KHUSHAL GIANCHANDJI GOLECHA, MUMBAI V. DCIT- CC - 5 (1), MUMBAI

ITA 5256/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4546 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2005-2006
• Appeal Filed On: 11-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R BHOOPATHI
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 133A; 153C; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI MAHAVIR SINGH (VICE PRESIDENT) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 5256/MUM/2018 ASSESSMENT YEAR: 2005-06 & ITA NO. 5257/MUM/2018 ASSESSMENT YEAR: 2006-07 & ITA NO. 5258/MUM/2018 ASSESSMENT YEAR: 2007-08 & ITA NO. 5259/MUM/2018 ASSESSMENT YEAR: 2008-09 & ITA NO. 5260/MUM/2018 ASSESSMENT YEAR: 2009-10 & ITA NO. 5261/MUM/2018 ASSESSMENT YEAR: 2010-11 & ITA NO. 5262/MUM/2018 ASSESSMENT YEAR: 2011-12 SHRI KHUSHAL GIANCHANDJI GOLECHA, 458/68, 2 ND FLOOR, ROOM NO. 28, JKB HOUSING SOCIETY, CHIRA BAZAR, MUMBAI-400002. VS. DCIT, CENTRAL CIR-5(1), AAYAKAR BHAVAN, INCOME TAX OFFICE MUMBAI-400012. PAN NO. AACPG4937G APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : MR. R. BHOOPATHI, DR DATE OF HEARING : 20 /10/2020 DATE OF PRONOUNCEMENT : 21/10/2020 SHRI KHUSHAL GAINCHANDJI ITA NOS. 5256/MUM/2018 & ORS. 2 ORDER PER BENCH THE CAPTIONED APPEALS FILED BY THE ASSESSEE ARE DIR ECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5 3, MUMBAI AND ARISE OUT OF THE PENALTY LEVIED U/S 271(1)(C) OF THE INCOME T AX ACT 1961 (THE ACT). AS COMMON ISSUES ARE INVOLVED, WE ARE PROCEEDING TO DI SPOSE THEM OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. THO UGH THE CASE WAS FIXED FOR HEARING ON 03.12.2019 AND 19.10.2020, NEITHER THE A SSESSEE NOR ITS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE TRIBUNAL ON THE ABOVE DATES. IN VIEW OF THE NON-COMPLIANCE BY THE ASSESSEE, WE PROCEED TO D ISPOSE OFF THESE APPEALS AFTER EXAMINING THE MATERIALS AVAILABLE ON RECORD A ND AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE (DR). 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A SURVEY ACTION WAS CARRIED OUT U/S 133A ON 13.09.2010 AT ROOM NO 39, 1ST FLOOR , 142F LAL BHAVAL HAVELI KANDORI NAGAR CHS, BHULESHWAR MUMBAI IN THE CASE OF M/S PATEL ASHOK KUMAR MOHANLAL & CO. AND COUPLE OF OTHER PREMISES. THE SURVEY WAS BASED ON INFORMATION THAT ANGADIYA SERVICES WERE BEING PROVI DED FOR TRANSFERRING CASH AND VALUABLES. ON FINDING CASH AT THESE PREMISES TH E SURVEY ACTION WAS CONVERTED INTO SEARCH ACTION U/S 132 OF THE ACT. DU RING THE COURSE OF SEARCH ACTION, AN AMOUNT OF RS.7.50 LAKHS WAS SEIZED FROM ONE SHRI NAVO KUMAR SASVAN WHO WORKED AS A SECURITY GUARD IN M/S. KANIK A GEMS. HE ADMITTED THAT CASH AMOUNTING TO RS.7.50 LAKHS WAS GIVEN TO HIM BY THE APPELLANT, WHO WAS A PROPRIETOR OF M/S KANIKA GEMS, TO BE DELIVERED TO T HE ANGADIYA FIRM M/S. PATEL ASHOK KUMAR MOHANLAL & CO. SINCE THE APPELLAN T DID NOT EXPLAIN THE SOURCE OF CASH AND EXPRESSED IGNORANCE, THE CASH WA S TREATED AS UNEXPLAINED SHRI KHUSHAL GAINCHANDJI ITA NOS. 5256/MUM/2018 & ORS. 3 AND SEIZED IN THE HANDS OF SHRI PATEL ASHOK KUMAR C /O M/S PATEL ASHOK KUMAR MOHAHAL & CO. NOTICES U/S 153C WERE ISSUED TO THE A PPELLANT. IN THESE CASES, THE ASSESSMENT U/S. 144 R.W.S. 153C OF THE ACT WAS COMPLETED ON 21-03-2013. IN THE ASSESSMENT ORDER, DISALLOWANCES WERE MADE OU T OF EXPENSES CLAIMED AGAINST COMMISSION INCOME. THE APPELLANT HAD PREFER RED APPEAL AGAINST THE ORDERS U/S. 144 R.W.S. 153C BEFORE THE CIT(A). THE ID.CIT(A) VIDE ORDER DATED 22-01-2016 IN CIT(A)-53/DCCC-32/IT-67 TO 73/13-14 F OR AYS 2005-06 TO 2011-12 DISPOSED OFF THE APPEALS EX-PARTE AND DISMISSED THE APPEALS OF THE APPELLANT. PENALTY PROCEEDINGS WERE INITIATED AND S INCE NO SUBMISSIONS WERE FILED, PENALTY ORDERS WERE PASSED ON 29.03.2017. IN APPEAL, THE LD. CIT(A) CONFIRMED THE PENALTY LEVIED BY THE AO. 3. THE REASON FOR DISMISSING THE APPEAL BY THE LD. CIT(A) IS THAT THERE WAS NO COMPLIANCE BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE HIM. AT PARA 4.3 OF THE IMPUGNED ORDER, THE LD. CIT(A) HAS MENTIONED THAT : 4.3 A LETTER WAS FILED ON 18.06.2018 ON BEHALF OF SHRI AVESH PATEL, CA ENCLOSING LETTER OF AUTHORITY AND SEEKING ADJOURNMENT FOR AY 2008-09. HE WAS INFORMED THAT APPEALS ARE PENDING FOR AY 2005-06 TO AY 2011-12, A ND THAT NOTICE HAD BEEN ISSUED EARLIER TOO AND TO ATTEND IN PERSON ON 19.06.2018 A T 1 AM. NEITHER DID SHRI PATEL ATTEND NOR ANY FURTHER RESPONSE WAS RECEIVED. BEFORE US, THE LD. DR SUBMITS THAT AS THERE IS REP EATED NON-COMPLIANCE BY THE ASSESSEE, THE ORDER PASSED BY THE LD. CIT(A) BE CONFIRMED. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVAN T MATERIALS ON RECORD. HAVING EXAMINED THE NOTICE FOR HEARING ISSUED BY TH E LD. CIT(A) ON 13.04.2018; THE REPORT OF THE INSPECTOR; AGAIN THE NOTICE DATED 30.05.2018; SHRI KHUSHAL GAINCHANDJI ITA NOS. 5256/MUM/2018 & ORS. 4 AGAIN THE REPORT OF THE INSPECTOR AND FINALLY, FIXI NG THE CASE FOR HEARING ON 19.06.2018 AT 1 AM (IT SHOULD BE 19.06.2018 AT 1 PM ), WE ARE OF THE CONSIDERED VIEW THAT ANOTHER OPPORTUNITY BE GIVEN T O THE APPELLANT AND THE CASE BE DECIDED ON MERIT. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A ) AND RESTORE THE MATTER TO HIM TO DECIDE THE APPEAL AFRESH ON MERIT, AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. WE DIR ECT THE APPELLANT TO APPEAR BEFORE THE LD. CIT(A) ALONG WITH RELEVANT DOCUMENTS /EVIDENCE ON THE DATE TO BE FIXED FOR HEARING. 5. IN THE RESULT, THE APPEALS ARE ALLOWED FOR STATI STICAL PURPOSES. SD/- SD/- ( MAHAVIR SINGH ) (N.K. PRADHAN) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI; DATED: 21/10/2020 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// (DY/ASST. REGISTRAR) ITAT, MUMBAI