JASWANT L YADAV, MUMBAI V. ITO 21(2)(1), MUMBAI

ITA 5956/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2990 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-09-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 234B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO. 5956/MUM/2014 (ASSESSMENT YEAR : 2009-10) JASWANT L. YADAV, SHOP NO.2, PILLA BUNGLOW, SION BANDRA LINK ROAD, DHARAVI, MUMBAI -400017 PAN: AAVPY3087G ... APPELLANT VS. THE INCOME TAX OFFICER 21(2)(1), ROOM NO.505, 5 TH FLOOR, C-11, PRATYASHAKAR BHAWAN, BANDRA- KURLA COMPLEX, BANDRA (EAST), MUMBAI 400 051 .... RESPONDENT APPELLANT BY : SHRI K.GOPAL RESPONDENT BY : SHRI SUNIL KUMAR AGA RWAL DATE OF HEARING : 20/10/2015 DATE OF PRONOUNCEMENT : 20/10/2015 ORDER PER G.S. PANNU,AM: THE CAPTIONED APPEAL IS PREFERRED BY THE ASSES SEE AND IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 04/02/ 2013 OF CIT(A)-32, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2009-10 W HICH IN TURN HAS ARISEN FROM AN ORDER PASSED BY THE ASSESSING OFFICE R DATED 28/12/2011 UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961( I N SHORT THE ACT). 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL:- 2 ITA NO. 5956/MUM/2014 (ASSESSMENT YEAR : 2009-10) I. THE LD. COMMISSIONER OF INCOME TAX (APPEAL)-32, MUMBAI (HEREIN AFTER REFERRED TO 'LD. CIT(A)' 7 ) ERRED IN PASSING THE ORDER DATED 04/02/2013 CONFIRMING THE ASSESSMENT ORDER DATED 28/12/2011 PA SSED UNDER SECTION 143(3) OF THE ACT DETERMINING TOTAL INCOME OF THE APPELLANT AT RS.14,97,630/- AS AGAINST RETURNED INCOME OF RS.2,2 2,130/- WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CAS E. THUS, THE APPELLATE ORDER DATED 04.02.20 13 IS WITHOUT ANY BASIS AND TH E SAME MAY BE QUASHED AND SET ASIDE. 2. PASSING OF EX-PARTE ORDER UNJUSTIFIED I.THE LD.CIT(A) ERRED IN PASSING THE ORDER DATED 04 .02.2013 EX-PARTE WITHOUT AFFORDING THE APPELLANT AN APPROPRIATE OPPO RTUNITY OF BEING HEARD. THUS, THE APPELLATE ORDER DATED 04.02.2013 I S AGAINST THE PRINCIPLES OF NATURAL JUSTICE. HENCE, THE SAME MAY BE QUASHED AND SET ASIDE II..THE LD. CIT(A) FAILED TO APPRECIATE THAT THE AP PELLANT HAS NOT RECEIVED ANY NOTICE FROM HIS OFFICE. THEREFORE, THE APPELLANT, I S NOT AWARE OF ANY DATE OF HEARING FIXED BY THE LD. CIT(A). HENCE, THE APPELLA TE ORDER DATED 04.02.20 13 IS PASSED WITHOUT PROVIDING THE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE APPELLANT. THEREFORE, THE SAME MAY BE QUASHED AND S ET ASIDE. 3. TREATING THE CASH DEPOSITED IN THE SAVING BANK ACCO UNT AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT IS UNJUSTIFIED - RS. 11,38,900/- I. THE LD.. CIT(A) ERRED IN UPHOLDING THE ACTION OF TH E A.O. IN TREATING THE CASH AMOUNTING TO RS. 11,38,900/- DEPOSITED IN THE SAVIN G BANK ACCOUNT OF THE APPELLANT AS UNEXPLAINED CASH CREDIT UNDER SECT ION 68 OF THE ACT. THE APPELLANT PRAYS THAT THE ADDITION UNDER SECTION 68 OF THE ACT IS UNJUSTIFIED AND THE SAME MAY BE DELETED. II. