PRAKASH DHANJI SHAH, MUMBAI V. DCIT CEN CIR 3, MUMBAI

ITA 5702/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3082 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 10-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,MUMBAI BENCH C, MUMBAI BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.5702/MUM/2014 ASSESSMENT YEAR: 2011-12 SHRI PRAKASH DHANJI SHAH 375, 5 TH FLOOR, B WING, VIDHYUT BUILDING, JSS ROAD, MUMBAI-400002. PAN: AALPS5812P VS. DCIT, CENTRAL CIRCLE-3, MUMBAI-400020. (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. VINITA SHAH ( AR) REVENUE BY : SHRI NAVEEN GUPTA (DR) DATE OF HEARING : 20.06.2016 DATE OF ORDER : 20.06.2016 O R D E R PER PAWAN SINGH, JM: 1. THE PRESENT APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF CIT(A)-36, MUMBAI DATED 11.07.2014 FOR ASSESSMENT YEAR (AY) 20 11-12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN PASSING THE EX-PARTE OR DER, WITHOUT GRANTING THE OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F LEARNED ASSESSING OFFICER IN MAKING AN ADDITION OF RS. 12,9 7,400/- BY TREATING THE CASH FOUND DURING THE COURSE OF SEARCH AS ALLEGED UNACCOUNTED INCOME OF THE ASSESSEE, WITHOUT CONSIDE RING THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 ITA NO. 5702/MUM/2014- SHRI PRAKASH DHANJI SHAH 2. THE FIRST GROUND OF APPEAL FOR OUR CONSIDERATION I S THAT CIT(A) ERRED IN PASSING THE EX-PARTE ORDER WITHOUT GRANTING OPPORTUNITY OF BEING HEARD. AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE ARGUED THAT THE FIRST APPELLATE AUTHORITY (FAA) PASSED THE ORDER WITHOUT GIVING PROPER NOTICE OF THE PROCEEDINGS. AR OF THE ASSESSEE FURTHER ARGUED THAT KEEPING IN VIEW TH E PRINCIPLE OF NATURAL JUSTICE; THE ASSESSEE MAY BE GRANTED OPPORTUNITY OF BEING HE ARD AT THE STAGE OF FAA AND SUBMITS THAT MATTER MAY BE REMANDED FOR FRESH HEARI NG. DEPARTMENTAL REPRESENTATIVE (DR) FOR REVENUE SUPPORTED THE ORDER OF LD CIT(A). 3. WE HAVE CONSIDERED THE RIVAL CONTENTIONS OF THE PAR TIES AND PERUSED THE ORDER PASSED BY CIT(A). WE NOTICED THAT IN PARAGRAPH NO.4 OF ITS ORDER MADE THE FOLLOWING OBSERVATIONS: NOTICE U/S 250 OF THE ACT WAS ISSUED FOR HEARING T O THE ASSESSEE. DURING THE COURSE OF APPELLATE PROCEEDING, THE APPE LLANT HAS NEITHER APPEARED NOR SOUGHT ADJOURNMENT. THE CIT(A) FURTHER OBSERVED THAT ASSESSEE IS CASUAL IN APPROACHING AND FAILED TO APPEAR BEFORE HIM DESPITE OPPORTUNITY. THE CIT (A) INVOKED THE PROVISIONS OF SECTION 114(G) OF THE INDIAN EVIDENCE ACT AND DISMI SSED THE APPEAL EX-PARTE. WE HAVE NOTICED THAT THE CIT(A) HAS NOT REFERRED AS TO WHEN THE NOTICE WAS ISSUED TO THE ASSESSEE. FOR WHICH DATE OF HEARING O F THE APPEAL WAS FIXED. THE NOTICE WAS DULY SERVED OR NOT. WHAT MODE OF SERVICE OF NOTICE WAS ADOPTED/FOLLOWED BY CIT(A). THE ORDER DOES NOT REVE AL THAT THE DATE(S) OF HEARING) OF APPEAL. THE ORDER FOR PROCEEDING THE AS SESSEE EX-PARTY IS ERRONEOUS AND AGAINST THE PRINCIPAL OF NATURAL JUSTICE CONSID ERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE RESTORED THE PRESENT APPEAL TO THE FILE OF CIT(A) FOR HEARING THE MATTER AFRESH. LD CIT(A) IS DIRECT ED TO PROVIDE ADEQUATE AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND PASS THE ORDER IN ACCORDANCE WITH LAW. THE ASSESSEE ALSO DIRECTED TO FULLY CO-OPERATE DURI NG THE PROCEEDING AND NOT TO DELAY THE PROCEEDING WITHOUT REASONABLE EXCUSE. THE ASSESSEE FURTHER DIRECTED TO APPROACH THE CIT (A) IMMEDIATELY ON RECEIPT OF THIS ORDER WITH THE REQUEST TO FIX THE MATTER FOR HEARING. 3 ITA NO. 5702/MUM/2014- SHRI PRAKASH DHANJI SHAH 4. WITH THESE OBSERVATIONS, GROUND NO.1 RAISED IN THE PRESENT APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. WE HAVE ALREADY RE STORED THE CASE TO THE FILE OF CIT(A), HENCE, THE DISCUSSION ON GROUND NO. 2 IS BECAME ACADEMIC. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON TH IS 20 TH JUNE, 2016. SD/- SD/- (RAJENDRA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 20/06/2016 S.K.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/