SULOCHANA P. GAIKWAD, MUMBAI V. ITO 11(1)(4), MUMBAI

ITA 6443/MUM/2010

• Counselvise Citation: 644319914 RSA 2010
• Duration Of Justice: 1 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 01-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARTHA SARATHI NAIK
• Assessee Lawyers: VISHWAS N MEHENDALE
• Keywords: Opportunity of being heard; Additional evidence; Non compliance
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER & SHRI VIVEK VARMA, JUDICIAL MEMBER. I.T.A. NO. 6443/MUM/2010. ASSESS MENT YEAR : 2007-08 MS. SULOCHANA P. GAIKWAD, THE INCOME-TAX OFFICER, R.NO. 553/5, SHANTIVAN (E) VS. 11(1)(4), MUMBAI. CO.OP. SOC., OSHIWARA, AANDHERI (W), MUMBAI 400058. PAN AEZPG5034R. APPELLANT. RESPONDENT. APPELLANT BY : SHR I VISHWAS N. MEHENDALE. RESPONDENT BY : SHRI PARTHASARATHI NAIK. DATE OF HEARI NG : 02-04-2012. DATE OF PRONOUNC EMENT :11-04-2012, O R D E R PER P.M. JAGTAP, A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED CIT(APPEALS)-3, DATED 15-06-2010 WHEREBY HE UPHELD THE ORDER PASSED BY THE AO U/S 144 AND ALSO CONFIRMED ALL THE ADDITIONS MADE T HEREIN BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L WHO IS CARRYING ON THE PROFESSION OF MODELING AND ACTING. THE RETURN OF IN COME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HER ON 15-10-2007 DECLAR ING TOTAL INCOME OF RS.6,72,572/-. THE CASE OF THE ASSESSEE WAS SELECTE D FOR SCRUTINY ASSESSMENT. DURING THE COURSE OF THE SCRUTINY PROCEEDINGS, THE ASSESSEE FAILED TO COMPLY FULLY 2 ITA NO.6443/MUM/2010. WITH THE NOTICES ISSUED BY THE AO FIXING HER CASE F OR HEARING FROM TIME TO TIME. THE ASSESSEE ALSO FAILED TO PRODUCE THE DETAILS AND DOCUMENTS REQUIRED BY THE AO FOR THE PURPOSE OF ASSESSMENT. THE AO, THEREFORE, P ROCEEDED TO COMPLETE THE ASSESSMENT EXPARTE U/S 144 TO THE BEST OF HIS JUDGM ENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND COMPUTED THE TOTAL INCOME O F THE ASSESSEE AT RS.89,36,696/- AFTER MAKING THE FOLLOWING ADDITIONS : I) ON ACCOUNT OF LOW WITHDRAWAL RS. 1,08,000/- II) ON ACCOUNT OF UNSECURED LOAN RS.64,20,124/- III) ON ACCOUNT OF CASH DEPOSIT RS.17,36,000/- ------------------------- --- TOTAL : RS.82,64,124/- -------------------------- --- 3. AGAINST THE ORDER PASSED BY THE AO U/S 144, AN A PPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS) CHALLENGIN G THE VALIDITY OF THE SAID ASSESSMENT AS WELL AS DISPUTING ALL THE THREE ADDIT IONS MADE THEREIN ON MERITS. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE T HE LEARNED CIT(APPEALS), THE ASSESSEE AGAIN FAILED TO FULLY COMPLY WITH THE NOTI CES ISSUED FIXING THE HEARING FROM TIME TO TIME. AS NOTED BY THE LEARNED CIT(APPE ALS) IN HIS IMPUGNED ORDER, EVEN THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE WAS NOT SUPPORTED BY AN APPLICATION MADE UNDER RULE 46A OF THE INCOME-TAX R ULES AS REQUIRED. THE LEARNED CIT(APPEALS), THEREFORE, DID NOT ADMIT THE ADDITION AL EVIDENCE FILED BY THE ASSESSEE AND DISMISSED THE APPEAL OF THE ASSESSEE ON MERIT U PHOLDING THE ORDER PASSED BY THE AO U/S 144 AS WELL AS CONFIRMING ALL THE THREE ADDITIONS MADE BY THE AO IN THE SAID ASSESSMENT. AGGRIEVED BY THE ORDER OF THE LEAR NED CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. ALTHOUGH THE LEARNED COUNSEL FO R THE ASSESSEE HAS SUBMITTED 3 ITA NO.6443/MUM/2010. BEFORE US RELYING ON THE AFFIDAVIT FILED BY THE ASS ESSEE THAT THE NOTICES ISSUED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS AT O LD ADDRESS WERE NOT RECEIVED BY THE ASSESSEE AS SHE HAD SHIFTED TO THE NEW ADDRE SS, IT IS OBSERVED THAT THERE IS NOTHING ON RECORD TO SHOW THAT THE NEW ADDRESS WAS INFORMED BY THE ASSESSEE TO THE AO WELL IN TIME. IT IS ALSO OBSERVED THAT ON ON E OR TWO OCCASIONS, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE DID APPEA R BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHICH CLEARLY SHOW S THAT THE ASSESSEE WAS AWARE OF THE SCRUTINY ASSESSMENT PROCEEDINGS INITIATED IN HER CASE. IT IS FURTHER OBSERVED THAT THIS NON COMPLIANT ATTITUDE OF THE ASSESSEE CO NTINUED EVEN DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(APPEAL S) INASMUCH AS MOST OF THE NOTICES ISSUED BY THE LEARNED CIT(APPEALS) FIXING T HE APPEAL OF THE ASSESSEE FOR HEARING REMAINED UNCOMPLIED WITH. EVEN THE ADDITION AL EVIDENCE SOUGHT TO BE FILED BY THE ASSESSEE WAS NOT SUPPORTED BY AN APPLICATION SEEKING ADMISSION THEREOF AS REQUIRED BY RULE 46A OF THE INCOME-TAX RULES. ALL T HESE FACTS CLEARLY SHOW THAT IT IS A CASE WHERE THE ASSESSEE HAS CLEARLY FAILED TO COMPLY WITH THE NOTICES ISSUED BY THE AO AS WELL AS BY THE LEARNED CIT(APPEALS). IT I S, HOWEVER, OBSERVED THAT THE DOCUMENTS SOUGHT TO BE FILED BY THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS) AS ADDITIONAL EVIDENCE, COPIES OF WHICH ARE PLACED IN THE PAPER BOOK FILED BY THE ASSESSEE BEFORE US, APPEAR TO BE A RELEVANT EVIDENC E FOR THE PURPOSE OF DECIDING THE ISSUE INVOLVED IN THE CASE OF THE ASSESSEE AND IN T HE INTEREST OF JUSTICE, IT WOULD BE FAIR AND PROPER TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUPPORT AND SUBSTANTIATE HER CASE ON THE BASIS OF THE SAID EVID ENCE. IN OUR OPINION, THIS OPPORTUNITY, HOWEVER, CAN BE GIVEN TO THE ASSESSEE ONLY SUBJECT TO PAYMENT OF SOME COST. ACCORDINGLY, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF THE AO FOR MAKING THE ASS ESSMENT AFRESH AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND TO PRODU CE THE DOCUMENTARY EVIDENCE 4 ITA NO.6443/MUM/2010. TO SUPPORT AND SUBSTANTIATE HER CASE SUBJECT TO A P AYMENT OF A COST OF RS.10,000/- WHICH THE ASSESSEE SHALL PAY TO THE DEPARTMENT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 11 TH DAY OF APRIL, 2012. SD/- SD/- (VIVEK VARMA) ( P.M. JAGTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED: 11 TH APRIL, 2012. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, E-BENCH. (TRUE COPY) BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI. WAKODE