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE CASH W AS DEPOSITED IN THE SAVING BANK ACCOUNT NO. 8034 MAINTAINED WITH PUNJAB & MAHARASHTRA CO-OP BANK OUT OF THE CASH WITHDRAWAL FROM THE CURR ENT ACCOUNT NO.9027 MAINTAINED WITH THE SAME BANK. HENCE, TREATING THE CASH DEPOSITED AMOUNTING TO RS.11,38,900/- IN THE SAVING BANK ACCOUNT OF THE APPELLANT AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT IS UNJUSTIFIED AND THE SAME MAY BE DELETED. 4. THE APPELLANT DENIES ANY LIABILITY TO PAY INTER EST UNDER SECTION 234B AND SECTION 234C OF THE ACT. HENCE, THE SAME IS NOT LEV IABLE. 3 ITA NO. 5956/MUM/2014 (ASSESSMENT YEAR : 2009-10) 3. AT THE OUTSET THE LD. REPRESENTATIVE FOR THE ASS ESSEE SUBMITTED THAT THE APPEAL OF THE ASSESSEE HAS BEEN DISPOSED O F BY THE CIT(A) EX- PARTE WITHOUT AFFORDING AN APPROPRIATE OPPORTUNITY OF BEING HEARD AND, THEREFORE, ASSESSEE WOULD BE SATISFIED FOR THE PRES ENT, IF THE MATTER IS RESTORED BACK TO THE FILE OF CIT(A) FOR ADJUDICATIO N AFRESH. THE LD. REPRESENTATIVE FOR THE ASSESSEE ALSO POINTED OUT TH AT THOUGH THE CIT(A) ISSUED THE NOTICE OF HEARING ON FOUR OCCASIONS BUT NONE OF THE NOTICES COULD REACH THE ASSESSEE BECAUSE AFTER FILING OF TH E APPEAL BEFORE CIT(A), THE ADDRESS OF THE ASSESSEE WAS CHANGED DUE TO THE SEALING AND DEMOLITION OF THE PREMISES BY THE LOCAL MUNICIPAL AUTHORITIES AND SUCH CHANGE OF ADDRESS WAS INADVERTENTLY NOT INTIMATED T O THE CIT(A). NEVERTHELESS, IT IS SOUGHT TO BE POINTED OUT THAT T HE ASSESSEE COULD NOT APPEAR BEFORE THE CIT(A), WHICH HAS RESULTED IN DEN IAL OF NATURAL JUSTICE AND, THEREFORE, IT WAS PRAYED THAT THE MATTER BE RE STORED BACK TO THE FILE OF CIT(A) FOR ADJUDICATION AFRESH. 4. LD. DEPARTMENTAL REPRESENTATIVE APPEARING FOR T HE REVENUE HAS NOT DISPUTED THE PRELIMINARY PRAYER OF THE ASSESSEE FOR RESTORATION OF MATTER BACK TO THE FILE OF CIT(A). 5. HAVING CONSIDERED THE RIVAL STANDS ON THE PRELI MINARY PLEA OF THE ASSESSEE, I FIND THAT SOME ELEMENT OF NEGLIGENCE C AN BE ATTRIBUTED TO THE CONDUCT OF THE ASSESSEE IN AS MUCH AS IT WAS TH E DUTY OF THE ASSESSEE TO PROMPTLY INFORM THE OFFICE OF THE CIT( A) OF THE CHANGE IN ADDRESS. NEVERTHELESS, THERE IS ALSO NO MATERIAL T O SAY THAT SUCH LAPSE ON THE PART OF THE ASSESSEE WAS ON ACCOUNT OF ANY NON-BOANAFIDE OR INTENTIONAL REASONS. CONSIDERING THE ENTIRETY OF F ACTS AND CIRCUMSTANCES OF THE CASE, I DEEM IT FIT AND PROPER TO ACCEPT THE PLEA OF THE ASSESSEE 4 ITA NO. 5956/MUM/2014 (ASSESSMENT YEAR : 2009-10) THAT THE MATTER BE REVISITED BY THE CIT(A) AFTER C ONSIDERING THE PLEAS OF THE ASSESSEE ON MERIT. FOR THIS PURPOSE, I SET AS IDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR AN ADJUDICATION AFRESH AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNIT Y OF BEING HEARD, AS PER LAW. 6. THUS, FOR STATISTICAL PURPOSES THE APPEAL OF THE ASSESSEE IS TREATED AS PARTLY ALLOWED. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF THE HEARING ON 20/10/2015. SD/- (G.S. PANNU) ACCOUN TANT MEMBER MUMBAI, DATED 20/10/2015 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./ASSTT. REGISTRAR) ITAT, MUMBAI VM , SR. PS