SMT.LAXMI A SHETTY, MUMBAI V. ITO 20(1)(4), MUMBAI

ITA 6001/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7490 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 22-10-2018
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . . , , BEFORE HONBLE SHRI C.N. PRASAD, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.6001/MUM/2018 ( / ASSESSMENT YEAR: 2006-07) SMT. LAXMI A. SHETTY 704, PRIYADARSHINI PARK OM NAGAR, D.P. ROAD SAHAR VILLAGE, ANDHERI (E) MUMBAI-400 059. / VS. INCOME TAX OFFICER - 20( 1 )(4) MUMBAI. ! ./ ./PAN/GIR NO. AYWPS-0408-E ( !# /APPELLANT ) : ( $!# / RESPONDENT ) ASSESSEE BY : SHRI SNEHAL R. SHAH- LD. AR REVENUE BY : SHRI ABDUL HAKEEM M - LD.DR / DATE OF HEARING : 30/04/2019 / DATE OF PRONOUNCEMENT : 03/05/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2006-07 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-36, MUMBAI [CIT(A)], APPEAL NO. CIT(A)-31/IT-310/ITO-20(1)(4)13-14 D ATED 06/05/2015 ON FOLLOWING GROUNDS OF APPEAL: - 1. THE LD CIT (A)-36 HAS ERRED IN CONFIRMING THE OR DER PASSED BY THE LEARNED ASSESSING OFFICER 20(1)(4), MUMBAI WITHOUT APPRECIA TING THE FACT OF THE CASE IN THE RIGHT PERSPECTIVE. 2. THE LD. CIT(A)-36 FAILED TO APPRECIATE THAT THE LD. ASSESSING OFFICER HAS GROSSLY ERRED IN PASSING ORDER U/S 144 R.W.S 147 OF THE ACT 1961 EVEN WITHOUT 2 APPRECIATING THE FACT THAT THE APPELLANT IS REGULAR IN FILING RETURN OF INCOME YEAR ON YEAR. 3. THE LD. ASSESSING OFFICER HAS ERRED IN CONCLUDIN G THAT THE APPELLANT HAS NOT FILED ANY RETURN OF INCOME FOR THE YEAR UNDER REFERENCE D ESPITE THE FACT THAT THE APPELLANT HAS ACTUALLY FILED THE RETURN OF INCOME O N 15.04.2008 FOR THE YEAR UNDER REFERENCE. 4. THE LEARNED ASSESSING OFFICER HAS ERRED IN STATING T HAT THE APPELLANT HAS NOT FILED THE RETURN OF INCOME FOR AY 2005-06 DESPITE THE FACT THAT THE NOTICE ISSUED U/S 148 PERTAINS TO AY 2006-07 AND NOT AY 2005-06 AS ERRONEOUS LY REFERRED BY HIM. 5. THE LD. CIT(A)-36 HAS MERELY RELIED ON THE ORDER PASSED BY THE LD. ASSESSING OFFICER WHO FAILED TO APPRECIATE THAT THE APPELLANT HAS THROUGH HIS REPRESENTATIVE CA DINESH SHAH, HAD SPECIFICALLY ATTENDED THE HEARING AND REQUESTED THE LD. ASSESSING OFFICER TO TREAT THE RETURN FILED U/S 139( 1) ON 15.04.2008 AS A RESPONSE TO NOTICE U/S 148 OF THE ACT, 1961 AND HAD FURTHER FAILED TO GIVE THE COPY OF THE REASONS RECORDED AND THE COPY OF THE APPROVAL SOUGH T BY HIM. 6. THE LEARNED ASSESSING OFFICER HAS ERRED IN CONFI RMING AN ADDITION OF RS.40,00,000/-, BY ERRONEOUSLY TREATING THE PURCHASE OF PROPERTY A S UNEXPLAINED INVESTMENTS WITHOUT APPRECIATING THE FACTS OF THE CASE IN RIGHT PERSPECTIVE. 2.1 FACTS IN BRIEF ARE THAT THE ASSESSEE BEING RESIDENT INDIVIDUAL WAS ASSESSED FOR IMPUGNED AY ON BEST JUDGMENT BASIS U/S. 144 R.W.S. 147 OF THE ACT ON 04/03/2014 WHEREIN THE INCOME OF THE ASS ESSEE WAS DETERMINED AT RS.40.00 LACS. THE RE-ASSESSMENT PROC EEDING WAS TRIGGERED UPON FORMATION OF BELIEF THAT THE ASSESSE E ENTERED INTO PROPERTY TRANSACTION FOR RS.40.00 LACS DURING THE I MPUGNED AY, THE SOURCE OF WHICH REMAINED UNEXPLAINED. IT WAS ALSO N OTED THAT THE ASSESSEE DID NOT FILE ORIGINAL RETURN OF INCOME FOR THE IMPUGNED AY SINCE THE ASSESSEE NEITHER FILED THE COPY OF ACKNOWLEDGEM ENT OF THE RETURN OF INCOME NOR FILED ANY REPLY TO NOTICE DATED 07/12/20 12. ACCORDINGLY, NOTICE U/S 148 WAS ISSUED ON 05/03/2013 AFTER REQUI SITE APPROVALS WHICH WAS FOLLOWED BY NOTICE U/S 142(1). HOWEVER, THE ASS ESSEE FAILED TO RESPOND TO THE SAID NOTICES AND DID NOT ATTEND THE ASSESSMENT PROCEEDINGS. 2.2 IN THE ABOVE BACKGROUND, LD. AO PROCEEDED TO DE TERMINE THE INCOME OF THE ASSESSEE ON BEST JUDGMENT BASIS US/ 144 AND 3 ACCORDINGLY, THE AFORESAID INVESTMENT OF RS.40 LACS WAS ADDED TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTMEN T U/S 69. 3. ALTHOUGH THE ASSESSEE PREFERRED APPEAL AGAINST T HE SAME, HOWEVER, THE CONDUCT OF THE ASSESSEE, REMAINED MORE OR LESS THE SAME SINCE THE ASSESSEE FAILED TO ATTEND THE APPELL ATE PROCEEDINGS ON VARIOUS OCCASIONS, WHICH HAVE ALREAD Y BEEN TABULATED AT PARA 2 OF THE IMPUGNED ORDER. RESULTANTLY, THE ADDITION WAS CONFIRMED, AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4.1 THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [AR], AT THE OUTSET, DRAWING OUR ATTENTION TO THE DOCUMENTS PLAC ED IN THE PAPER-BOOK, SUBMITTED THAT REASSESSMENT PROCEEDINGS HAVE BEEN INITIATED ON ERRONEOUS ASSUMPTION OF FACTS SINCE TH E ASSESSEE HAD, IN FACT, FILED THE RETURN OF INCOME FOR IMPUGN ED AY ON 15/04/2008 WHEREIN THE STATED INVESTMENTS WERE REFL ECTED IN THE BALANCE SHEET OF THE ASSESSEE. OUR ATTENTION IS DRAWN TO THE FACT THAT OPENING LINE OF QUANTUM ASSESSMENT ORDER RECOR D A FINDING THAT THE RETURN OF INCOME FOR AY 2005-06 HAS NOT BE EN FILED BY THE ASSESSEE WHEREAS THE AY UNDER QUESTION IS AY 2006-0 7. 4.2 IT WAS FURTHER SUBMITTED THAT THE ASSESSEE PURC HASED SHOP NOS. 9 & 10, GROUND FLOOR, SAI UDYAN CO-OP. HSG. SO CIETY LTD., PLOT NO.25, SECTOR-14, VASHI, NAVI MUMBAI FOR A CONSIDERATION OF RS.42.30 LACS WHICH WAS PARTLY FINANCED BY WAY OF L OAN FROM VIJAYA BANK FOR RS.36 LACS AND THE BALANCE AMOUNT W AS PAID OUT OF FAMILY SAVINGS OVER THE YEARS. OUR ATTENTION IS FURTHER DRAWN TO THE FACT THAT THE SAID PROPERTY WAS SOLD BY THE ASS ESSEE DURING AY 2007-08 AND THE GAINS / LOSSES WERE DULY REFLECTED IN RETURN OF 4 INCOME FOR AY 2007-08 WHICH WAS FILED ON 20/01/2009 . THEREFORE, THERE COULD BE NO OCCASION TO CONSIDER THE INVESTME NT AS UNEXPLAINED INVESTMENT. OUR ATTENTION HAS BEEN DRAW N TO THE SUPPORTING DOCUMENTS PLACED IN THE PAPER-BOOK. IN THE ABOVE BACKGROUND, THE LD. AR PLEADED TO QUASH THE REASSES SMENT PROCEEDINGS AND DELETE THE IMPUGNED ADDITION. THE LD. DR CONTROVERTED THE SAME BY DRAWING OUR ATT ENTION TO THE FACT THAT THE ASSESSEE FAILED TO REPRESENT HIS CASE BEFORE ANY OF THE LOWER AUTHORITIES AND THEREFORE, THE MATTER MAY BE REMANDED BACK FOR RECONSIDERATION. 5. UPON CAREFUL CONSIDERATION, IT TRANSPIRES THAT T HE ASSESSEE HAS REMAINED NEGLIGENT IN ATTENDING THE ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEEDINGS. ALL THE SUBMISSIO NS MADE BEFORE US WERE NEVER PLACED FOR CONSIDERATION OF LO WER AUTHORITIES WHICH IS EVIDENT FROM THE FACT THAT THE ASSESSMENT WAS FRAMED ON BEST JUDGMENT BASIS U/S 144. THEREFORE, KEEPING ALL THE ISSUES OPEN, WE REMIT THE MATTER BACK TO THE FILE OF LD. A O FOR RE- ADJUDICATION WITH A DIRECTION TO THE ASSESSEE TO SU BSTANTIATE HIS STAND FAILING WHICH THE LD. AO SHALL BE AT LIBERTY TO PROCEED WITH THE MATTER ON THE BASIS OF MATERIAL ON RECORD. 6. RESULTANTLY, THE APPEAL STANDS ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD MAY 2019. SD/- SD/- (C.N. PRASAD) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER 5 MUMBAI; DATED : 03/05/2019 SR.PS, JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $!# / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT CONCERNED 5. ,- & . , . , / DR, ITAT, MUMBAI 6. -/01 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.