BABLU JITENDRA HALDAR, MUMBAI V. DCIT RG 23(2), MUMBAI

ITA 674/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4226 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-04-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 02-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E SRIDHAR
• Keywords: Period of limitation
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, MU MBAI BEFORE SH. R.C.SHARMA, ACCOUNTANT MEMBER AND SH. PAWAN SINGH, JUDICIAL MEMBER ITA NO.674/MUM/2015 ASSESSMENT YEAR: 2011-12 MR. BABLU JITENDRA HALDAR MOHAN CHAWL NO. 4,MOTI NAGAR,L.B.S.MARG,MULAND(WEST) MUMBAI-400080 PAN NO.AARH8300H VS. DEUPLY COMMISSIONER OF INCOME TAX, 23( 2),C-10,1 ST FLOOR,ROOM NO.202,BANDRA KURLA COMPLEX, PRATYAKSHAKAR, BHAWAN, BANDRA(E) MUMBAI-51 (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SHEKHAR GUPTA REVENUE BY : E. SRIDHAR (DR) DATE OF HEARING : 07 .04. 2016 DATE OF PRONOUNCEMENT: 07.04.2016 OR D E R PER PAWAN SINGH, JM 1. THE PRESENT APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 12 NOVEMBER 2014,CHALLENGING THE VALIDITY OF CONFIRMATION OF PENALTY ORDER UNDER SECTION 271(1)(C ) OF THE ACT, IN RESPECT OF AY- 2011- 12. 2. THE BRIEF FACTS OF THE CASE ARE THAT, THE ASSESS EE WAS SUBJECTED TO SURVEY ON 21 JAN 2011, UNDER SECTION 133A OF THE AC T, AT HIS BUSINESS PREMISES. DURING SURVEY, THE ASSESSEE MADE A DECLAR ATION OF ADDITIONAL INCOME OF RS. 50 LAKHS. THE ASSESSEE HAS FUTHER SHO WN TOTAL RECEIPT FROM BUILDERS AND DEVELOPERS TO THE EXTENT OF RS.11 ,42,09,889/-. THE ASSESSEE FILED RETURN OF INCOME FOR RELEVANT AY ON 29 TH NOV 2011, DECLARING TOTAL INCOME AT RS. 70,43,030/-. THE RETU RN OF INCOME WAS SELECTED FOR SCRUTINY. THE AO WHILE MAKING THE ASSE SSMENT DISALLOWED 15% OF EXPENSES OUT OF TOTAL EXPENSES CLAIMED CON SISTING OF, INSURANCE, CONVEYANCE EXPENSES, DIESEL, PETROL EXP ENSES , INTEREST ON CAR LOAN AND TELEPHONE EXPENSES IN THE ASSESSMENT O RDER DATED 22 ND MARCH 2013, AND INITIATED PENALTY PROCEEDING UNDER SECTION 271(1)(C ) OF THE ACT. 3. AO ISSUED SHOW CAUSE NOTICE DATED 20 MARCH 2013, TO THE ASSESSEE FOR HIS EXPLANATION. NO REPLY OR EXPLANATION WAS FILED BY ASSESSEE AGAINST THE SHOW CAUSE NOTICE. AO CONCLUDED THAT THE DISCLO SURE MADE BY THE ASSESSEE OF RS. 50 LACS DURING THE ACTION CANNOT BE TREATED AS VOLUNTARY. IF THERE WAS NO SURVEY ACTION THE ASSESSEE WOULD H AVE NOT DISCLOSE THE ADDITIONAL INCOME. NO APPEAL AGAINST THE QUANTUM ASSESSMENT WAS FILED BY THE ASSESSEE BEFORE CIT(A). SINCE THERE WA S NO RESPONSE FROM THE ASSESSEE AGAINST THE SHOW CAUSE NOTICE, AO PASS ED AN ORDER UNDER SECTION 271(1)(C) OF THE ACT. THE AO CALCULATED/ WO RK OUT MINIMUM PENALTY @100% AT RS.15,99,590, AND MAXIMUM PENALTY @300% AT RS.47,98770/- OF THE AMOUNT ON WHICH TAX SOUGHT TO BE EVADED AND THUS LEVIED THE PENALTY OF RS. 17,00,000/-, ON THE BASIS OF ASSESSED INCOME AND CONCEALED INCOME IN ITS ORDER DATED 24 TH OF SEPTEMBER 2013. 4. AGGRIEVED BY THE ORDER OF PENALTY, ASSESSEE FILE D APPEAL BEFORE THE CIT(A). THE APPEAL WAS FILED BEYOND 35 DAYS OF THE PRESCRIBED PERIOD OF LIMITATION. ALONG WITH THE APPEAL ASSESSEE FILED AN APPLICATION FOR CONDONATION OF DELAY, FOR CONDONING THE DELAY OF 35 DAYS. THE DELAY WAS CONDONED BY CIT(A). HOWEVER FOR REPRESENTING APPEAL , NONE APPEARED BEFORE THE CIT(A), DESPITE SERVICE OF NOTICE FOR TH REE CONSECUTIVE DATES AND FINALLY ON 7 OCTOBER 2014. AS NONE APPEARED DUR ING THE APPELLATE PROCEEDINGS TO DISPROVE OR REBUT THE ORDER OF AO. L D CIT(A) AND AFTER DISCUSSING THE FACT OF THE CASE ON THE BASIS OF MAT ERIAL AVAILABLE ON RECORD DISMISSED THE APPEAL OF ASSESSEE VIDE IMPUG NED ORDER AGAINST WHICH THE PRESENT APPEAL IS FILED BEFORE US. 5. WE HAVE HEARD LD AR OF ASSESSEE AND DR FOR REVEN UE AND PERUSE THE MATERIAL AVAILABLE ON RECORD. LD AR OF THE ASSESSEE ARGUED THAT ASSESSEE WAS SICK DURING THE RELEVANT PERIOD AND HA D SUFFERED A HEART ATTACK AND WAS ADMITTED IN HOSPITAL IN THE AHMADABA D. AFTER THAT ASSESSEE WAS NOT KEEPING WELL AND SHIFTED TO HIS NA TIVE PLACE IN WEST BENGAL. IN HIS ABSENCE THE NOTICES WERE RECEIVED BY HIS NEIGHBOR AND DUE TO LACK OF COMMUNICATION HE COULD NOT APPEAR BE FORE CIT(A) WHICH RESULTED IN TO EX-PARTY ORDER. THE ASSESSEE FILED H IS AFFIDAVIT DATED 20 TH MARCH 2015, IN SUPPORT OF HIS CONTENTION. 6. WE HAVE NOTICED THAT THE ASSESSEE DID NOT APPEAR TO REPRESENT HIS CASE EVEN BEFORE AO DURING THE PENALTY PROCEEDING. THE A SSESSEE PREFERRED APPEAL BEFORE CIT APPEAL BUT DESPITE REPEATED NOTIC E, ASSESSEE NOT APPEARED BEFORE APPELLATE AUTHORITY. NOW THE ASSESS EE FILED HIS AFFIDAVIT SHOWING THE CAUSE OF NONAPPEARANCE IN THE APPEAL PR OCEEDINGS. IN THE AFFIDAVIT THE ASSESSEE DISCLOSED THAT HE WAS SICK A ND COULD NOT APPEAR BEFORE CIT(A). THOUGH THE AFFIDAVIT DOES NOT DISCLO SE AS TO WHEN THE ASSESSEE SUFFERED A HEART ATTACK WAS ADMITTED IN HO SPITAL IN AHMADABAD OR WHEN SHIFTED TO HIS NATIVE PLACE IN WEST BENGAL. NO DOCUMENTARY EVIDENCE IN SUPPORT OF AVERMENTS MADE IN AFFIDAVIT IS FILED ON RECORD. HOWEVER KEEPING IN VIEW THE PRINCIPLE OF NATURAL JU STICE, WE DEEM IT APPROPRIATE TO RESTORE THE CASE TO THE FILE OF CIT APPEAL FOR DISPOSAL OF THE CASE ON MERIT. THE CIT APPEAL IS DIRECTED TO PR OVIDE ADEQUATE AND FAIR OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS A LSO DIRECTED TO FULLY COOPERATE DURING THE PROCEEDINGS BEFORE CIT APPEAL AND NOT TO SEEK ADJOURNMENT WITHOUT ANY REASONABLE EXCUSE. 7. WITH THIS OBSERVATION THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 07 APRIL 2016. SD/- SD/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED 07/04/2016 S.K.PS / COPY OF THE ORDER FORWARDED 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/