VIJAYA RAJKUMAR BHOGLE, MUMBAI V. ITO 17(3)(5), MUMBAI

ITA 6026/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 9638 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 44AD; 201

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI AMARJIT SINGH (JM) I.T.A. NO. 6026 /MUM/ 201 8 (ASSESSMENT YEAR 20 09 - 10 ) VIJAYA RAJKUMAR BHOGLE FLAT NO. 71, 7 TH FLOOR ADVENT BUILDING GENERAL BHOSLE MARG MUMBAI - 400 021. PAN : ADNPB9404D V S . ITO - 17(3)(5) AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI SUBODH RATNAPARKHI DEPARTMENT BY SHRI CHAITANYA ANJARIA DATE OF HEARING 03 . 09 . 201 9 DATE OF PRONOUNCEMENT 02.12 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : - THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT (A) DATED 17.8.2018 AND PERTAINS TO ASSESSMENT YEAR 2009 - 10. 2. T HE ISSUE RAISED IS THAT THE CIT (A) ERRED IN S USTAINING THE ADDITION OF RS. 25,23,267 / - AS UNEXPLAINED DEPOSIT IN THE BANK BY AN EX PARTE ORDER . 3. I N THIS CASE ASSESSMENT WAS REOPENED FOR EXAMINING THE ISSUE OF CASH DEPOSITS IN ASSESSEES BANK ACCOUNT. 4 . U PON ASSESSING OFFICER S ENQUIRY REGARDING THE SOURCE OF CASH DEP OSITS IN THE BANK ASSESSEE EXPLAINED THAT ASSESSEE IS ENGAGED INTO BEAUTY PARLOUR BUSINESS. THAT ASSESSEE HAS FILED RETURN UNDER SECTION 44AD OF THE ACT. THE ASSESSEES INCOME FROM BE AUTY PARLOUR BUSINESS WAS RS. 16,77,871 / - . A CCORDINGLY IT WAS SUBMITTED T HAT THE PROFITS SHOWN IN THE PROFIT AND LOSS ACCOUNT ARE ADEQUATE. ASSESSEE ALSO SUBMITTED THE COPIES OF BANK STATEMENT. THE ASSESSING OFFICER HELD THAT TOTAL DEPOSITS IN THE BANK ACCOUNT INCLUDING CASH, RTGS AND CHEQUE PAYMENT WERE RUPEES 42,01,138 / - . H E ADDED THE VIJAYA RAJKUMAR BHOGLE 2 DIFFERENCE BETWEEN THE GROSS RECEIPT SHOWN IN THE PROFIT AND LOSS ACCOUNT AND THE ABOVE BANK DEPOSIT AS UNEXPLAINED INCOME OF THE ASSESSEE . 4. UPON ASSESSEES APPEAL BY AN EX PARTE ORDER LEARNED CIT (A) CONFIRMED THE ACTION OF THE ASSESSING OFFI CER. 5. AGAINST THIS ORDER ASSESSEE IS IN APPEAL BEFORE ITAT. WE HAVE HEARD BOTH THE COUN S EL AND PERUSED THE RECORDS. LEARNED COUNSEL OF THE ASSESSEE S UBMITTED THAT THE ASSESSEES DEPOSITS IN BANK IN CASH ARE ONLY RUPEES 21,18,426 / - . H E SUBMITTED THAT ASS ESSEES BANK DEPOSITS INCLUDE MATURITY PROCEEDS OF FIXED DEPOSIT, INCOME FROM AGRICULTURAL BUSINESS, TRANSFER FROM INTERBANK ACCOUNTS. FURTHER LEARNED COUNSEL SUBMITTED THAT THERE WAS REASONABLE CAUSE WHY THE ASSESSEE WAS NOT PRESENTED BEFORE THE LEARNED C IT(A). IN THIS REGARD ASSESSEE HAS ALSO FILED AN AFFIDAVIT BEFORE US. LEARNED COUNSEL OF THE ASSESSEE PRAYED THAT TH E MATTER BE MATTER TO THE FILE OF ASSESSING OFFICER AND THE ASSESSEE MAY BE ALLOWED AN OPPORTUNITY TO EXPLAIN. 6. UPON CAREFUL CONSIDERATIO N WE FIND CONSIDERABLE COGENCY IN THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESSEE. IN OUR CONSIDERED OPINION THE INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER IS REMIT T ED TO THE FILE OF ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO CONSI DER THE ISSUE DE NOVO IN LIGHT OF THE SUBMISSIONS OF THE LEARNED COUNSEL OF THE ASSESSEE. NEEDLESS TO ADD ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD 7. I N THE RESULT APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES ORDER HAS BE EN PRONOUNCED IN THE COURT ON 02.12 . 201 9 . SD/ - SD/ - ( AMARJIT SINGH ) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 02 / 1 2 / 20 1 9 COPY OF THE ORDER FORWARDED TO : VIJAYA RAJKUMAR BHOGLE 3 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI