DEEPAK SITLANI, MUMBAI V. DCIT 20(2), MUMBAI

ITA 4996/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7980 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 01-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; Deemed dividend

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI P K BANSAL, VICE PRESIDENT AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NOS. 4996 & 1805/MUM/2014 (ASSESSMENT YEARS: 2011-12 & 2009-10) SHRI DEEPAK SITLANI VS. DEPUTY COMMISSIONER OF 347, LAXMI PLAZA LAXMI INDUSTRIAL ESTATE ANDHERI (E), MUMBAI 400053 INCOME TAX - 20(2) PIRAMAL CHAMBERS MUMBAI 400012 PAN AQVPS9930L APPELLANT RESPONDENT APPELLANT BY: SHRI BHUPENDRA SHAH RESPONDENT BY: SHRI PURUSHOTTAM KUMAR DATE OF HEARING: 19.12.2017 DATE OF PRONOUNCEMENT: 20.12.2017 O R D E R PER P.K. BANSAL, VICE PRESIDENT BOTH THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF THE CIT(A)-31, MUMBAI FOR ASSE SSMENT YEARS 2011-12 & 2009-10. 2. IN A.Y. 2011-12 THE ASSESSEE HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL: - 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE COMMISSIONER OF INCOME TAX(A) ERRED IN PASSING THE APPELLATE ORDER EX-PARTE EVEN THOUGH IT WAS INFORMED TO THE O FFICE OF THE COMMISSIONER OF INCOME TAX(A) THAT THE APPELLANT WA S OUT OF TOWN FOR SEVERAL DAYS AND THEREFORE, THE NOTICES COULD N OT BE SENT TO THE INSTRUCTING CA. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE ASSESSING OFFICER ERRED IN ADDING RS 1,04,14,507/- UNDER THE HEAD INCOME FROM SALARY OF THE APPELLANT BY OVERLOO KING THE FACT THAT THE COMMISSION RECEIVED WAS PURELY IN CONNECTI ON WITH THE GROWTH OF THE BUSINESS BY INTRODUCING CLIENTS AND N OT AS PER THE TERMS OF EMPLOYMENT. ITA NOS. 4996 & 1805/MUM/2014 SHRI DEEPAK SITLANI 2 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSING OFFICER ERRED IN DISREGARDING THE FACT TH AT TOTAL EXPENSES AMOUNTING TO RS. 88,50,610/- IS DISALLOWED BY THE ASSESSING OFFICER IN THE HANDS OF THE APPELLANT EVE N THOUGH THE SAME HAS NOT BEEN CLAIMED BY THE SAID M/S IQN DATA SOLUTIONS PVT LTD. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE ASSESSING OFFICER ERRED WRONGLY CHARGING INTEREST U /S 234A, B, C & D IN INITIATING PENALTY U/S 274 R W S 271(1) (C) . IN A.Y. 2009-10 ASSESSEE HAS TAKEN THE FOLLOWING GR OUNDS OF APPEAL: - 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX(A) ALSO ERRED IN CONFIRM ING THE ADDITION OF RS. 77.30469/-(RS. 85,58,345- RS. 8,27, 746) IN RESPECT OF COMMISSION RECEIVED WAS PURELY IN CONNEC TION WITH THE GROWTH OF THE BUSINESS BY INTRODUCING CLIENTS AND N OT AS PER THE TERMS OF EMPLOYMENT. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE ASSESSING OFFICER ERRED IN ADDING [ALSO CONFIRMED B Y THE COMMISSIONER OF INCOME TAX (A)] A SUM OF RS 20,14,0 00/- RECEIVED BY THE APPELLANT AS DEEMED DIVIDEND BY DIS REGARDING THE FACT THAT THE SAME WAS RECEIVED AS AN ADVANCE AGAIN ST INTERIM DIVIDEND DECLARED BY M/S 1QN DATA SOLUTION PVT LTD. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE COMMISSIONER OF INCOME TAX(A) ERRED IN CONFIRMING R S 2,24,500/- DEPOSITED BY THE APPELLANT IN THE BANK ACCOUNT BY D ISREGARDING THE FACT THAT THE SAME WAS DEPOSITED FROM THE TAX P AID CASH WITHDRAWALS MADE BY THE APPELLANT. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE ASSESSING OFFICER ERRED WRONGLY CHARGING INTEREST U /S 234A. B, C & D IN INITIATING PENALTY U/S 274 R W S 271(1) (C). 3. THE LEARNED D.R. AT THE OUTSET CONTENDED THAT THE C IT(A) WHILE DISPOSING OFF THE APPEAL FOR A.Y. 2009-10 HAS FOLLO WED THE ORDER FOR A.Y. 2011-12. THEREFORE THE APPEAL FOR A.Y. 2011-12 SHOU LD BE HEARD FIRST. WE, THEREFORE, DECIDED TO DISPOSE OF THE APPEAL FOR A.Y . 2011-12 FIRST. ITA NO. 4996/MUM/2014 A.Y. 2011-12 4. AFTER HEARING THE RIVAL SUBMISSIONS AND GOING THRO UGH THE ORDER OF THE CIT(A) WE NOTED FROM GROUND NO. 1 OF THE ASSESS EE THAT THE CIT(A) HAS PASSED AN EX-PARTE ORDER WITHOUT GIVING PROPER OPPO RTUNITY TO THE ITA NOS. 4996 & 1805/MUM/2014 SHRI DEEPAK SITLANI 3 ASSESSEE. FROM THE ORDER OF THE CIT(A) IT IS APPARE NT THAT THE CIT(A) HAS SENT NOTICES TO THE ASSESSEE ONE WEEK BEFORE THE DA TE OF HEARING OF THE APPEAL BUT NOBODY ON BEHALF OF THE ASSESSEE HAS APP EARED BEFORE THE CIT(A). THE CIT(A) ALTHOUGH MENTIONED THAT THE NOTI CE HAS DULY BEEN SENT TO THE ASSESSEE BUT ABOUT THE SERVICE OF THE NOTICE THE CIT(A) HAS NOT MENTIONED IN THE ORDER AS TO HOW THE NOTICES HAVE B EEN SERVED ON THE ASSESSEE. THE FACT REMAINS THAT THE CIT(A) HAD DISP OSED OFF THE APPEAL WITHOUT THE ASSESSEE BEING HEARD. WE, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES SET ASIDE THE ORD ER OF THE CIT(A) AND RESTORE THIS APPEAL TO THE FILE OF THE CIT(A) WITH THE DIRECTION THAT THE CIT(A) SHALL REDECIDE THE APPEAL IN ACCORDANCE WITH LAW AF TER GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO D IRECTED TO REPRESENT HIS CASE BEFORE THE CIT(A) SO THAT THE SUBMISSIONS WHAT EVER THE ASSESSEE IS MAKING BEFORE US MAY BE DULY MADE BEFORE THE CIT(A) AND THE CIT(A) MAY PASS A SPEAKING ORDER AFTER CONSIDERING THE SUBMISS IONS MADE ON BEHALF OF THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND ALLOW THE APPEAL OF THE ASSESSEE STATISTICALLY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED. ITA NO. 1805/MUM/2014 A.Y. 2009-10 6. WE NOTED THAT THE CIT(A) HAS DISPOSED OFF THE APPEA L FOR THE IMPUGNED ASSESSMENT YEAR BY FOLLOWING THE ORDER OF THE CIT(A) FOR A.Y. 2011-12. SINCE WE HAVE SET ASIDE THE ORDER OF THE C IT(A) FOR A.Y. 2011-12 AND RESTORED THE APPEAL TO THE FILE OF THE CIT(A) W ITH THE DIRECTION THAT THE CIT(A) SHALL REDECIDE THE APPEAL OF THE ASSESSEE AF TER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE IN ACCORDANC E WITH LAW, WE THEREFORE IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH TH E PARTIES SET ASIDE THE ORDER OF THE CIT(A) FOR THE IMPUGNED ASSESSMENT YEAR AND RESTORE THIS APPEAL TO THE FILE OF THE CIT(A) WITH THE DIRECTION THAT THE CIT(A) SHALL REDECIDE THE APPEAL OF THE ASSESSEE IN ACCORDANCE WITH LAW AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO D IRECTED TO ADDUCE ALL THE EVIDENCES AND CASE LAW ON WHICH HE MAY RELY BEFORE THE CIT(A). ITA NOS. 4996 & 1805/MUM/2014 SHRI DEEPAK SITLANI 4 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESS EE ARE STATISTICALLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DECEMBER, 2017. SD/ - SD/ - (RAVISH SOOD) (P.K. BANSAL) JUDICIAL MEMBER VICE PRESIDENT MUMBAI, DATED: 20 TH DECEMBER, 2017 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -31, MUMBAI 4. THE CIT - 20, MUMBAI 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.