PRADIP S. DIXIT, MUMBAI V. CIT, MUMBAI

ITA 4953/MUM/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5674 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 28-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Additional evidence
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAM LAL NEGI , JM ITA NO. 4953 / MUM/20 15 ( ASSESSMENT YEAR : 2012 - 13 ) SHRI PRADIP S. DIXIT HOTEL SHANTIDOOT DR. AMBEDKAR ROAD NR. HINDMATA CLOTH MARKET DADAR (E ), MUMBAI - 14 VS. DY. COMMISSIONER OF INCOME TAX 17(1) MUMBAI PAN/GIR NO. APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI M. SUBRAMANIAN REVENUE BY SHRI RAJAT MITTAL DATE OF HEARING 14 / 06 /201 8 DATE OF PRONOUNCEMENT 26 / 07 /201 8 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 32, MUMBAI DATED 10/12/2014 FOR A.Y.2012 - 13 IN THE MATTER OF IMPOSITION OF PENALTY U/S.221(1) OF THE IT ACT. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 3. FACTS IN BRIEF ARE THAT THE ASSESSEE HAS FILED THE RETURN FOR THE A.Y. 2012 - 13 ON 29/11/2013. THE ASSESSEE COULD NOT MAKE THE PAYMENT OF RS. 5139940/ - TOWARDS THE S.A. TAX AT THE TIME OF FILING OF RETURN. IT WAS SUBM ITTED BY AR T HOUGH THE ASSESSEE IS HAVING THE HOTEL BUSINESS BUT HE ITA NO. 4953/MUM/2015 SHRI PRADIP S. DIXIT 2 WAS IN VERY BAD FINANCIAL POSITION & SAID POSITION IS CONTINUING STILL TODAY. DUE TO HYPERTENSION AND DUE TO BAD FINANCIAL POSITION, THE ASSESSEE WAS FACING BAD HEALTH & STILL HE IS SUFFER ING FROM BAD HEALTH. THE ASSESSEE RECEIVED THE NOTICE U/S. 221(1} DTD. 04/03/2013 ON 08/03/2013. THE REPLY WAS FILED WITH THE ASSESSING OFFICER ON 21/03/2013 VIDE LETTER DTD. 21/03/2013. WITHOUT CONSIDERING THE SAID LETTER, THE LEARNED OFFICER ISSUED ONE M ORE NOTICE DTD. 02/04/2013 CALLING THE ASSESSEE ON 10/04/2013. HOWEVER, THE LEARNED A.O. HAS LEVIED THE PENALTY U/S. 221(1) VIDE ORDER DTD. 31/03/2013. THE INTIMATION OF THE SAID ORDER IS RECEIVED BY THE ASSESSEE ON 08/04/2013. HENCE THE PENALTY IS LEVIED BEFORE THE DATE OF HEARING FIXED FOR THE EXPLANATION. 4. THE PENALTY SO LEVIED WAS CONFIRMED BY CIT(A) AGAINST WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES B ELOW AND FOUND FROM RECORD THAT THE ASSESSEE IS THE PROPRIETOR OF HOTEL SHANTIIDOOT AND HAS CLOSED DOWN THE BUSINESS ACTIVITY AND THE HOTEL PREMISES IS GIVEN ON RENT THE ASSESSEE HAS INCURRED LOSSES IN VARIOUS YEARS, DETAILS OF WHICH ARE AS UNDER : ASSESSME NT YEAR AMOUNT OF LOSS 2013 - 14 1,11,70,982/ - 2014 - 15 1,25,42,745 / - 2015 - 16 1,86,50,159/ - 2016 - 17 1,14,05,654 / - ITA NO. 4953/MUM/2015 SHRI PRADIP S. DIXIT 3 6. THE ASSESSE E HAS TAKEN THE BANK LOAN OF AROUND 10 CRORE FROM DNS BANK IN THE YEAR 2013 TO REPAY THE LOAN TAKEN FROM ALLAHA BAD BANK AS THE ACCOUNT WITH ALLAHABAD BANK BECAME NPA. NOW ACCOUNT WITH DNS BANK HAS BECOME NPA AND BANK HAS FILED THE SUIT WITH DRT FOR RECOVERY OF DUES. THE AMOUNT OUTSTANDING TOGETHER WITH INTEREST IS AROUND 13 CRORE. THE DNS BANK HAD GIVEN THE NOTIC E OF BALANCE RECOVERY FROM MR. PRADIP S. DIXIT AND MRS. SUMITA P. DIXIT IN THE NEWS PAPER LOKSATTA (MARATHI) ON 08/05/2014. 7. FROM THE RECORD, WE ALSO FOUND THAT THE CHIEF METROPOLITAN MAGISTRATE , MUMBAI, VIDE ORDER DATED 26/10/2016 , APPOINTED ADVOCATE HIGH COURT MR. SANJAY ANNABHAWNE AS A COURT COMMISSIONER TO TAKE POSSESSION OF THE SECURED ASSETS. ON 2 DECEMBER, 2017 , THE BANK HAS TAKEN OVER THE PHYSICAL POSSESSION OF THE SECURED ASSETS. 8. FROM THE ORDER OF AO WE FOUND THAT ASSESSEE WAS ASKED TO F ILE REASON FOR NOT DEPOSIT ING THE TAX BY ISSUING NOTICE U/S.221 ON 10/04/2013, HOWEVER, BEFORE THIS DATE AO HAS PASSED ORDER ON 31/03/2013 I.E., PRIOR TO THE DATE ASSESSEE WAS ASKED TO FILE THE JUSTIFICATION. ACCORDINGLY, ASSESSEE WAS NOT GIVEN PROPER OPPO RTUNITY TO ADDRESS ITS CASE EXPLAINING THE REASON FOR NOT LEVYING THE PENALTY. WE ALSO OBSERVE THAT ASSESSEE HAS FILED VARIOUS DOCUMENTS IN THE FORM OF ADDITIONAL EVIDENCE, WHICH GOES TO THE ROOT OF THE ISSUE TO SUBSTANTIATE ASSESSEES CLAIM. FOLLOWING ARE THE ADDITIONAL EVIDENCES: - ITA NO. 4953/MUM/2015 SHRI PRADIP S. DIXIT 4 1. COPY OF BALANCE RECOVERY NOTICE OF DNS BANK, PUBLISHED IN LOKSATA (MARATHI NEWSPAPER) ON 08/05/2014. 2. COPY OF ORDER OF THE CHIEF METROPOLITAN MAGISTRATE 3. COPY OF LETTER DATED 17/04/2017 OF ADVOCATE MR. SANJAY ANNABAWNE 4. COPY OF POSSESSION NOTICE OF DNS BANK DATED 02/12/2017 FOR TAKING OVER OF PHYSICAL POSSESSION. 5 . PHOTOCOPY OF PROPERTY SEALED BY DNS BANK . 9. IN VIEW OF ABOVE OBSERVATION , WE RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR DECIDING AFRESH AFTER GIVIN G DUE OPPORTUNITY AND CONSIDERING THE DOCUMENTS PLACED BEFORE US AS ADDITIONAL EVIDENCE S . 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 / 07 /201 8 SD/ - ( RA M LAL NEGI ) SD/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 26 / 07 /201 8 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT (A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//