ITO 17(2)(2), MUMBAI V. PRADIPBHAI NATHALAL SHAH, MUMBAI

ITA 6733/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2798 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 11-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 05-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M DAYASAGARDR
• Keywords: Opportunity of being heard; Peak credit; Additional evidence
• Section: 142(1); 131; 144

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.6733/MUM/2012 ASSESSMENT YEAR- 2009-10 ITO-17(2)(2), R. NO.212, 2 ND FLOOR, PIRAMAL CHAMBERS, MUMBAI-400012 / VS. SHRI PRADIPBHAI NATHALAL SHAH, FLAT NO.13, 3 RD FLOOR, PLOT NO.286, KALYAN APT. NEAR GANDHI MARKET, SION, MUMBAI-400022 ( / REVENUE) ( ! /ASSESSEE) PAN. NO. AAGPS3934D / REVENUE BY SHRI M. DAYASAGAR-DR ! / ASSESSEE BY SHRI SUBRAMANIAN ' # $ ! % / DATE OF HEARING : 09/11/2015 $ ! % / DATE OF ORDER: 24/11/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 06/08/2011 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO A DOPTING THE PEAK CREDIT THEORY WITHOUT APPRECIATING THAT ON US IS UPON THE ASSESSEE TO EXPLAIN AND SUBSTANTIATE THE SHRI PRADIPBHAI NATHALAL SHAH ITA NO.6733/MUM/2012 2 GENUINENESS AND TRUE NATURE OF CREDIT AND DEBIT ENT RIES AND FURTHER WITHOUT PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE ADDITIONAL EVIDENC E, FILED BY THE ASSESSEE, THUS, THERE IS VIOLATION OF RULE-46A OF THE RULES. 2. DURING HEARING OF THIS APPEAL, THE LD. DR, SHRI M. DAYASAGAR, ADVANCED ARGUMENTS WHICH IS IDENTICAL TO THE GROUND RAISED BY SUBMITTING THAT WORKING OF THE PEA K WAS NOT PROVIDED TO THE ASSESSING OFFICER THAT TO WITHO UT PROVIDING OPPORTUNITY, THEREFORE, THERE IS VIOLATIO N OF RULE- 46A. IT WAS ALSO CONTENDED THAT NO REMAND REPORT W AS SOUGHT FROM THE ASSESSING OFFICER. ON THE OTHER HA ND, SHRI SUBRAMNIAN, LD. COUNSEL FOR THE ASSESSEE, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE DECLARED INCOME OF RS.7,66,88 0/- IN HIS RETURN FILED ON 31/03/2010. NOTICE U/S 143(2) OF TH E INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) WAS SERVED UPON THE ASSESSEE. FURTHER, NOTICE U/S 142(1) WAS ISSUED ON 13/01/2011 AND THE COMPLIANCE DATE WAS FIXED FOR 28/01/2011. AGAIN, NOTICE U/S 142(1) WAS ISSUED ON 15/02/2011 FOR 21/02/2011. AGAIN, IDENTICAL NOTICE DATED 20/05/2011 WAS ISSUED FOR 19/07/2011. LIKEWISE, NO TICE DATED 26/08/2011 WAS ISSUED FOR 12/09/2011. THERE WAS NO RESPONSE TO THESE NOTICES BY THE ASSESSEE. THE L D. ASSESSING OFFICER AGAIN ISSUED NOTICE ON 29/09/2011 FOR 05/10/2011 AND NOTICE U/S 271(1)(B) DATED 05/10/201 1 WAS SHRI PRADIPBHAI NATHALAL SHAH ITA NO.6733/MUM/2012 3 ISSUED FOR 14/10/2011. FINALLY, SHOW CAUSE NOTICE D ATED 31/10/2011 WAS ISSUED FOR 04/11/2011. THE ASSESSEE DID NOT RESPONDED TO THE NOTICES/SHOW CAUSE NOTICE, THU S, PENALTY OF RS.50,000/- WAS IMPOSED U/S 271(1)(B) OF THE ACT. SINCE, THE ASSESSEE WAS GETTING TIME BARRED BY 31/1 2/2011, SUMMONED U/S 131 OF THE ACT DATED 20/12/2011 WERE ISSUED FOR 22/12/2011. THE ASSESSEE AGAIN DID NOT C OMPLY WITH. THE ASSESSEE ATTENDED ON 27/12/2011 AND FILED WRITTEN SUBMISSIONS, HOWEVER, THE ASSESSEE DID NOT PRODUCE PROPER DETAILS OF THE CASE. THE LD. ASSESSING OFFICER COMP LETED THE ASSESSMENT U/S 144 OF THE ACT ON THE BASIS OF MATER IAL AVAILABLE ON RECORD. IN VIEW OF THESE FACTS AND SIN CE THE ADDITIONAL EVIDENCE, FILED BEFORE THE LD. COMMISSIO NER OF INCOME TAX (APPEALS), NO REMAND REPORT WAS SOUGHT F ROM THE ASSESSING OFFICER AND WORKING OF PEAK WAS NOT PROVI DED BEFORE THE ASSESSING OFFICER, IN ALL FAIRNESS, WE R EMAND THIS APPEAL TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE AND DECIDE AFRESH IN ACCORDAN CE WITH LAW. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM. FURTHER KEEPING IN VIEW, THE PAST TRACK RECORD OF T HE ASSESSEE IN NOT RESPONDING TO THE NOTICES/SHOW CAUSE NOTICE, THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER WITHIN ONE MONTH FROM THE DATE OF RECEIPT OF THIS O RDER. IF THE ASSESSEE FAILS TO APPEAR WITHIN THE STIPULATED PERI OD, HE MAY FREE TO DISPOSE OFF THE APPEAL ON THE BASIS OF MATE RIAL AVAILABLE ON RECORD. FURTHER, THE ASSESSING OFFICER IS AT SHRI PRADIPBHAI NATHALAL SHAH ITA NO.6733/MUM/2012 4 LIBERTY TO DECIDE THE APPEAL ON A MUTUALLY DECIDED DATE. THUS, THE APPEAL OF THE REVENUE IS ALLOWED FOR STAT ISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 09/11/2015. SD/- SD/- ( ASHWANI TANEJA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ' # MUMBAI; ' DATED : 24/11/2015 F| P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. )*+, / THE APPELLANT 2. -.+, / THE RESPONDENT. 3. / / ' 0! ( )* ) / THE CIT, MUMBAI. 4. / / ' 0! / CIT(A)- , MUMBAI 5. 23 -! , / )*% ) 4 , ' # / DR, ITAT, MUMBAI 6. 5 # / GUARD FILE. / BY ORDER, .2*! -! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ' # / ITAT, MUMBAI.