ANSARI BILAL AHMED MOHD ISA, MUMBAI V. ITO WD 3(1), MUMBAI

ITA 5421/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7639 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-03-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 02-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T ROUMUAN PAITE
• Assessee Lawyers: S M JAIN
• Keywords: Gift; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI. D.K. AGARWAL (JM) AND SHRI. N.K. BILLA IYA (AM) ITA NO.5421/MUM/2010 ASSESSMENT YEAR: 2004-05 SHRI ANSARI BILAL AHMED MOHD ISA PROP. PAKEEZA TEXTILES, 163, HAFIZ NAGAR, BHIWANDI 421 302 VS. I.T.O. W-3(1), KALYAN (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.M. JAIN RESPONDENT BY : SHRI T. ROUMUAN PAITE DATE OF HEARING : 22.03.2012 DATE OF PRONOUNCEMENT : 28.03.2012 O R D E R PER N.K. BILLAIYA, A.M: THE PRESENT APPEAL PREFERRED BY THE ASSESSEE IS DIR ECTED AGAINST THE ORDER OF CIT(A)-I, MUMBAI DATED 28.01.2010 FOR THE ASSESSMENT YEAR 2004- 05. 2. THE ONLY GROUND BEFORE US FOR ADJUDICATION IS AG AINST THE LEVY OF PENALTY OF `. 45,000/- U/S. 271(1)(C) OF THE I.T. ACT. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT FO R THE YEAR UNDER CONSIDERATION, THE RETURN OF INCOME WAS FILED ON 31 .10.2004 DECLARING A TOTAL INCOME AT `. 1,49,121/- ALONG WITH THE COPIES OF STATEMENT OF AC COUNTS AND TAX AUDIT REPORT. THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT AND ACCORDINGLY NOTICE U/S.142(1) AND 143(2) WERE ISSUE D AND SERVED UPON THE ASSESSEE. ITA NO. 5421/MUM/2010 SHRI ANSARI BILAL AHMED MOHD ISA 2 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. SPECIFICALLY ASKED THE ASSESSEE TO EXPLAIN THE CREDIT OF `. 2,43,000/- IN THE CAPITAL ACCOUNT OF THE PROPRIETOR. THE ASSESSEE VIDE LETTE RS DATED 28.09.2006 AND 14.11.2006 EXPLAINED THE SOURCES FOR THE CREDIT OF `. 2,43,000/-. HOWEVER, THE EXPLANATION OF THE ASSESSEE DID NOT FIND FAVOUR FROM THE A.O. TO THE EXTENT OF `. 1,50,000/- WHICH HE CLAIMED TO HAVE INTRODUCED FROM PERSONAL SAVINGS, SMALL GIFTS BY FATHER, MOTHER, SISTER AND WIFE. THE A.O. WAS NOT SATISFIED WITH THE EXPLANATION AND WENT ON TO MAKE THE ADDITION OF `. 1,50,000/- TO THE INCOME RETURN AND ALSO INITIATED THE PENALTY PROCEEDINGS FOR CONCEALMENT OF INCOME. 4.1 WITH THE ABOVE BACKGROUND OF ASSESSMENT, THE PE NALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT WERE INITIATED. DURING T HE COURSE OF THE PENALTY PROCEEDINGS, THE ASSESSEE WAS GIVEN AN OPPORTUNITY OF BEING HEARD BUT IT APPEARS THAT HE DID NOT AVAIL OF THE OPPORTUNITY, THEREFORE, THE A.O. WENT ON TO LEVY THE PENALTY OF `. 45,000/- U/S. 271(1)(C) OF THE ACT. 4.2 THE ASSESSEE ASSAILED THE ORDER OF PENALTY BEFO RE THE CIT(APPEALS). 5. DURING THE COURSE OF THE APPELLATE PROCEEDINGS B EFORE THE CIT(APPEALS), THE LEARNED CIT(A) FIXED THE CASE FOR HEARING ON FIVE DIFFERENT DATES WHICH APPEAR ON PAGE 2 OF THE ORDER OF THE LE ARNED CIT(A) AT PARA 3. 5.1 THE LEARNED CIT(A) THEREAFTER CONFIRMED THE PEN ALTY OF `. 45,000/- HOLDING THAT THE APPELLANT IS NOT AT ALL INTERESTED IN PROSECUTING THE APPEAL AND DISMISSED THE APPEAL FOR NON ATTENDANCE. 6. BEFORE US THE LEARNED COUNSEL APPEARING FOR THE APPELLANT FILED A COPY OF THE LETTER ADDRESSED TO THE CIT(A)-I, THANE DATE D 06.10.2009 WHICH WAS SENT TO THE OFFICE OF THE CIT(A)-I, THANE BY SPEED POST. THE RECEIPT OF THE SPEED POST IS ALSO EMBEDDED IN THE AFORESAID LETTER . IN THIS LETTER, WE FIND THAT THE APPELLANT HAS REQUESTED FOR ADJOURNMENT OF CASE FIXED ON 12.10.2009. ITA NO. 5421/MUM/2010 SHRI ANSARI BILAL AHMED MOHD ISA 3 6.1 IT APPEARS THAT THE LEARNED CIT(A) HAS NOT CONS IDERED THIS REQUEST MADE BY THE APPELLANT. 7. WE, THEREFORE, RESTORE THIS MATTER BACK TO THE F ILE OF THE LEARNED CIT(A)-I, THANE TO DISPOSE OFF THE ISSUE OF LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT ON MERITS AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. THE APPELLANT IS ALSO DIRECTED TO HONOUR ANY SUCH N OTICE WHICH WOULD BE SERVED UPON HIM BY THE LEARNED CIT(A) IN THE DUE CO URSE OF TIME. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF MARCH, 2012. SD/- SD/- (D.K. AGARWAL) (N.K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 28.03.2012 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, A - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI