OZONE INFRA PROJECTS, MUMBAI V. DCIT CEN CIR 2, THANE

ITA 6647/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0447 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 17-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Section: 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI SMC BENCHES , MUMBAI , BEFORE SHRI JOGINDER SINGH, J UDICIAL M EMBER ITA NO . 6647 /MUM/20 1 7 ASSESSMENT YEAR: 20 11 - 12 M/S. OZONE INFRA PROJECTS, A1 - 104, ORCHID PLAZA, RK THAKUR ROAD, DAHISAR, MUMBAI 400 068 / VS. DCIT, CENTRAL CIRCLE - 2, THANE. ( /ASSESSEE) ( / REVENUE) P.A. NO. AACFO 3777 E / ASSESSEE BY SHRI DHARAN GANDHI AR / REVENUE BY MS. N. HEMALATHA - DR / DATE OF HEARING : 13 /02 /201 8 / DATE OF ORDER : 13 /0 2 /201 8 / O R D E R THE ASSESSE E IS AGGRIEVED BY THE IMPUGNED ORDER DATED 03 /0 8 /201 7 OF THE LD. FIRST AP PELLATE AUTHORITY, MUMBAI , CONFIRMING THE TAX LIABILITY OF RS. 3,39,998/ - AND ADDITION OF RS. 15,50,000/ - ON ACCOUNT OF CASH DEPOSITED BY THE ASSESSEE IN BANK ACCOUNT. ITA NO. 6647/MUM/2017 M/S. OZONE INFRA P ROJECTS 2 2. DURING HEARING, I HAVE HEARD SHRI DHARAN GANDHI LD. COUNSEL FOR THE ASSESSEE . THE CRUX OF ARGUMENTS ADVANCED ON BEHALF OF THE ASSESSEE IS THAT NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FOR MAKING ENHANCEMENT . THE LD. DR CONTENDED THAT REASONABLE VIEW HAS BEEN TAKEN BY THE LD.FIRST APPELLAT E AUTHORITY, BUT DID NOT CONTROVERT THE CLAIM OF THE ASSESSEE THAT ENHANCEMENT NOTICE WAS NOT GIVEN TO THE ASSESSEE . 3 . I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOTED THAT A SEARCH WAS CARRIED OUT ON S MC GROUP ON 23/05/2012 ALONG WITH THE PRESENT ASSESSEE . NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSEE ON 31/07/2013 TO WHICH THE ASSESSEE FILED E - RETURN ON 24/03/ 2014 . WITHOUT GOING INTO MUCH DELIBERATION , THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT NO OPPORTUNITY WAS PROVIDED TO THE ASSESSEE FOR MAKING THE ENHANCEMENT. IT IS NOTED THAT AS PER SECTION 251(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) , THE LD. FIRST APPELLATE AUTHORITY SHALL NOT ENHANCE AN ASSESSMENT OR A PENAL TY OR REDUCE THE AMOUNT REFUND UNLESS THE ASSESSEE ITA NO. 6647/MUM/2017 M/S. OZONE INFRA P ROJECTS 3 IS GIVEN A REASONABLE OPPORTUNITY OF SHOW - CAUSE AGAINST SUCH ENHANCEMENT OR REDUCTION . IT IS WORTH MENTIONING THAT I AM NOT GOING INTO THE MERITS OF THE APPEAL, BUT AGREE WITH THE CONTENTION OF LD. COUNSE L FOR THE ASSESSEE THAT BEFORE MAKING THE ENHANCEMENT, THE ASSESSEE WAS EXPECTED TO BE GIVEN AN OPPORTUNITY /SHOW - CAUSE FOR MAKING SUCH ENHANCEMENT . THUS, THE APPEAL OF THE ASSESSEE IS REMANDED BACK TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) TO PROVIDE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE FACTUAL MATRIX AND ADJUDICATE A FRESH ON MERITS. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. T HIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FRO M BOTH SIDES AT T H E CONCLUSION OF THE HEARING ON 13 /0 2/2018. S D/ - (JOGINDER SINGH) / JUDICIAL MEMBER MUMBAI; DATED : 13 /02 /20 1 8 VR , P.S/. . . ITA NO. 6647/MUM/2017 M/S. OZONE INFRA P ROJECTS 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A) - , MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI