HARIT VIJAYKUMAR SONI, MUMBAI V. ITO 32(1)(5), KALYAN

ITA 5603/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6828 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 15-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Additional evidence
• Section: 143(3); 68

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN , J M & HONBLE SH. N. K. PRADHAN, A M ./ I.T.A. NO . 5603 / MUM/ 2016 ( / ASSESSMENT YEAR: 2012 - 13 ) HARIT VIJAYKUMAR SONI, B - 707, KALPATARU APARTMENT, SATYA NAGAR, BEHIND SAIBABA NAGAR, BORIVALI (W) , MUMBAI - 4000 92 / VS. ITO 32(1)(5) KALYAN PIN - ./ ./ PAN NO. BEIPS 0003 N ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI ANIL THAK RAR , AR / RESPONDENTBY : SHRI RAM TIWARI , DR / DATE OF HEARING : 25 /04 /201 8 / DATE OF PRONOUNCEMENT : 2 9/05/2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 44, MUMBAI DATED 30.06.16 FOR AY 2012 - 13. 2 I.T.A. NO. 5603 /MUM/201 6 HARIT VIJAYKUMAR SONI, 2. THE B RIEF FACTS OF THE CASE ARE THAT ASSESSEE IS CARRYING ON A PROPRIETARY CONCERN IN TH E NAME OF M/S DELUXE PACKAGING. THE RETURN OF INCOME FOR AY 2012 - 13 WAS FILED ON 30.09.2012 DECLARING TOTAL INCOME OF RS. 4,19,460/ - . LATER ON , THE CASE WAS SELECTED FOR SCRUTINY AND AFTER SERVING STATUTORY NOTICES AND SEEKING REPLY, ORDER OF ASSESSMENT U/ S 143(3) WAS PASSED BY AOTHEREBY MAKING ADDITIONS U/S 68 OF THE I.T. ACT. AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERI NG THE CASE OF BOTH THE PARTIES, DISMISSED THE APPEAL OF THE ASSESSEE . NOW BE FORE US, THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL . 3. AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT ASSESSEE COULD NOT PROVE ANY EVIDENCE BEFORE THE AO AS WELL AS LD. CIT(A) AND IN ABSENCE OF ANY EVIDENCE, ADDITIONS WE RE MADE BY AO AND ULTIMATELY UPHELD BY LD. CIT(A). LD. AR FURTHER SUBMITTED THAT ASSESSEE WAS HAVING ALL THE CONFIRMATIONS IN RESPECT OF THE ADDITIONS WHICH HAVE BEEN 3 I.T.A. NO. 5603 /MUM/201 6 HARIT VIJAYKUMAR SONI, MADE U/S 68 OF THE I.T. ACT AND THE SAME ARE NOW PLACED ON RECORD BY WAY OF ADDITIONAL EV IDENCES WHICH CONTAIN IN PAGE NO. 1 TO 12 OF THE PAPER BOOK. IT WAS FURTHER SUBMITTED BY LD. AR THAT THE AUTHORIZED REPRESENTATIVE OF ASSESSEE HAD UNDERTAKEN SURGERY AND WAS THUS CONFINED TO BED W.E.F. 30.08.14 TO 04.09.14 , THEREFORE THE ASSESSEE WAS UNABLE TO SUBMIT THE DOCUMENTS BEFORE REVENUE AUTHORITIES. 4 . ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY REVENUE AUTHORITIES. 5 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND THAT ALTHOUGH THERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER PASSED BY LD. CIT(A). AS SUFFICIENT OPPORTUNITIES OF BEING HEARD HAD BEEN ALLOWED TO THE ASSESSEE, BUT STILL THE ASSESSEE CHOOSE NOT TO PROPERLY REPRESENT HIS CASE BEFORE LD. CIT(A), THEREFORE LD. CIT(A) TOOK A VIEW THAT ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL FOR TH E REASONS BEST KNOWN TO HIM. 4 I.T.A. NO. 5603 /MUM/201 6 HARIT VIJAYKUMAR SONI, SINCE ASSESSEE FAILED TO ESTABLISH THE GENUINENESS AS WELL AS IDENTITY AND CREDITWORTHINESS OF LOAN CREDITORS, THEREFORE CONSIDERING THESE CIRCUMSTANCES, LD. CIT(A) DISMISSED THE APPEAL FILED BY THE ASSESSEE. NOW, SINCE LD. AR HAS FILED AN APPLICATION DATED 03.04.18, REQUESTING TO ACCEPT ADDITIONAL EVIDENCE, THEREFORE AFTER CONSIDERING THE REQUEST OF THE ASSESSEE AND HEARING BOTH THE PARTIES ON THIS APPLICATION, WE FIND THAT DOCUMENTS NOW BEING PLACED ON RECORD BY WAY OF ADDITI ONAL EVIDENCE, GOES TO THE ROOTS OF THE CASE. THEREFORE, WE ALLOW THE APPLICATION OF THE ASSESSEE AND ADMIT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE, WHICH IS AT PAGE NO. 1 TO 12 OF THE PAPER BOOK. SINCE, WE HAVE ADMITTED THE ADDITIONAL EVIDENCE FILE D BY THE ASSESSEE, WHICH REQUIRES NECESSARY VERIFICATION. THEREFORE, CONSIDERING THE INTEREST OF JUSTICE AND KEEPING IN VIEW THE CONDUCT OF THE ASSESSEE, WE SET ASIDE THE ORDER OF LD. CIT(A) DATED 30.06.16 SUBJECT TO PAYMENT OF COST OF RS. 2000/ - TO BE DEP OSITED WITH PRIME MINISTER RELIEF FUND (PMRF) AGAINST PROPER RECEIPT AND RESTORE THE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO VERIFY ALL THE DOCUMENTS FILED BY THE ASSESSEE BY WAY 5 I.T.A. NO. 5603 /MUM/201 6 HARIT VIJAYKUMAR SONI, OF ADDITIONAL EVIDENCE AND THEREAFTER PASS AFRESH ORDER OF ASSESSME NT. IT IS NEEDLESS HERE TO MENTION THAT BEFORE PASSING THE ORDER OF ASSESSMENT, THE AO SHALL PROVIDE SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF AO SHA LL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE AO INDEPENDENTLY IN ACCORDANCE WITH LAW. 6 . IN THE NET RESU LT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH M AY . 2018 SD/ - SD/ - ( N. K. PRADHAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 29 . 05 .201 8 SR.PS . DHANANJAY 6 I.T.A. NO. 5603 /MUM/201 6 HARIT VIJAYKUMAR SONI, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI