MOHD. AYUB MUSTAFA HUSSAIN SHAIKH, MUMBAI V. INCOME TAX OFFICER, WARD 4 (1), THANE

ITA 6751/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7224 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2009-2010
• Appeal Filed On: 27-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Principle of natural justice; Additional evidence
• Section: 133(6); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATETRIBUNAL, BENCH A MUMB AI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.6751 /MUM/2017 (ASSESSMENT YEAR- 2009-10) MOHD AYUB MUSTAFA HUSSAIN SHAIKH, C/O M/S VSS & ASSOCIATES, CHARTERED ACCOUNTANTS, 306, DALAMAL CHAMBERS, NEW MARINE LINES, MUMBAI 400020 PAN: BAQPS6351H VS. INCOME TAX OFFICER, WARD (4), ASHAR IT PARK, THANE. (APPELLANT) ( RESPONDENT) ASSESSEE BY : SHRI PRAKASH JHUNJHUNWALA (AR) REVENUE BY : SHRI SAURABH KUMAR RAI (DR) DATE OF HEARING : 23.04.2018 DATE OF PRONOUNCEMENT : 23.04.2018 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME TAX ACT IS DIRECTED AGAINST THE ORDER OF COMMISSIONER (APPEALS)-3, THAN E, DATED 15 TH SEPTEMBER 2017 FOR ASSESSMENT YEAR 2009-10, WHICH I N TURN ARISES FROM THE ASSESSMENT ORDER PASSED UNDER SECTION 144 READ WITH SECTION 147 DATED 20 TH MARCH 2015. THE ASSESSEE HAS RAISED FOLLOWING GROU NDS OF APPEAL; (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN CONFIRMING THE ORDE R PASSED UNDER SECTION 144 READ WITH SECTION 147 OF THE INCOME TAX ACT, WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN CONFIRMING THE ADDI TION OF RS.63,00,000/- BEING UNEXPLAINED INVESTMENT IS WITH OUT CONSIDERING THE ITA NO. 6751/M/2017- MOHD AYUB MUSTAFA HUSSAIN SHAI KH 2 FACTS OF THE CASE THAT THE SAID INVESTMENT HAVE ALR EADY BEEN DISCLOSED IN THE PARTNERSHIP FIRM. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HAS NOT F ILED RETURN OF INCOME FOR ASSESSMENT YEAR 2009-10. THE ASSESSING OFFICER ISSU ED NOTICE UNDER SECTION 148 ON THE BASIS OF INFORMATION RECEIVED FR OM ITO WARD-15(3)(3) DATED 31 ST JANUARY 2013, THAT ASSESSEE HAS PURCHASED IMMOVAB LE PROPERTY VALUED AT RS. 30 LAKHS AND MORE. THEREFORE, NOTICE UNDER SECTION 143(2) WAS ISSUED TO THE ASSESSEE TO ATTEND THE PROCEEDING ON 05 NOVEMBER 2014 AND AGAIN ON 26 TH NOVEMBER 2014, HOWEVER, NEITHER THE ASSESSEE ATTEN DED THE PROCEEDINGS BEFORE ASSESSING OFFICER NOT FURNIS HED ANY WRITTEN SUBMISSION. THE ASSESSING OFFICER ISSUED NOTICE UND ER SECTION 133(6) TO THE SUB- REGISTRAR ON 5 TH FEBRUARY 2014 TO FURNISH THE COPY OF THE SALE DEED. ON THE BASIS OF INFORMATION FURNISHED BY SUB- REGISTRAR, IN RESPONSE TO NOTICE UNDER SECTION 133(6), THE ASSESSING OFFIC ER CAME TO KNOW THAT ASSESSEE PURCHASED TWO PROPERTIES FOR RS. 40 LAKHS AND 23 LAKHS ON 22 ND AUGUST 2008. SINCE, THE ASSESSEE NEITHER APPEARED B EFORE THE ASSESSING OFFICER NOR FURNISHED ANY EXPLANATION THE ASSESSING OFFICER THEREFORE COMPLETED THE ASSESSMENT UNDER SECTION 144 READ WIT H SECTION 147 OF THE ACT. THE ASSESSING OFFICER WHILE FRAMING ASSESSMENT ORDER MADE THE ADDITION OF RS. 63 LAKHS AS UNEXPLAINED INVESTMENT. ON APPEAL BEFORE COMMISSIONER (APPEALS) THE ACTION OF ASSESSING OFFI CER WAS CONFIRMED. THUS, FURTHER AGGRIEVED BY THE ORDER OF COMMISSIONE R (APPEALS) THE ASSESSEE HAS FILED PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD LEARNED AR OF THE ASSESSEE AND LEARNE D DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. AT THE OUTSET OF THE HEARING THE LEARNED AR FOR THE ASSESSEE SUBMITS THA T HE IS NOT PRESSING GROUND NO.1. CONSIDERING THE SUBMISSION OF LEARNED AR OF THE ASSESSEE THE GROUND NO.1 OF THE APPEAL IS DISMISSED AS NOT P RESSED. ITA NO. 6751/M/2017- MOHD AYUB MUSTAFA HUSSAIN SHAI KH 3 4. GROUND NO.2 RELATES TO ADDITION OF RS. 63 LAKHS AS UNEXPLAINED INVESTMENT. THE LEARNED AR OF THE ASSESSEE SUBMITS THAT THE ASSESSEE HAS ALREADY DISCLOSED THE INVESTMENT IN HIS PARTNERSHIP FIRM NAMELY BEST DEVELOPERS. THE LEARNED AR FURTHER SUBMITS THAT THE ASSESSEE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER AS WELL AS BEFO RE FIRST APPELLATE AUTHORITY. THE REASONS FOR NON-APPEARANCE BEFORE TH E ASSESSING OFFICER WERE THAT ASSESSEE HAS SHIFTED HIS RESIDENCE FROM T HANE TO HIS HOME TOWN IN SANT KABIR NAGAR, UTTAR PRADESH. THE BUSINE SS OF THE PARTNERSHIP FIRM WAS CLOSEDOWN BECAUSE OF DISPUTE AMONG THE PAR TNERS OF THE FIRM. THE NOTICE OF APPEAL BEFORE COMMISSIONER (APPEALS) WAS RECEIVED FOR 14 TH AUGUST 2017. THE ASSESSEE APPOINTED SHRI SANJAY JA IN CA TO REPRESENT HIM BEFORE THE APPELLATE AUTHORITY. SHRI SANJAY JAIN CA SOUGHT ADJOURNMENT ON 24 TH AUGUST 2017 AND THE APPEAL WAS ADJOURNED FOR 14 TH SEPTEMBER 2017. ON 14 TH SEPTEMBER 2017 HIS REPRESENTATIVE COULD NOT ATTEND THE HEARING DUE TO HIS ILL HEALTH AND ATTEND ED THE HEARING ON 15 TH SEPTEMBER, ON THE DAY HE WAS INFORMED THAT APPEAL H AS BEEN DISMISSED. BEFORE THE LOWER AUTHORITIES THE ASSESSEE COULD NOT FURNISH CERTAIN RELEVANT DOCUMENT DURING THE ASSESSMENT AS WELL AS BEFORE FIRST APPELLATE ESTATES. THE ASSESSEE HAS FILED THE DOCUMENTARY EVI DENCES IN THE FORM OF ADDITIONAL EVIDENCE. THE LEARNED AR SUBMITS THAT TH E EVIDENCES FURNISHED BY ASSESSEE ARE RELEVANT FOR PROPER ADJUDICATION OF THE ISSUES INVOLVED IN THE PRESENT APPEAL. THE LEARNED AR PRAYED THAT MATT ER MAY BE RESTORED TO THE FILE OF ASSESSING OFFICER FOR PASSING THE ASSES SMENT ORDER AFRESH AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND THE DOCUMENTARY EVIDENCES FURNISHED BY ASSESSEE. 