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

ITA 6753/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6578 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 28-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 271(1)(c); 143(2); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO. 6753 / MUM/ 2017 ( / ASSESSMENT YEARS: 2009 - 10 ) MOHD. AYUB MUSTAFA HUSSAIN SHAIKH M/S. VSS & A SSOCIATES CHARTERED ACCOUNTANTS, 306, DALAMAL CHAMBERS, NEW MARINE LINES, MUMBAI - 400020. / VS. ITO, WARD 4(1) ASHAR IT PARK, THANE. ./ ./ PAN/GIR NO. : BAQPS 6351 H ( / APPELLANT ) .. ( / RESPONDENT ) / DAT E OF HEARING: 28 .01.2019 /DATE OF PRONOUNCEMENT: 20. 02 .2019 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 15 .0 9 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 3, THANE [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2009 - 10 WHERE IN THE PENALTY LEVIED BY THE AO HAS BEEN ORDERED TO BE CONFIRMED. 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS,20,33,375/ - U/S 271(1)(C) OF TH E I.T. ACT, 1961 WITHOUT CONSIDERING THE FACTS OF THE CASE. 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR MODIFY ANY OR ALL GROUNDS TILL THE DISPOSAL OF THE APPEAL. ' 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF IN COME FOR THE A.Y. 2009 - 10. THE CASE WAS SELECTED FOR SCRUTINY, THEREFORE, NOTICES U/S 148 OF THE I.T. ACT, 1961 WAS ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE PURCHASE D THE IMMOVABLE PROPERTY VALUED RS.30,00,000/ - AND MORE . NOTICES U/S 143(2) AND 14 2(1) OF THE ACT WERE ASSESSEE BY: SHRI SANJAY JAIN REVENUE BY : SHRI DURGA DUTT (SR.AR) ITA NO. 6753 /M/2017 A. Y. 2 009 - 10 2 ISSUED AND SERVED UPON THE ASSESSEE. THE AO ALSO ISSUED THE NOTICE TO SUB - REGISTRAR ON 05.02.2014 AND IT WAS FO UND THAT THE APPELLANT PURCHASED TWO PROPERTY AMOUNTING TO RS.40,00,000/ - AND 23,00,000/ - ON 22.08.2008. THE ASSESSEE FAILED TO APPEAR BEFORE THE AO, THEREFORE, THE AMOUNT IN SUM OF RS. 63,00,000/ - WAS ADDED TO THE INCOME OF THE ASSESSEE. THEREAFTER, THE PENALTY PROCEEDING WAS INITIATED AND THE AO LEVIED THE PENALTY IN SUM OF RS.20,33,740/ - . FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENT AND ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. AT THE VERY OUTSET, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE QUANTUM HAS BEEN SET ASIDE BY THE HON BLE ITAT IN ITA NO. 6751/M/2017 FOR THE A.Y. 2009 - 10 DATED 23.04.2018 , THEREFORE, IN THE SAID CIRCUMSTANCES, THE PENALTY IS NOT LIABLE TO BE SUSTAINABL E IN THE EYES OF LAW . HOWEVER, ON THE OTHER HAND, THIS FACT HAS NOT BEEN DISPUTED BY LD. REPRESENTATIVE OF THE DEPARTMENT THAT THE QUANTUM HAS BEEN DELETED BY THE HONBLE ITAT IN ITA NO. 6751/M/2017 FOR THE A.Y. 2009 - 10 DATED 23.04.2018 , THE COPY OF ORDER DATED 23.04.2018 PASSED BY HONBLE ITAT IN ITA. NO. 6751/M/2017 FOR THE A.Y. 2009 - 10 DATED 23.04.2018 IS ON THE FILE IN WHICH WE FIND THAT THE HONBLE ITAT HAS DELETED THE QUANTUM AND RESTORED THE MATTER OF CONTROVERSY BEFORE THE AO. THE RELEVANT FINDING H AS BEEN GIVEN IN PARA NO. 6 WHICH IS HEREBY REPRODUCED AS UNDER.: - WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THERE IS NO DISPUTE THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE ASSESSING O FFICER AND AGAIN BEFORE THE FIRST APPELLATE AUTHORITY. THE ASSESSEE HAS NOW FILED AFFIDAVIT FOR EXPLAINING THE REASONS FOR NON - APPEARANCE BEFORE THE FIRST APPELLATE AUTHORITY. THE ASSESSEE HAS FILED HIS AFFIDAVIT CONTENDING THEREIN THAT HE APPOINTED SHRI SANJAY JAIN CA TO REPRESENT HIM BEFORE THE FIRST APPELLATE AUTHORITY. SHRI SANJAY JAIN CA COULD NOT APPEAR BEFORE THE FIRST APPELLATE ITA NO. 6753 /M/2017 A. Y. 2 009 - 10 3 AUTHORITY DUE TO ILL - HEALTH AND THE ORDER WAS PASSED ON THE NEXT DAY OF THE HEARING. WE HAVE NOTED THAT ASSESSEE HAS FIL ED AN AFFIDAVIT/APPLICATION UNDER RULE 29 OF INCOME - TAX APPELLATE TRIBUNAL RULES, 1969, COPY OF ASSESSMENT ORDER OF BEST DEVELOPER (WHEREIN THE ASSESSEE IS PARTNER) FOR ASSESSMENT YEAR 2009 - 10 & 2010 - 11, ACKNOWLEDGEMENT,BALANCE - SHEET, STOCK REGISTER, LEDGE R ACCOUNT AND BANK STATEMENT OF BEST DEVELOPERS. THE LD. AR OF THE ASSESSEE HAD ARGUED THAT THE ASSESSEE HAS SHOWN THE INVESTMENT IN THE ASSESSMENT OF FIRM. CONSIDERING THE PECULIARITY OF THE FACT THAT ALL THESE DOCUMENTS WERE NOT FILED BEFORE THE LOWER AU THORITIES, IN OUR VIEW, THE DOCUMENTARY EVIDENCE FURNISHED BY ASSESSEE IS RELEVANT FOR PROPER ADJUDICATION OF ISSUE RAISED BY THE ASSESSEE. HENCE, WE DEEM APPROPRIATE TO RESTORE THE APPEAL TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE FACT AND THE EVI DENCES FURNISHED BY ASSESSEE 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 CONCERNED AND NOT TO T AKE THE EXCUSE OF CHANGE OF ADDRESS FOR SERVICE OF NOTICE. THE ASSESSEE IS FURTHER DIRECTED TO PROVIDE HIS ADDRESS FOR SERVICE OF NOTICE TO THE ASSESSING OFFICER. WITH THESE DIRECTIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOS E 5. SI NCE THE QUANTUM HAS BEEN DELETED BY HONBLE ITAT IN ITA NO. 6751/M/2017 FOR THE A.Y. 2009 - 10 DATED 23.04.2018 IN THE ASSESSEES OWN CASE, THEREFORE, IN THE SAID CIRCUMSTANCES, THE PENALTY HAS NO LEG TO STAND. ACCORDINGLY, WE DELETED THE PENALTY. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20. 0 2 .2019. SD/ - SD/ - ( SHAMIM YAHYA) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 20. 02 .2019 . VIJAY / COPY OF THE OR DER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, ITA NO. 6753 /M/2017 A. Y. 2 009 - 10 4 //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI