KAMAL J GUPTA, MUMBAI V. ACIT CEN CIR 39, MUMBAI

ITA 4894/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3270 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 08-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK RIPOTE
• Assessee Lawyers: VIJAY KOTHARI
• Keywords: Search and seizure; Opportunity of being heard
• Section: 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER IT A NO. 4894 /MUM/20 15 : (A.Y : 20 10 - 11 ) KAMAL J. GUPTA 16A, ANDHERI INDUSTRIAL ESTATE, VEERA DESAI ROAD, ANDHERI (W), MUMBAI 400 058 ( APPELLANT ) PAN : AAEPG9892N VS. ACIT, CENTRAL CIRCLE - 39, MUMBAI (RESPONDENT) ASSESSEE BY : SHRI VIJAY KOTHARI REVENUE BY : SHRI DEEPAK RIPOTE DATE OF HEARING : 20/07 /2016 DATE OF PRONOUNCEMENT : 24 /0 8 /2016 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 54 , MUMBAI DATED 22 . 06 .20 15 , PERTAINING TO THE ASSESSMENT YEAR 20 1 0 - 11 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER, MUMBAI DATED 22 . 06 .20 12 UNDER SECTION 271AAA OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE ONLY ISSUE RAISED BY THE ASSESSEE RELATES TO THE ACTION OF CIT (A) IN SUSTAINING PENALTY OF RS.7,85,400/ - IMPOSED BY THE ASSESSING OFFICER U/S 271AAA OF THE ACT. 2 KAMAL J. GUPTA ITA NO. 489 4 /MUM/2015 3. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE CIT(A) HAS SUSTAINED THE LEVY OF PENALTY IN AN EX PARTE MANNER WHERE THE SAY OF THE ASSESSEE WAS NOT ON RECORD. IN THIS CONTEXT, IT HAS BEEN POINTED OUT THAT THE CIT(A) HAS PROCEEDED TO DISPOSE OF THE APPEAL EX PARTE ON THE GROUND THAT ON THE APPOINTED DATE OF HEARING, I.E., ON 18.6.2015, NEITHER ASSESSEE ATT ENDED AND NOR WAS ANY ADJOURNMENT SOUGHT. IT WAS POINTED OUT THAT ON THIS BASIS CIT(A) CONCLUDED THAT ASSESSEE WAS NOT INTERESTED IN PROSECUTING THE APPEAL. BEFORE US, IT HAS BEEN POINTED OUT THAT THE ASSESSEE WAS VERY MUCH INTERESTED IN PROSECUTING THE APPEAL, BUT THE APPELLANT COULD NOT ATTEND ON THE APPOINTED DATE FOR UNINTENDED REASONS. IT WAS ALSO POINTED OUT THAT THE CIT(A) HAS CHOSEN TO MERELY AFFIRM THE ORDER OF ASSESSING OFFICER WITHOUT CONSIDERING THE DEFENCE SOUGHT TO BE PUT UP BY THE ASSESSEE , WHICH WAS ALSO AVAILABLE FROM THE RELEVANT DISCUSSION IN THE ORDER OF ASSESSING OFFICER. IT WAS, THEREFORE, CONTENDED THAT THE ASSESSEE WOULD BE SATISFIED , FOR THE PRESENT , IF THE APPEAL IS RESTORED BACK TO THE FILE OF CIT(A) FOR ADJUDICATION AFRESH ON MERITS. 4. ON THE OTHER HAND, THE LD. DR APPEARING FOR THE REVENUE HAS NOT SERIOUSLY OPPOSED THE PLEA OF THE ASSESSEE FOR REMANDING THE MATTER BACK TO THE FILE OF CIT(A) FOR ADJUDICATION AFRESH. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. IN THE PRESENT CASE, THE CONTROVERSY IS WITH REGARD TO PENALTY IMPOSED U/S 271AAA OF THE ACT WITH RESPECT TO ASSESSMENT OF UNDISCLOSED INCOME AS A CONSEQUENCE OF SEARCH AND SEIZURE ACTION. INSOFAR AS MERIT S OF THE LEVY IS CONCERNED, THE SAME IS NOT BEING ADD RESSED BY US AT THIS STAGE. 3 KAMAL J. GUPTA ITA NO. 489 4 /MUM/2015 THE CIT(A) HAS UPHELD THE LEVY PRIMARILY REITERATING THE DISCUSSION MADE BY THE ASSESSING OFFICER IN THE PENALTY ORDER. OSTENSIBLY, CIT(A) DID NOT HAVE THE BENEFIT OF THE EXPLANATIONS FROM THE SIDE OF THE ASSESSEE AS THE ORDER HAS BEEN PASSED EX PARTE NOTICING ABSENCE OF THE ASSESSEE. CONSIDERING THE PLEA OF THE ASSESSEE BEFORE US, IN OUR VIEW, IT WOULD BE IN THE FITNESS OF THINGS THAT THE MATTER IS RESTORED BACK TO THE FILE OF CIT(A) FOR ADJUDICATION AFRESH AFTER ALLOWING ASS ESSEE A REASONABLE OPPORTUNITY OF BEING HEARD AND AS PER LAW. THUS, WITHOUT GOING INTO THE MERITS OF THE CONTROVERSY, APPEAL IS RESTORED BACK TO THE FILE OF CIT(A) FOR PASSING AN ORDER AFRESH IN ACCORDANCE WITH LAW. 6. IN THE RESULT, APPEAL OF THE ASSESS EE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 4 T H AUGUST, 2016. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 2 4 T H AUGUST , 2016 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, I BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI