FORAM HEMAL DEDHIA, MUMBAI V. ITO 21(1)(4), MUMBAI

ITA 6596/MUM/2012

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9417 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2015
• Appeal Filed By: Assessee
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 31-10-2012
• Court: TRIBUNAL
• Department Lawyers: PAWAN KU MAR BEERLA
• Assessee Lawyers: DR PRAKASH JHA
• Keywords: Opportunity of being heard; Principle of natural justice; Source of fund; Additional evidence; Condonation of delay
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F , BENCH MUMBAI , BEFORE : SHRI R.C.SHARMA, AM & SHRI VIVEK VARMA , JM ITA NO. 6596 / MUM/20 1 2 ( ASSESSMENT YEAR : 20 0 9 - 10 ) SMT. FORAM HEMAL DEDHIA, 301, VIMAL APTS., NEHRU ROAD, VILE PARLE (E), MUMBAI - 400 047 VS. ITO 21(1)(2), MUMBAI PAN/GIR NO. : A GJPD 1382 R ( APP ELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : DR. PRAKASH JHA /REVENUE BY : SHRI PAWAN KUMAR BEERLA DATE OF HEARING : 12 / 01 /201 5 DATE OF PRONOUNCEMENT : 25 /0 2 /2015 O R D E R PER R.C.SHARMA ( A .M.) : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 31 - 7 - 2012 , FOR THE ASSESSMENT YEAR 20 0 9 - 10 , IN THE MATTER OF ORDER PASSED U/S. 143(3) OF THE I.T.ACT . 2 . AS PER OFFI CE NOTE, THERE IS A DELAY OF TWO DAYS IN FILING THE APPEAL. THE ASSESSEE HAS FILED APPLICATION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT. CONSIDERING THE APPLICATION OF THE ASSESSEE FOR DELAY IN FILING THE PRESENT APPEAL, WE CONDONE THE DELAY. 3 . IN TH IS APPEAL THE ASSESSEE IS AGGRIEVED BY THE ADDITION CONFIRMED BY THE CIT(A) U/S.68 OF THE I.T.ACT. ITA NO. 6596 /20 1 2 2 4 . RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. F ACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE DERIVES INCOME FROM STITCHING BUSINESS AND RETURN S HOWING INCOME OF RS . 1,76,130 / - WAS FILED. DURING ASSESSMENT PROCEEDINGS ONLY PARTIAL DETAILS WERE FURNISHED IN RESPONSE TO THE QUESTIONNAIRE AND NO ONE ATTENDED ON 21 / 12/2011 I.E ON THE DATE OF HEARING AND HENCE THE AO COMPLETED THE ASSESSMENT ON THE BASI S OF MATERIAL AVAILABLE ON RECORD. FROM THE COPY OF THE BANK STATEMENT SUBMITTED BY ASSESSEE IT WAS NOTED THAT THE APPELLANT DEPOSITED CASH TO THE TUNE OF RS.24,61,800 / - IN SAVING BANK ACCOUNT NO .017050101113 COSMOS COOPERATIVE BANK, VILE PARLE BRANCH STAN DING IN THE NAME OF APPELLANT JOINTLY WITH HEMAL B DEDHIA AND RS.30,00,000 1 - IN SAVING BANK ACCOUNT NO.0 170501038261 STANDING IN THE JOINT NAMES OF APPELLANT WITH PINAK B DEDHIA AT COSMOS COOPERATIVE BANK, VILE PARLE BRANCH. SINCE THE ASSESSEE DID NOT EX PLAIN THE SOURCE OF CASH DEPOSITS IN THE BANK A/C TOTALING TO RS 54,61,800 / - , THE AO ADDED THE SAME AS UNEXPLAINED INCOME U/S 68. 5 . AT THE OUTSET, LD. AR SUBMITTED THAT IN CASE OF OTHER FAMILY MEMBERS OF THE ASSESSEE WHO WERE JOINT HOLDER OF THE VERY SAM E BANK ACCOUNT WHEREIN AMOUNT WAS FOUND TO BE DEPOSITED AND WITH REFERENCE TO WHICH ADDIT IONS WERE MADE BY THE AO U/S.68, WERE RESTORED BY THE TRIBUNAL TO THE FILE OF AO VIDE ORDER DATED 28 - 2 - 2014 AND 12 - 8 - 2014 . 6. WE HAVE HEARD BOTH THE PARTIES AND PERUS ED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED ORDER OF THE TRIBUNAL . ON PERUSAL OF THE SAID ORDER OF THE TRIBUNAL DATED 28 - 2 - 2014 , WE FIND PARA 10 IS RELEVANT IN THIS REGARD AND FOR THE SAKE OF COMPLETENESS OF THIS ORDER THE SAID PARA IS RE PRODUCED HERE WHICH READS AS UNDER: ITA NO. 6596 /20 1 2 3 '10. FROM THE ORDERS PASSED BY THE ID CIT (A), WE NOTICE THAT THE FIRST APPELLATE AUTHORITY HAS PROCEEDED TO DECIDE THE ISSUES AFTER CONSI DERING THE SUBMISSIONS MADE B Y THE ASSESSEE. IT IS NOT KNOWN AS TO WHETHER THE FI RST APPELLATE AUTHORITY DI D CALL FOR THE DETAILS RELATING TO THE LOAN TRANSACTIONS OF EARLIER YEARS OR NOT. SIMILARLY IT IS NOT KNOWN AS TO WHETHER THE ASSESSING OFFICER ALSO DID CALL FOR SUCH KIND OF DETAILS . HENCE, WE FIND MERIT IN THE CL AIM OF THE ASSES SEES THAT THEY DID NOT GET SUFFICIENT OPPORTUNITIES TO SUBSTANTIATE THEIR SUBMISSIONS. FURTHER, WE NOTICE THAT THE LD CIT (A) HAS PROCEEDED TO ADJUDICATE THE ISSUE BY MAKING CERTAIN OBSERVATIONS ABOUT THE FAILURE OF THE ASSESSEE TO FURNISH THE DETAILS AND T HE SAID OBSERVATIONS ARE SERIOUSLY DISPUTED BY THE LD AR. FURTHER, THE VERY FACT THAT THE ASSESSEES HAVE FILED COPIES OF THE RETU RN S OF INCO ME FILED FOR EARLIER YEARS AS ADDITIONAL EVIDENCES WOULD SHOW THAT THEY WERE NOT F U RN IS H ED BEFORE THE AO DU RING THE COURSE OF ASSESSMENT PROCEED INGS . EVEN THOUGH, THE LD DR CONTENDS THAT ALL THOSE DOCUMENTS HAVE BEEN EXAMINED BY THE LD CIT (A), YET THE FACT REMAINS THAT THE LD CIT (A) HAS MADE CERTAIN PRESUMPTIONS BEFORE PROCEEDING TO ADJUDICATE THE ISSUES AND THE SAID PR ESUMPTION ENTERTAINED BY THE LD.CIT (A) IS BEING QUESTIONED BY THE ASSESSEES. UNDER THESE CI RCUMSTANCES, IN THE INTEREST OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT THE ENTIRE MATTER NEEDS TO BE ADJU DICATED AFRESH AT THE END OF TH E ASSESSING OFFICER. ACCORD INGLY, WE SET ASIDE THE ORDERS PASSED BY THE LD CIT (A) IN BOTH THE CASES, INSOFAR AS THEY RELATE TO THE ADDITIONS CONFIRMED BY HIM AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER FOR FRESH EXAMINATION. THE A O IS DIRECTED TO EXAMINE THE ISSUES AFR ESH AFTER AFFORDING NECESSARY OPPORTUNITY OF BEING HEARD AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH THE LAW.' 7 . CONSIDERING THE ABOVE, WE ARE OF THE OPINION THAT THE ISSUE UNDER CONSIDERATION SHOULD BE SET ASIDE TO THE FILE OF THE AO FOR FRESH AD JUDICATION. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8 . BEFORE PARTING WITH THE MATTER, WE DIRECT THE ASSESSEE TO APPEAR BEFORE THE AO WITHIN A PERIOD OF ONE MONTH FROM THE DATE OF ISSUE OF THIS ORDER AND FILE THE EVIDENCE BEFORE AO REGARDING SOURCE OF FUNDS DEPOSITED IN THE BANK ACCOUNT, AND TO COOPERATE THE AO IN ALL RESPECT FOR EARLY COMPLETION OF THE ASSESSMENT. IN CASE OF ANY FAILURE ON THE PART OF THE ASSESSEE, THE AO WILL BE AT A LIBERTY TO PASS NECESSARY ORD ER AS PER MATERIALS PLACED ON RECORD . WE DIRECT ACCORDINGLY. ITA NO. 6596 /20 1 2 4 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH FEB. 201 5 . SD/ - SD/ - ( ) ( VIVEK VARMA ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 25 / 0 2 /201 5 /PKM , PS COPY OF THE ORDER FORWARD ED 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//