RAJENDRA K. GANDHI, MUMBAI V. ITO WD 15(2)(1), MUMBAI

ITA 4779/MUM/2010

• Counselvise Citation: 477919914 RSA 2010
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 09-06-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: REEPAL G TRALSHAWALA
• Assessee Lawyers: G K NAIR
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 142(1); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND B.RAMAKOTAIAH (A .M ) ITA NO.4779/MUM/2010 (ASSESSMENT YEAR:2006-07) SHRI RAJENDRA K.GANDHI, D/5, GREEN PARK, OLD NAGARDAS ROAD, ANDHERI (EAST), MUMBAI-400069. PAN: AHEPG0311M INCOME TAX OFFICER WARD 15(2)(1), MATRU MANDIR, NANA CHOWK, MUMBAI-400007 APPELLANT V/S RESPONDENT DATE OF HEARING : 17.8.2011 DATE OF PRONOUNCEMENT : APPELLANT BY : SHRI REEP AL G.TRALSHAWALA RESPONDENT BY : SHRI G.K.NA IR O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26.3.2010 PASSED BY THE LD .CIT(A) FOR THE ASSESSMENT YEAR 2006-07. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE IS AN INDIVIDUAL DERIVES INCOME FROM BUSINESS FROM PR OPRIETARY CONCERN M/S ROYAL TEXTILES TRADING, FILED RETURN D ECLARING TOTAL INCOME AT RS.1,46,523/-. THE AO AFTER PROCES SING OF THE RETURN UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) SELECTED THE CASE FOR SCRUTINY A ND ACCORDINGLY ISSUED NOTICES UNDER SECTIONS 143(2) AN D 142(1) ALONG WITH THE QUESTIONNAIRE. IN ABSENCE OF ANY COM PLIANCE, ITA NO.4779/MUM/2010 (ASSESSMENT YEAR:2006-07) 2 THE AO ON THE BASIS OF RELEVANT MATERIAL AVAILAB LE ON RECORD TO THE BEST OF HIS JUDGMENT COMPLETED THE AS SESSMENT EX-PARTE UNDER SECTION 144 OF THE ACT AT AN INCOME OF RS.19,29,910/- VIDE ORDER DATED 23.12.2008. 3. ON APPEAL, BEFORE THE LD.CIT(A), THE LD. CIT(A) FIXED THE DATE OF HEARING FOR 25.3.2010. IN THE ABSENCE O F ANY COMPLIANCE BY THE ASSESSEE, THE LD. CIT(A) BY FOLLO WING THE DECISION OF THE TRIBUNAL IN THE CASE OF CIT V/S MU LTIPLAN INDIA (P) LTD., (38 ITD 320) (DEL) AND THE DECISION OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ES TATE OF LATE TUKOJIRAO HOLKAR V/S CWT (1996) 223 ITR 480 (M P) AND OTHER DECISIONS DISMISSED THE ASSESSEES APPEAL IN LIMINE. IN DOING SO, THE LD. CIT(A) ALSO CONSIDERED THE ASSESS EES APPEAL ON MERITS AND IN THE ABSENCE OF ANY SUPPORTI NG MATERIAL, CONFIRMED THE DISALLOWANCE/ADDITION MADE BY THE AO. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE EX-PARTE ORDER PASSED BY THE LD.CIT(A) WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND SUSTENANCE OF ADDITION OF UNEXPLAINED CASH CREDITS U/S 68 OF RS.17,26,305/- AND DISALLOWANCE O F RS.57,082/- ON ACCOUNT OF VARIOUS EXPENSES. ITA NO.4779/MUM/2010 (ASSESSMENT YEAR:2006-07) 3 5. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE LD.CIT(A) HAS ISSUED ONLY ONE NOTICE FIXING THE APPEAL FOR HEARING ON 25.3.2010 A ND THAT NOTICE WAS SERVED UPON THE ITP AND NOT ON THE ASSES SEE, THEREFORE, THE ASSESSEE COULD NOT ATTEND THE DATE O F HEARING. HE, THEREFORE, SUBMITS THAT IN THE INTERESTS OF JUS TICE, THE ORDER PASSED BY THE LD.CIT(A) MAY BE SET ASIDE AND RESTORE THE APPEAL TO HIS FILE TO DECIDE THE SAME ON MERITS AFTER PROVIDING THE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHICH WAS NOT OBJECTED TO BY THE LD.D.R. 6. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON REC ORD WE FIND MERIT IN THE PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE. THE LD.CIT(A) HAS PROVIDED ONLY ONE OPPORTUNITY TO THE ASSESSEE AND IN THE ABSENCE OF ANY COMPLIANCE ON TH E SAID DATE, HE PASSED EX-PARTE ORDER DISMISSING THE APPEA L IN LIMINE AND ALSO DECIDED THE ISSUES ON MERITS WHEREI N, HE HAS CONFIRMED THE ADDITION/DISALLOWANCES. HOWEVER, CO NSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF T HE CASE, WE ARE OF THE VIEW THAT IN THE INTERESTS OF JUSTICE ON E MORE OPPORTUNITY BE PROVIDED TO THE ASSESSEE TO REPRESE NT HIS CASE BEFORE THE LD. CIT(A) AND ACCORDINGLY WE SET A SIDE THE ORDER PASSED BY THE LD. CIT(A) ON ALL THE ISSUES A ND SEND BACK THE MATTER TO HIS FILE TO DECIDE THE SAME AFRE SH AND ITA NO.4779/MUM/2010 (ASSESSMENT YEAR:2006-07) 4 ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE PARTLY ALLOWED FOR STATISTIC AL PURPOSE. 7. IN THE RESULT, THE ASSESSEES APPEAL STANDS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19TH AUG,2011. SD SD (B.RAMAKOTAIAH ) (D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 19TH AUGUST, 2011 SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA NO.4779/MUM/2010 (ASSESSMENT YEAR:2006-07) 5 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND B.RAMAKOTAIAH (A .M ) ITA NO.4779/MUM/2010 (ASSESSMENT YEAR:2006-07) SHRI RAJENDRA K.GANDHI, D/5, GREEN PARK, OLD NAGARDAS ROAD, ANDHERI (EAST), MUMBAI-400069. PAN: AHEPG0311M INCOME TAX OFFICER WARD 15(2)(1), MATRU MANDIR, NANA CHOWK, MUMBAI-400007 APPELLANT V/S RESPONDENT CORRINGENDUM IN THE ORDER PASSED BY THE ITAT, MUMBAI BENCHES D MUMBAI IN THE ABOVE APPEAL IN ITA NO.4779/MUM/2010 FOR ASSESSMENT YEAR 2006-07 DATED 19.8.2011, AT PAGE N O.1 FOR APPELLANT BY SHRI REEPAL G.TRALSHAWALA AND RESPON DENT BY SHRI G.K.NAIR READ APPELLANT BY SHRI REEPAL G.TRALSHAWALA AND RESPONDENT BY SHRI C.G.K.NAIR SD SD (B. RAMAKOTAIAH ) (D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 30 TH AUG, 2011 SRL COPY TO: 1. APPELLANT ITA NO.4779/MUM/2010 (ASSESSMENT YEAR:2006-07) 6 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI