FARAH SHAPUR DILKUSH, MUMBAI V. ITO-34(1)(4), MUMBAI

ITA 50/MUM/2023

AI Insights

The case involves an appeal by Farah Shapur Dilkhush against the order of the National Faceless Appeal Centre (NFAC)/CIT(A), which confirmed the Assessing Officer's (A.O.) order under sections 144 r.w.s 147 and 250 of the Income Tax Act. The A.O. had made additions to the assessee's income based on unexplained cash deposits and profits from share trading, among other reasons, after the assessee failed to comply with notices under sections 142(1) and 148. The CIT(A) dismissed the appeal ex-parte due to non-compliance by the assessee with the hearing notices. The Tribunal, considering the affidavit provided by the assessee explaining her non-compliance, decided to set aside the CIT(A)'s order and remand the case for a fresh hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299220 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 28-02-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 05-01-2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Non compliance; Capital Gains
• Section: 148; 144; 250; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHIR PAVAN KUMAR GADALE, JUDICIAL MEMBER & SHRI GAGAN GOYAL, ACCOUNTANT MEMBER ITA No. 50/Mum/2023 (A.Y: 2012-13) Farah Shapur Dilkhush 42/43, Sher mansion Love Lane, Mazgaon, Mumbai-400010 Vs. ITO – 34(1)(4) Room No.803, M.K.Road Mumbai-400020. PAN/GIR No. : AEBPV8012N Appellant .. Respondent Appellant by : Mr.Anuj Kishnadwala.AR Respondent by : Ms.Vranda U Matkari.DR Date of Hearing 01.03.2023 Date of Pronouncement 02.03.2023 आदेश / O R D E R PER PAVAN KUMAR GADALE JM: The assessee has filed the appeal against the order of the National Faceless Appeal Centre (NFAC)/CIT(A), Delhi passed u/s144 r.w.s147 and 250 of the Act. The assessee has raised the following grounds of appeal: 1. The learned CIT(A) has erred in law and on facts in passing the ex-parte order and thereby confirming the order passed by the Assessing Officer u/s. 144 r.w.s. 147 of the Act. The learned CIT (A) ought to have decided the appeal on merit. ITA No. 50/Mum/2023 Farah Shapur Dilkush, Mumbai. - 2 - 2. The learned CIT(A) ought to have held that the reopening of assessment by issuing notice u/s. 148 of the Act is illegal and bad in law. 3. The learned CIT (A) ought to have held that the order passed by the Assessing Officer u/s. 144 r.w.s. 147 of the Act is illegal and bad in law. 4. The learned CIT(A) has erred in law and on facts in confirming the addition of Rs. 78,83,200/- u/s 69A of the Act on account of unexplained cash deposits. 5. The learned CIT(A) has erred in law and on facts in confirming the addition of Rs. 4,80,655/- on account of proceeds received from sale of scrip namely M/s. Nivyah Infrastructure & Telecom Services. 6. The learned CIT(A) has erred in law and on facts in confirming the addition of Rs. 5,33,429/- on account of payment made against credit card bill. 7. The learned CIT(A) has erred in law and on facts in confirming the addition of Rs. 27,45,719/- on account of profit earned from sale of shares and securities. The appellant craves leave to add to, amend, alter or delete all or any of the foregoing grounds of appeal. 2. The brief facts of the case are that the assessee is an individual and has not filed the return of income. The AO has received information Ddit(Inv) that the assessee has traded in shares and has not offered capital gains and also there are cash deposits in the bank accounts. The Aassessing Officer (A.O.) has ITA No. 50/Mum/2023 Farah Shapur Dilkush, Mumbai. - 3 - reason to believe that the income has escaped the assesseement and issued notice u/s 148 of the Act and also sent through ITBA system, even the notice U/sec142(1) of the Act was not complied and hence the AO has applied the provisions of best judgment assessment u/s 144 of the Act and based on the informational available on record made the additions of cash deposits in bank, credit card payments U/sec69C of the Act and estimated the profit from shares trading and assessed the total income of Rs. 1,16,43,000/- and passed the order u/s 144 r.w.s 147 of the Act dated 13-12-2019. 3. Aggrieved by the order the assessee has filed an appeal before the CIT(A),whereas the CIT(A) has considered the grounds of appeal, statement of facts and findings of the AO and has issued notices of hearing and since there was no compliance by the assessee to notices. Therefore the CIT(A) considering the information on record has confirmed the action of the A.O and dismissed the appeal. Aggrieved by the order of the CIT(A), the assessee has filed an appeal before the Hon’ble Tribunal. ITA No. 50/Mum/2023 Farah Shapur Dilkush, Mumbai. - 4 - 4. At the time of hearing, the Ld. AR submitted that the CIT(A) has erred in confirming the action of the Assessing officer. The assessee has a good case on merits and shall substantiate with the material evidence and filed an affidavit explaining the reasons for non compliance before the CIT(A) and prayed for an opportunity to explain before the lower authorities. Contra, the Ld. DR supported the order of the CIT(A). 5. We heard the rival submissions and perused the material on record. Prima-facie the CIT(A) has passed the order considering the fact that there is no appearance in spite of providing adequate opportunity of hearing and the notices were issued. Therefore, the CIT(A) was of the opinion that the assessee is not interested in prosecuting the appeal and dismissed the appeal ex-parte confirming the action of the assessing officer. The Ld.CIT(A) has issued the notices of hearing referred at Page 3 of the order, but there was no response and thus the Ld.CIT(A) came to a conclusion that the assessee is not interested and decided the appeal based on the information available on record. The Ld.AR demonstrated the affidavit of the ITA No. 50/Mum/2023 Farah Shapur Dilkush, Mumbai. - 5 - Chartered Accountant explaining the sufficient reasons for non compliance before the first appellate authority. Whereas the assessee has raised grounds of appeal challenging the action of the A.O and there could be various reasons for non appearance which cannot be overruled. Therefore, considering the principles of natural justice shall provide one more opportunity of hearing to the assessee to substantiate the case along with evidences and information. Accordingly, set aside the order of the CIT(A) and remit the entire disputed issues to the file of the CIT(A) to adjudicate afresh and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information and allow the grounds of appeal of the assessee for statistical purposes. 6. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 02.03.2023. Sd/- Sd/- (GAGAN GOYAL) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated 02.03.2023 ITA No. 50/Mum/2023 Farah Shapur Dilkush, Mumbai. - 6 - KRK, PS /Copy of the Order forwarded to : 1. / The Appellant 2. / The Respondent. 3. आ आ / The CIT(A) 4. आ आ ( ) / Concerned CIT 5. ! !" , आ $ %, हमद द / DR, ITAT, Mumbai 6. () * + / Guard file. ान ु सार/ BY ORDER, ! //True Copy//() 1. ( Asst. Registrar) ITAT, Mumbai