ASLAM ABDUL RAZAK MALKANI, MUMBAI V. ITO 24(1)(3), MUMBAI

ITA 4890/MUM/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0338 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 142(1); 68

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.4890/MUM/2014 ASSESSMENT YEAR: 2009 - 2010 MR ASLAM ABDUL RAZAK MALKANI FLAT NO. 708, HUMERA PARK, A WING, 7 TH FLOOR, PATHANWADI, MALAD (E), MUMBA 400 097 / VS. INCOME TAX OFFICER 24(1)(3) ( ! /ASSESSEE) ( ' / REVENUE) P.A. NO. AABPM6227C ' / REVENUE BY SHRI RAJESH KUMAR YADAV DR ! / ASSESSEE BY SHRI PRAMOD KUMAR PARIDA # '$ % !& / DATE OF HEARING : 05/02/2018 % !& / DATE OF PRONOUNCEMENT 05/02/2018 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 21 ST APRIL 2014 OF THE LEARNED FIRST APPELLATE AUTHORIT Y, 2 PASSING AN EXPARTE ORDER WHICH IS VIOLATION OF PRIN CIPLE OF NATURAL JUSTICE AND CONSEQUENT ADDITION U/S. 68 ON ACCOUNT OF UNEXPLAINED CASH CREDIT AMOUNTING TO RS 68,39,89 2/- OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING, THE LEARNED COUNSEL FOR THE ASSE SSEE EXPLAINED THAT DUE TO DIFFERENCES WITH THE PARTNERS THE NECESSARY DETAILS COULD NOT BE FILED, WHICH RESULTE D INTO ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT. TH E ASSESSEE HAS ALSO FILED PAPER-BOOK RUNNING INTO 83 PAGES CONTAINING VARIOUS DETAILS, WHICH COULD NOT BE FILE D BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BE FORE THE LEARNED CIT(A). THE PLEA OF THE LEARNED COUNSEL IS THAT IF THESE DETAILS ARE CONSIDERED THE TRUTH WILL OOZE OU T. THEREFORE, THE APPEAL MAY BE REMANDED TO THE FILE O F THE LEARNED ASSESSING OFFICER. 3. THE LEARNED DR SHRI RAJESH KUMAR YADAV, CONTENDE D THAT THESE DETAILS COULD NOT BE FILED BEFORE THE AS SESSING OFFICER/CIT(A) THEREFORE, THE ADDITIONS MAY BE SUST AINED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIE F ARE THAT 3 THE ASSESSEE IS AN INDIVIDUAL DECLARING INCOME OF R S 2,32,150/- IN HIS RETURN FILED ON 26 TH MARCH 2010, WHICH WAS INITIALLY PROCESSED U/S. 143(1) OF THE ACT. TH E CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY, THEREFORE N OTICE U/S. 143(2) AND 142(1) OF THE ACT WERE ISSUED TO THE ASS ESSEE. THE ASSESSEE ATTENDED THE PROCEEDINGS AND FILED THE DETAILS, WHICH WERE AVAILABLE WITH THE ASSESSEE. THE ASSESS EE VIDE LETTER DATED 10.11.2011 FURNISHED THE COPY OF THE A CCOUNT OF THE FIRM AND TDS CERTIFICATES. AS PER THE REVENUE THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF CASH DEPOS IT IN THE SAID ACCOUNT AMOUNTING TO RS 16,39,892/- AND, THERE FORE, THE ADDITION WAS RIGHTLY MADE U/S. 68 OF THE ACT. IT IS NOTED THAT THE ASSESSEE COULD NOT APPEAR BEFORE THE LEARN ED CIT(A) INSPITE OF FIXING THE CASE OF VARIOUS DATES AS MENT IONED IN PARA 4 OF THE IMPUGNED ORDER. CONSIDERING THE TOTA LITY OF FACTS, WE ARE OF THE VIEW THAT EVEN AS PER ARTICLE 265 OF THE CONSTITUTION OF INDIA ONLY DUE TAXES HAVE TO BE LEVIED/COLLECTED. SINCE THE ASSESSEE HAS FILED THE NECESSARY DETAILS WHICH CLAIM TO BE GOING TO THE ROOT OF THE MATTER, THEREFORE, WE DEEM IT APPROPRIATE TO REMAND THIS AP PEAL TO THE FILE OF THE LEARNED ASSESSING OFFICER TO EXAMIN E THE CLAIM OF THE ASSESSEE AND DECIDE AFRESH IN ACCORDAN CE WITH 4 LAW. THE ASSESSEE IS AT LIBERTY TO FURNISH NECESSA RY EVIDENCE BEFORE THE LEARNED ASSESSING OFFICER TO SUBSTANTIAT E HIS CLAIM FOR WHICH DUE OPPORTUNITY OF BEING HEARD BE P ROVIDED TO THE ASSESSEE. THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. FINALLY THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 5 TH FEBRUARY, 2018. SD/- (G. MANJUNATHA) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; + DATED : 05 /02/2018 SA %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. 2 2 # 3! , ( ,- ) / THE CIT, MUMBAI. 4. 2 2 # 3! / CIT(A)- , MUMBAI 5. 5'6 0! , 2 ,-& , , # $ / DR, ITAT, MUMBAI 6. 7 8$ / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI