHAUDHARY ARUN KUMAR SINGH (DR) DATE OF HEARING : 29.01.2019 DATE OF PRONOUNCEMEN T : 29.01.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS SET OF TWO APPEALS BY ASSESSEE ARE DIRECTED AG AINST THE ORDERS OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-24, MU MBAI, BOTH DATED 16 MARCH 2017 FOR ASSESSMENT YEAR 2008-09 AND 2009- 10. IN BOTH THE APPEALS THE ASSESSEE HAS RAISED CERTAIN COMMON GROU NDS OF APPEAL. THUS, BOTH THE APPEALS WERE CLUBBED, HEARD TOGETHER AND A RE DECIDED BY COMMON ORDER. FOR APPRECIATION OF FACT THE APPEAL FOR ASSE SSMENT YEAR 2008-09 IS TREATED AS LEAD CASE. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS AN IND IVIDUAL FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 ON 31 ST JULY 2009 DECLARING TOTAL ITA N O. 4644 & 4645/MUM/2017- SANJAY RAJARAM SONAWANE 2 INCOME OF RS.7,44,670/-. A SURVEY ACTION UNDER SECT ION 133A WAS CONDUCTED AT THE BUSINESS PREMISES OF ASSESSEE ON 1 9 TH NOVEMBER 2010. ON THE BASIS OF SURVEY ACTION THE ASSESSMENT FOR THE Y EAR CONSIDERATION WAS REOPENED UNDER SECTION 147. NOTICE UNDER SECTION 14 8 DATED 28 TH FEBRUARY 2013 WAS SERVED UPON THE ASSESSEE. IN RESPONSE TO T HE NOTICE UNDER SECTION 148 THE ASSESSEE CONTENDED THAT RETURN OF INCOME AL READY FILED UNDER SECTION 139(1) MAY BE TREATED AS RETURN FILED IN PURSUANCE OF NOTICE UNDER SECTION 148. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON 28-03-2014 UNDER SECTION 143(3) READ WITH SECTION 147. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER MADE ADDITION ON ACCOUNT OF UN EXPLAINED INVESTMENT OF RS. 20 LACKS IN NEELKANTH DARSHAN, UNEXPLAINED I NVESTMENT OF RS. 95 LACKS IN SHOPS IN NEELKANTH DARSHAN, UNEXPLAINED C ASH PAYMENT OF RS.2.65 LACKS, AND DEEMED RENT UNDER SECTION 24(3) OF RS. 1 .35 LAKH. ON APPEAL BEFORE LEARNED COMMISSIONER (APPEALS) ALL THE ADDIT ION WAS CONFIRMED BY DISMISSING THE APPEAL OF ASSESSEE EX-PARTE. THUS, F URTHER AGGRIEVED BY THE ORDER OF COMMISSIONER (APPEALS) THE ASSESSEE HAS FI LED PRESENT APPEAL BEFORE US. 3. NONE APPEARED ON BEHALF OF ASSESSEE DESPITE THE SER VICE OF NOTICE OF HEARING OF THE APPEAL. ON PERUSAL OF RECORD, WE FIND THAT O N LAST DATE OF HEARING ADJOURNMENT WAS SOUGHT ON BEHALF OF ASSESSEE AND TH E APPEALS WERE FIXED/ ADJOURNED FOR TODAY. TODAY, NONE APPEARED ON BEHALF OF ASSESSEE; THEREFORE, ITA N O. 4644 & 4645/MUM/2017- SANJAY RAJARAM SONAWANE 3 WE LEFT NO OPTION EXCEPT TO HEAR THE SUBMISSION OF LEARNED DR FOR REVENUE AND TO DECIDE THE APPEAL ON THE BASIS OF MATERIAL A VAILABLE ON RECORD. 4. WE HAVE HEARD THE SUBMISSION OF LEARNED DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LEARNED DR FO R THE REVENUE SUPPORTED THE ORDER OF LOWER AUTHORITIES. THE LEARNED DR FURT HER SUBMITS THAT ASSESSEE IS HABITUAL DEFAULTER IN NOT MAKING AN APPEARANCE A ND TO FURNISH NECESSARY DETAILS AND EVIDENCES BEFORE THE AUTHORITIES CONCER NED. THE ATTITUDE OF THE ASSESSEE BEFORE THE ASSESSING OFFICER WAS NON COOPE RATIVE AS WELL AS HE DIDNT APPEAR BEFORE THE FIRST APPELLATE AUTHORITY, DESPITE GIVING SUFFICIENT OPPORTUNITY. THE LEARNED DR PRAYED TO CONFIRM THE O RDER OF LEARNED COMMISSIONER (APPEALS) ON ALL THE ADDITIONS AND TO DISMISS THE APPEAL. 5. WE HAVE CONSIDERED THE SUBMISSION OF LEARNED DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FIRST GROUND OF APPEAL RELATES TO PASSING THE IMPUGNED ORDER BY LEARNED COMMISSIONER (APPEALS) WITHOUT GIV ING ADEQUATE THE OPPORTUNITY OF BEING HEARD. WE HAVE NOTED THAT THE ASSESSEE FILED APPEAL BEFORE THE LEARNED COMMISSIONER APPEAL ON 22 ND OF APRIL 2014. THE APPEAL OF ASSESSEE WAS DISMISSED ON 16 TH MARCH 2017. PERUSAL OF IMPUGNED ORDER REVEALS THAT THE LEARNED COMMISSIONER (APPEALS) REC ORDED THAT CASE HAS BEEN POSTED SEVERAL OCCASIONS FOR HEARING. AS THE A SSESSEE IS NOT RECEIVING THE NOTICE AND NOT COMPLYING WITH THE APPEAL PROCEE DING, FINAL OPPORTUNITY GIVEN BY A NOTICE SENT TO BE SERVED THROUGH ASSESSI NG OFFICER . THE LEARNED COMMISSIONER (APPEALS) FURTHER OBSERVED THAT DESPIT E GIVING SEVERAL ITA N O. 4644 & 4645/MUM/2017- SANJAY RAJARAM SONAWANE 4 OPPORTUNITIES AND SERVING NOTICE THROUGH ASSESSING OFFICER THE ASSESSEE NEITHER APPEARED NOR SHOWN ANY INTEREST TO PURSUE A ND PROSECUTE THE APPEAL. THE LEARNED COMMISSIONER (APPEALS) DISMISSED THE AP PEAL OF THE ASSESSEE WITHOUT IT ON MERIT. 6. WE HAVE NOTED THAT LEARNED COMMISSIONER (APPEALS) H AS NOT RECORDED HIS SATISFACTION FOR WHICH DATES THE APPEAL WAS FIXED F OR HEARING, WHEN THE NOTICES WERE SERVED AND THE MANNER IN WHICH THE NOT ICES WERE SERVED UPON THE ASSESSEE. THE LEARNED COMMISSIONER (APPEALS) DE CIDED THE APPEAL BY PLACING RELIANCE ON THE DECISION OF MULTIPLAN INDIA PRIVATE LTD (38 ITD 320). IN OUR VIEW THE ASSESSEE WAS NOT GRANTED SUFF ICIENT AND FAIR OPPORTUNITY OF HEARING DURING THE FIRST APPELLATE S TAGE. THEREFORE, WE DEEM IT APPROPRIATE TO RESTORE THE APPEAL TO THE FILE OF LEARNED COMMISSIONER (APPEALS), WITH THE DIRECTION TO DECIDE ALL THE ISS UES RAISED BY ASSESSEE ON MERIT IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT LEARNED COMMISSIONER (APPEALS) SHALL PROVIDE SUFFICIENT OPPORTUNITY OF H EARING BEFORE DECIDING THE APPEAL ON MERIT. THE ASSESSEE IS ALSO DIRECTED TO APPEAR AS AND WHEN THE APPEAL IS FIXED BY LEARNED COMMISSIONER (APPEALS) A ND TO PROVIDE ALL NECESSARY INFORMATION, DETAILS AND EVIDENCES TO SUB STANTIATE HIS CONTENTION IN SUPPORT OF VARIOUS GROUNDS OF APPEAL RAISED BY H IM. THE ASSESSEE IS FURTHER DIRECTED NOT TO SEEK ANY ADJOURNMENT WITHOU T ANY VALID REASONS. 7. IN THE RESULT GROUND NUMBER ONE OF THE APPEAL IS AL LOWED. ITA N O. 4644 & 4645/MUM/2017- SANJAY RAJARAM SONAWANE 5 8. AS WE HAVE ALLOWED THE GROUND NO.1 RAISED BY THE AS SESSEE AND RESTORED ALL THE GROUNDS OF APPEAL TO THE FILE OF COMMISSIONER ( APPEALS) TO DECIDE ALL THE ISSUES / GROUNDS OF APPEAL ON MERIT AND THEREFO RE THE DISCUSSION ON OTHER GROUNDS OF APPEAL HAVE BECOME ACADEMIC. 9. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 4645/MUM/2017 APPEAL FOR AY 2009-10 10. WE HAVE NOTED THAT THE FACTS FOR THE YEAR UNDER CO NSIDERATION ARE SIMILAR AS OF EARLIER YEAR; THE ASSESSEE HAS RAISED CERTAIN CO MMON GROUNDS OF APPEALS. THE ASSESSEE HAS RAISED GROUND NO. 1 THAT THE LEARN ED COMMISSIONER (APPEALS) NOT GRANTED SUFFICIENT OPPORTUNITY OF HEA RING WHILE DECIDING THE APPEAL, WHICH IS IDENTICAL GROUND OF APPEAL RAISED BY ASSESSEE IN APPEAL FOR AY 2008-09, WHICH WE HAVE ALREADY RESTORED TO THE F ILE OF LEARNED COMMISSIONER (APPEALS), THEREFORE FOLLOWING THE PRI NCIPLE OF CONSISTENCY, THE APPEAL FOR THE YEAR UNDER CONSIDERATION IS ALSO RESTORED TO THE FILE OF COMMISSIONER (APPEALS) WITH SIMILAR DIRECTION. 11. IN THE RESULT THIS APPEAL OF ASSESSEE IS ALSO ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 29 TH JANUARY 2019. SD/ SD/- MANOJ KUAMR AGGARWAL PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 29.01.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT ITA N O. 4644 & 4645/MUM/2017- SANJAY RAJARAM SONAWANE 6 5. DR G BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI