MAHENDRA P ANGARA, MUMBAI V. ACIT-19(2), MUMBAI

ITA 5324/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7644 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 14-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A H ANSARI SR AR
• Assessee Lawyers: S R LODHE
• Keywords: Principle of natural justice; Accommodation entries; Set aside
• Section: 143(3); 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC, BENCH M UMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBE R ITA NO.5324/MUM/2019 ( ASSESSMENT YEAR: 2014-15 ) MAHENDRA P ANGARA SHOP NO.3 & 4,9 COOPER BUILDING 1 ST PARSIWADA LANE NANUBHAI DESAI ROAD MUMBAI-400 004 VS. ACIT-19((2) 207, 2 ND FLOOR MATRU MANDIR TARDEO ROAD MUMBAI-400 007 PAN/GIR NO. AAAJPA1300L APPELLANT ) .. RESPONDENT ) REVENUE BY SHRI. A.H.ANSARI, SR.AR (ADDL.CIT) ASSESSEE BY SHRI. S.R.LODHE, AR DATE OF HEARING 20/01/2020 DATE OF PRONOUNCEME NT 29 /01/2020 / O R D E R PER G.MANJUNATHA (A.M) : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST, THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)07, MUMBAI, DATED 27/05/2019 AND IT PERTAINS TO ASSESSMENT YEAR 2014-15. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED CIT(A) ERRED IN PASSING EX-PARTY ORD ER AND CONFIRMING THE ADDITION MADE BY THE LD. AO WITHOUT GIVING OF BEING HEARD TO THE ASSESSEE. 2. THE LD.CIT(A) VIOLATED THE PRINCIPLE OF NATURAL JUSTICE. 3. THE LD.CIT(A) ERRED IN CONFIRMING INTEREST COMPO NENT OF RS. 3,50,137/- PAID ON LOAN OF RS. 54,05,000/- TAKEN FR OM NAZAR IMPEX. ITA NO.5324/MUM/2019 MAHENDRA P ANGARA 2 4. THE FAULT AT THE END OF AUTHORIZED REPRESENTATIV E CANNOT BE PENALIZED THE ASSESSSEE AS THE ASSESSEE HAS ENGAGED THE AR AN D BELIEVED AND RELIED UPON THE AR IN GOOD FAITH. 5. APPELLANT DESERVE RIGHTS TO ADD, AMEND, DELETE O R ALTER ANY OF THE GROUNDS IF NEED SO ARISES. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL, ENGAGED IN THE BUSINESS OF TRADING IN V ARIOUS FERROUS & NON FERROUS METALS, FILED HIS RETURN OF INCOME FOR AY 2014-15 ON 28/11/2014, DECLARING TOTAL INCOME OF RS. 24,54,400 /-. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT HAS BEEN C OMPLETED U/S 143(3) OF THE I.T.ACT, 1961, ON 07/12/2016, DETERMI NING THE TOTAL INCOME AT RS. 28,04,540/- BY MAKING ADDITIONS TOWAR DS INTEREST PAID ON LOANS TAKEN FROM NAZAR IMPEX, ON THE GROUND THA T PURPORTED LOANS TAKEN FROM THE SAID PARTIES WAS NON GENUINE A ND CONSEQUENTLY, INTEREST PAID ON SAID LOANS CANNOT BE ALLOWED U/S 37 OF THE I.T.ACT, 1961. THE ASSESSEE HAS CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. BEFORE THE LD .CIT(A), THE ASSESSEE, NEITHER APPEARED, NOR FILED ANY DETAILS T O JUSTIFY ITS CASE, DESPITE VARIOUS DATES OF HEARING WAS PROVIDED BY TH E LD.CIT(A) AS NOTED BY HIM IN HIS APPELLATE ORDER AT PARA 2.1 ON PAGES 2 AND 3. THEREFORE, HE PROCEEDED TO DISPOSE OF APPEAL FILED BY THE ASSESSEE EX-PARTE AND DECIDED THE ISSUE ON MERITS, AS PER MATERIALS AVAILABLE ON RECORD AND CONFIRMED ADDITIONS MADE BY THE LD. A O TOWARDS DISALLOWANCES OF INTEREST PAID ON LOAN TAKEN FROM M /S NAZAR IMPEX, ON THE GROUND THAT SAID LOAN WAS NON GENUINE AND WH ICH WAS IN THE NATURE OF ACCOMMODATION ENTRIES. AGGRIEVED BY THE L D.CIT(A) ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIE S BELOW. THE ITA NO.5324/MUM/2019 MAHENDRA P ANGARA 3 LD.CIT(A) HAS DISPOSED OF APPEAL FILED BY THE ASSES EE EX-PARTE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD FOR THE REASONS THAT THE ASSESSEE HAS NEITHER APPEARED, NOR FILED ANY DETAIL S TO JUSTIFY ITS CASE. NO DOUBT, IT IS THE DUTY OF THE PERSON, WHO HAS FILED APPEAL SHOULD GO BEFORE THE AUTHORITIES AND PRESENT ITS CA SE WITH NECESSARY EVIDENCES FOR SPEEDY DISPOSAL OF APPEAL. IF THE PER SON, WHO HAS FILED APPEAL DID NOT APPEARED BEFORE THE FIRST APPELLATE AUTHORITIES, THEN THE APPELLATE AUTHORITIES LEFT WITH NO OPTION, BUT TO DISPOSE OF THE APPEAL, ON THE BASIS OF MATERIAL AVAILABLE ON RECOR D, BUT SUCH APPEAL CANNOT BE DISPOSED IN LUMINE FOR NON APPEARANCE OF THE PARTIES. IN THIS CASE, THE ASSESSEE HAS EXPLAINED THE REASONS F OR NOT APPEARING BEFORE THE LD.CIT(A), ON THE DATE SPECIFIED FOR HEA RING APPEAL. ON PERUSAL OF REASONS ADDUCED BY THE ASSESSEE FOR NOT APPEARING BEFORE THE LD.CIT(A), WE FIND THAT THERE IS NO DELI BERATE ATTEMPT FROM THE ASSESSEE NOT TO GO BEFORE THE APPELLATE AUTHORI TIES. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THIS CAS E AND ALSO, TAKEN NOTE OF REASONS GIVEN BY THE ASSESSE FOR NOT APPEAR ING BEFORE THE LD.CIT(A), WE ARE OF THE CONSIDERED VIEW THAT THE I SSUE NEEDS TO GO BACK TO THE FILE OF THE LD.CIT(A) TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE WITH NECESSARY EVIDENC ES. HENCE, WE SET ASIDE THE ISSUE TO THE FILE OF THE LD.CIT(A), T O DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY OF HEA RING TO THE ASSESSEE. NEEDLES TO SAY, THE ASSESSEE SHALL GO BEF ORE THE LD.CIT(A) AND FILE NECESSARY EVIDENCES, IN ORDER TO DISPOSE THE APPEAL. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. ITA NO.5324/MUM/2019 MAHENDRA P ANGARA 4 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29/01/ 2020 SD/- (SAKTIJIT DEY) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 29/01/2020 THIRUMALESH 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//