5. ON THE CONTRARY THE LEARNED DR FOR THE REVENUE SUPP ORTED THE ORDER OF AUTHORITIES BELOW. THE LEARNED DR FURTHER SUBMITS T HAT THE ASSESSEE DID NOT APPEAR BEFORE THE LOWER AUTHORITY INTENTIONALLY AND DELIBERATELY. THE ASSESSEE HAS NO CASE ON MERIT AND THE INVESTMENT IN PROPERTIES WHICH HAS ITA NO. 6751/M/2017- MOHD AYUB MUSTAFA HUSSAIN SHAI KH 4 BEEN ADDED AS UNEXPLAINED INVESTMENT HAS NOT BEEN S HOWN BY ASSESSEE IN THE ASSESSMENT OF HIS FORM AS WELL. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THERE IS N O DISPUTE THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE ASSESSING OFFI CER AND AGAIN BEFORE THE FIRST APPELLATE AUTHORITY. THE ASSESSEE HAS NOW FILED AFFIDAVIT FOR EXPLAINING THE REASONS FOR NON-APPEARANCE BEFORE TH E FIRST APPELLATE AUTHORITY. THE ASSESSEE HAS FILED HIS AFFIDAVIT CON TENDING THEREIN THAT HE APPOINTED SHRI SANJAY JAIN CA TO REPRESENT HIM BEFO RE THE FIRST APPELLATE AUTHORITY. SHRI SANJAY JAIN CA COULD NOT APPEAR BEF ORE THE FIRST APPELLATE AUTHORITY DUE TO ILL-HEALTH AND THE ORDER WAS PASSE D ON THE NEXT DAY OF THE HEARING. WE HAVE NOTED THAT ASSESSEE HAS FILED AN A FFIDAVIT/APPLICATION UNDER RULE 29 OF INCOME-TAX APPELLATE TRIBUNAL RULE S, 1969, COPY OF ASSESSMENT ORDER OF BEST DEVELOPER (WHEREIN THE ASS ESSEE IS PARTNER) FOR ASSESSMENT YEAR 2009-10 & 2010-11, ACKNOWLEDGEMENT, BALANCE-SHEET, STOCK REGISTER, LEDGER ACCOUNT AND BANK STATEMENT O F BEST DEVELOPERS. THE LD. AR OF THE ASSESSEE HAD ARGUED THAT THE ASSESSEE HAS SHOWN THE INVESTMENT IN THE ASSESSMENT OF FIRM. CONSIDERING T HE PECULIARITY OF THE FACT THAT ALL THESE DOCUMENTS WERE NOT FILED BEFORE THE LOWER AUTHORITIES, IN OUR VIEW, THE DOCUMENTARY EVIDENCE FURNISHED BY ASSESSEE IS RELEVANT FOR PROPER ADJUDICATION OF ISSUE RAISED BY THE ASSE SSEE. HENCE, WE DEEM APPROPRIATE TO RESTORE THE APPEAL TO THE FILE OF AS SESSING OFFICER TO EXAMINE THE FACT AND THE EVIDENCES FURNISHED BY ASS ESSEE AND PASS THE ORDER IN ACCORDANCE WITH LAW. THE ASSESSING OFFICER SHALL IS DIRECTED TO PROVIDE REASONABLE OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FULLY COOPERATE WITH THE AUTHORITIES CO NCERNED AND NOT TO TAKE THE EXCUSE OF CHANGE OF ADDRESS FOR SERVICE OF NOTI CE. THE ASSESSEE IS FURTHER DIRECTED TO PROVIDE HIS ADDRESS FOR SERVICE OF NOTICE TO THE ITA NO. 6751/M/2017- MOHD AYUB MUSTAFA HUSSAIN SHAI KH 5 ASSESSING OFFICER. WITH THESE DIRECTIONS, THE APPEA L OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD DAY OF APRIL 2018. SD/- SD/- ( G.S. PANNU ) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 23/04/2018 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. C