ISRAR MONUDDIN KHAN, PALGHAR V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE - 4, THANE

ITA 6756/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0778 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 28-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G P MEHTA
• Keywords: Unexplained cash credit; Capital Gains
• Section: 143(3); 143(1); 68

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH MUMB AI BEFORE SHRI PAWAN SINGH JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 6756/MUM/2017 (ASSESSMENT YEAR 2013-14 ) SHRI ISRAR MONUDDIN KHAN A 1005 RELIABLE PRESTIGE 1, CHANDAN NAKA, ACHOLE ROAD, NALLASOPARA EAST, PALGHAR- 401209. PAN: AIDPK2219A VS. DCIT, CIRCLE 4, 6 TH FLOOR, ASHAR IT PARK, ROAD NO.16-Z, WAGLE INDUSTRIAL ESTATE, THANE-401209. APPELLANT RESPONDE NT APPELLANT BY : SHRI G.P. MEHTA (AR) RESPONDENT BY : SHRI ASHISH POPHARE (DR) DATE OF HEARING : 21.08.2019 DATE OF PRONOUNCEMEN T : 21.08.2019 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(A)-3, THANE DATED 20.09.2017 FOR ASSESSMENT YEAR 2013-14. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: (1) UNEXPLAINED CASH CREDITS U/S 68 THE LEARNED DCIT HAS ERRED IN ADDING RS. 60,86,000/ - TOWARDS UNEXPLAINED CASH CREDITS, HOWEVER DURING THE COURSE OF THE ASSE SSMENT PROCEEDINGS 100% COMPLIANCE WERE MADE IN RESPECT OF ALL QUERIES RAIS ED BY THE LEARNED ASSESSING OFFICER RELATING TO THE DETAILS OF THIS BANK A/C. S O THE APPELLANT REQUEST YOU HONOR TO KINDLY DROP THIS ADDITION AND DUE JUSTICE BE GIVEN TO THE APPELLANT. (2) SHORT TERM CAPITAL GAIN THE LEARNED DCIT HAS ERRED IN ADDING RS. 11,11,490/ - TOWARDS SHORT TERM CAPITAL GAIN, HOWEVER DURING THE COURSE OF THE ASSE SSMENT PROCEEDINGS 100% COMPLIANCE WERE MADE IN RESPECT OF ALL QUERIES RAIS ED BY THE LEARNED ASSESSING ITA NO. 67 56 MUM 2017-SHRI ISRAR MONUDDIN KHAN. 2 OFFICER RELATING TO THE DETAILS OF THIS CAPITAL GAI N BUT THE COST OF IMPROVEMENT OF RS. 11,25,000/-WAS NOT CONSIDERED BY HONORABLE D CIT AT THE TIME OF CALCULATING CAPITAL GAIN. IF AT ALL COST OF IMPROVE MENT IS CONSIDERED FOR CAPITAL GAIN CALCULATIONS, THE CAPITAL GAINS SHALL NOT ARIS E. SO THE APPELLANT REQUEST YOU HONOR TO KINDLY DROP THIS ADDITION AND DUE JUSTICE BE GIVEN TO THE APPELLANT. (3) THE APPELLANT PRAYS THAT THE PENALTY PROCEEDING U/S 271 (1) (C) MAY BE DROPPED AND DUE JUSTICE MAY BE GIVEN TO THE APPELLA NT. (4) THE APPELLANT PRAYS THAT YOUR HONOUR TO GRANT R ELIEF FROM PAYMENT OF INTEREST UNDER SECTION 234A, B, C, D AS APPLICABLE AND OBLIGE. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF CIVIL CONTRACTORS AND DIRECTOR I N TWO COMPANIES NAMELY M/S RELIABLE HOUSING INDIA PVT. LTD. AND M/S RELIABLE HOMEMAKERS & INFRASTRUCTURE PVT. LTD., FILED HIS RE TURN OF INCOME FOR RELEVANT ASSESSMENT YEAR ON 03.11.2014 DECLARING TO TAL INCOME OF RS. 35,80,328/-. THE RETURN OF INCOME WAS PROCESSED UND ER SECTION 143(1) OF THE I.T. ACT. SUBSEQUENTLY, THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ON 04.03.2016. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER MADE ADDITION UNDER SECTION 68 ON ACCOUNT OF CASH C REDIT AND SHORT TERM CAPITAL GAIN (STCG) OF RS. 11,25,000/-. ON APP EAL BEFORE THE LD. CIT(A), BOTH THE ADDITIONS WERE UPHELD. THUS, FURTH ER AGGRIEVED, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THIS T RIBUNAL. 3. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORIZED REPR ESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (D R) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE L D. AR OF THE ASSESSEE ITA NO. 67 56 MUM 2017-SHRI ISRAR MONUDDIN KHAN. 3 SUBMITS THAT THE ASSESSEE COULD NOT APPEAR BEFORE T HE LD. CIT(A) ON 05.09.2017. NO FURTHER NOTICE WAS GIVEN TO HIM FOR FIXING THE HEARING, HOWEVER, WHEN THE ASSESSEE APPROACHED THE OFFICE OF LD. CIT(A) IN LAST WEEK OF SEPTEMBER 2017, HE WAS TOLD THAT THE APPEAL HAS ALREADY BEEN DECIDED EX-PARTE. THE LD. AR OF THE ASSESSEE SUBMI TS THAT THE ASSESSEE HAS SUFFERED EX-PARTE ORDER THOUGH THE ASSESSEE HAS MERITS AND IS LIKELY TO SUCCEED IF THE CASE IS HARD ON MERIT. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT HE UNDERTAKES ON BEHALF OF ASSESSEE T O BE VIGILANT IN FUTURE. THE LD. AR PRAYED THAT THE MATTER MAY BE RESTORED T O THE FILE OF ASSESSING OFFICER FOR ADJUDICATION OF GROUNDS OF AP PEAL ON MERIT. 4. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUBMI TS THAT THE ASSESSEE WAS GIVEN FAIR AND SUFFICIENT OPPORTUNITY OF HEARIN G BY LD. CIT(A). THE ASSESSEE NEITHER APPEARED ON THE DATE FIXED FOR HEA RING ON 05.09.2017 NOR SENT ANY COMMUNICATION FOR SEEKING THE ADJOURNM ENT, ACCORDINGLY THE LD. CIT(A) DECIDE THE APPEAL ON THE BASIS OF MA TERIAL AVAILABLE ON RECORD. 5. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE T HAT HEARING OF APPEAL WAS FIXED ON 05.09.2017. THE HEARING WAS FIXED ON T HE WRITTEN REQUEST OF ASSESSEE VIDE APPLICATION DATED 11.08.2017. ON H EARING WAS FIXED ON 05.09.2017, NONE APPEARED ON BEHALF OF ASSESSEE NOR ANY COMMUNICATION FOR SEEKING ADJOURNMENT WAS MOVED. CO NSEQUENTLY, THE ITA NO. 67 56 MUM 2017-SHRI ISRAR MONUDDIN KHAN. 4 LD. CIT(A) DECIDED THE CASE ON THE BASIS OF MATERIA L AVAILABLE ON RECORD AND CONFIRMED THE ACTION OF THE ASSESSING OFFICER. THE LD CIT(A) DECIDED THE APPEAL EX-PARTE. BEFORE US, THE LD. AR OF THE A SSESSEE VEHEMENTLY SUBMITTED THAT HE UNDERTAKES ON BEHALF OF ASSESSEE TO BE VIGILANT AND TO ATTEND THE PROCEEDING BEFORE LD CIT(A) WITHOUT ANY DEFAULT. WE HAVE NOTED THAT DUE TO NONAPPEARANCE BEFORE LD CIT(A), T HE ASSESSEE HAS ALREADY SUFFERED THE COST OF FILING APPEAL BEFORE T HE TRIBUNAL. CONSIDERING THE SUBMISSION AND THE FACTS THAT LD. C IT(A) DECIDED THE APPEAL IN ABSENCE OF ASSESSEE. THEREFORE, WE DEEM I T APPROPRIATE TO RESTORE THE APPEAL TO THE FILE OF LD. CIT(A) TO DEC IDE ALL THE ISSUES AFRESH. NEEDLESS TO ORDER THAT LD. CIT(A) BEFORE DECIDING T HE ISSUE SHALL GRANT OPPORTUNITY TO THE ASSESSEE AND TO SUBSTANTIATE HIS CLAIM AND TO ALLOW HIM TO FILE DOCUMENTARY EVIDENCES, IF ANY. THE ASSE SSEE IS ALSO DIRECTED TO FULLY CO-OPERATE AND TO FURNISH THE NECESSARY EV IDENCE IN HIS POSSESSION AND NOT TO SEEK THE ADJOURNMENT WITHOUT ANY VALID REASONS. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COU RT ON 21/08/2019 WHILE HEARING THE APPEAL. SD/- SD/- RAJESH KUMAR PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 21 .08.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT ITA NO. 67 56 MUM 2017-SHRI ISRAR MONUDDIN KHAN. 5 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI