VIJAY CHIMANLAL NAYYAR, MUMBAI V. INCOME TAX OFFICER 32(3)(5), MUMBAI

ITA 5197/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3878 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 09-08-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B SATYANARAYAN RAJU
• Keywords: Opportunity of being heard; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI JOGINDER SINGH (VICE PRESIDENT) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 5197/MUM/2017 ASSESSMENT YEAR: 2012 - 13 MR. VIJAY CHIMANLAL NAYYAR 48, JWALA ESTATE FLYOVER JUNCTION S V ROAD, BORIVALI (W), MUMBAI - 400092. VS. ITO - 32(3)(5) BANDRA MUMBAI. PAN NO. AAEPN8527D APPELLANT RESPONDENT ASSESSEE BY : MR. ANIL THAKRAR , AR REVENUE BY : M R. B. SATYANARAYAN RAJU , DR DATE OF HEARING : 16 /01/2019 DATE OF PRONOUNCEMENT : 30/01/2019 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2012 - 1 3 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF IN COME TAX (APPEALS) - 44 , MUMBAI [IN SHORT CIT(A)] AND ARISES OUT OF COMPLETED ASSESSMENT U/S 144 OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE GROUND OF APPEAL FILED BY THE ASSESSEE READ AS UNDER: 1. THE APPELLANT IS AN INDIVIDUAL . F ILED HIS RETURN OF INCO ME ON 30.09.2012 DECLARING TOTAL INCOME OF RS.5,58,930/ - . MR. VIJAY CHIMANLAL ITA NO. 5197/MUM/2017 2 2. THE LD. CIT(A) HAS ERRED IN C ONFIRMING ADDITION OF RS.45,26,029/ - AS CESSASSION OF LIABILITY U/S 41(1) OF THE IT ACT, 1961. 3. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.3,92,457/ - BEING DIS ALLOWANCE OF 25% OF EXPENSES CLAIMED BY APPELLANT IN HIS RETURN OF INCOME. 4. THE APPELLANT REQUEST TO DELETE THE ADDITION CONFIRMED BY THE CIT(A). 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR (AY) 2012 - 13 ON 03.09.2012 DECLARING TOTAL INCOME OF RS.5,58,930/ - . THE ASSESSING OFFICER (AO) VIDE ORDER DATED 27.03.2015 FRAMED THE ASSESSMENT U/S 144 OF THE ACT COMPUTING THE INCOME AT RS.54,77,413/ - . THE ADDITIONS MADE BY THE AO INCLUDE (I) CESSATION OF LIABILITY OF RS.45,26,029/ - AND (II) DISALLOWANCE OF RS.3,92,457/ - ON ACCOUNT OF VARIOUS EXPENSES. THE AO HAD TO RESORT TO THE ASSESSMENT U/S 144 BECAUSE OF NON - COMPLIANCE ON THE PART OF THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). WE FIND THAT AGAIN THERE WAS NON - COMPLIANCE BY THE ASSESSEE BEF ORE THE LD. CIT(A). THEREFORE, THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED. 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE FILES A PAPER BOOK (P/B) WHICH CONTAINS INTER ALIA COPIES OF CONFIRMATIONS AND COPY OF AFFIDAVIT. IT IS SUBMITTED BY HIM THAT THES E DOCUMENTS COULD NOT BE FILED BY THE ASSESSEE BEFORE THE AO AS WELL AS LD. CIT(A) BECAUSE OF HEALTH PROBLEMS OF THE APPELLANT AND THESE ADDITIONAL EVIDENCE MAY BE ADMITTED FOR ADJUDICATION. MR. VIJAY CHIMANLAL ITA NO. 5197/MUM/2017 3 ON THE OTHER HAND, THE LD. DR OPPOSES THE ADMISSION OF ADDITIONAL EVIDENCE ON THE GROUND THAT THOUGH SUFFICIENT OPPORTUNITY WAS GIVEN BY BOTH THE AO AS WELL AS THE LD. CIT(A), THE ASSESSEE FAILED TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THEM. IT IS F URTHER STATED THAT THE ORDER PASSED BY THE AO, WHICH IS CONFIRMED BY THE LD. CIT(A) BE UPHELD, AS THERE WAS REPEATED NON - COMPLIANCE BY THE ASSESSEE BEFORE THEM. 6 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. IT IS FOU ND THAT THE AO HAS MADE AN ADDITION OF RS.45,26,029/ - TOWARDS CESSATION OF LIABILITY AND DISALLOWED 25% OF THE VARIOUS EXPENSES WHICH COMES TO RS.3,92,457/ - . IN THE SHAPE OF ADDITIONAL EVIDENCE, THE ASSESSEE HA S FILED COPY OF CONFIRMATIONS WHICH ARE PLACED AT PAGE 85 TO 138 OF THE P/B FILED BY HIM. WE ARE OF THE CONSIDERED VIEW THAT A PROPER CONCLUSION CAN BE DERIVED BY THE AO AFTER EXAMINING THOSE DETAILS. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE ORDER OF THE LD. CIT (A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO MAKE A DE NOVO ORDER AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE FURTHER DIRECT THE ASSESSEE TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/01/2019. SD/ - SD/ - (JOGINDER SINGH) (N.K. PRADHAN) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED: 30/01/2019 MR. VIJAY CHIMANLAL ITA NO. 5197/MUM/2017 4 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI