SUMITRA C. DOTIA, MUMBAI V. ITO 25(2)(3), MUMBAI

ITA 690/MUM/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0175 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 31-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JANARDHANAN
• Assessee Lawyers: ANKIT CHAUHAN
• Keywords: Income from undisclosed sources; Opportunity of being heard
• Section: 69C; 143(3); 147; 148; 2

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.690/MUM/2017 : ASST.YEAR 2009-2010 SMT.SUMITRA C.DOTIA FLAT NO.A/202, ALAKNANDA APARTMENT T.P.S.III, NEAR VEER SAVARKAR GARDEN BORIVLI (WEST), MUMBAI 400 092. PAN : AAAPD7888B. / VS. THE INCOME TAX OFFICER WARD 32(3)(4) MUMBAI. (EARLIER JURISDICTION ITO, WARD 25(2)(3) MUMBAI. ( / APPELLANT) ( / RESPONDENT) /APPELLANT BY : SHRI ANKIT CHAUHAN /RESPONDENT BY : SHRI V.JANARDHANAN / DATE OF HEARING : 04.07.2017 / DATE OF PRONOUNCEMENT : 01.09.2017 / O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A) DATED 11.11.2016 PERTAINING TO ASSESSMENT YEAR 2009-2010, WHEREIN LEARNED CIT(A) HAS DISMISSED THE APPEAL. 2. THE GROUNDS OF APPEAL READ AS UNDER:- THE GROUNDS OF APPEAL SET OUT BELOW ARE WITHOUT PREJUDICE TO EACH OTHER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [THE LD. CIT(A)] ERRED IN HOLDING THAT THE APPELLANT IS NOT INTERESTED IN PURSUING THE APPEAL WITHOUT APPRECIATING THAT THE APPELLANT HAD NOT RECEIVED ANY NOTICE OF HEARING AND CONSEQUENTLY ERRED IN NOT GRANTING SUFFICIENT OPPORTUNITY OF BEING HEARD WHICH IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ITA NO.690/MUM/2017. SMT. SUMITRA C DOTIA. 2 PROVISIONS OF THE INCOME TAX ACT, 1961 AND THE RULES MADE THEREUNDER, 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER'S ACTION OF INITIATION OF PROCEEDINGS U/S. 147 OF THE INCOME TAX ACT, 1961 BY ISSUING OF NOTICE U/S. 148 AND CONSEQUENT COMPLETION OF RE-ASSESSMENT VIDE ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147 DATED 28.01.2014 ARE BAD IN LAW, NULL AND VOID AB INITIO. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.13,54,249/- MADE BY THE LEARNED ASSESSING OFFICER [THE LD, AO.] AS ' INCOME FROM UNDISCLOSED SOURCES' AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PROVISIONS OF THE INCOME TAX ACT, 1961 AND THE RULES MADE THEREUNDER. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 67,712/- BEING 5% OF RS. 13,54,249/- MADE BY THE LD. AO. ON ACCOUNT OF UNEXPLAINED EXPENSES U/S. 69C OF THE INCOME TAX ACT, 1961 AND THE REASONS ASSIGNED FOR DOING SO IS WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PROVISIONS OF THE INCOME TAX ACT, 1961 AND THE RULES MADE THEREUNDER. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE AUTHORITIES BELOW HAVE FAILED TO APPRECIATE: A) THAT THE APPELLANT HAD ALREADY SUBMITTED ALL THE DETAILS INCLUDING, COPIES OF CONTRACT NOTES, LEDGER ACCOUNTS OF THE BROKERS, THE BANK STATEMENTS IN RESPECT OF THE SHARE TRANSACTIONS WITH THE SAID BROKERS. ITA NO.690/MUM/2017. SMT. SUMITRA C DOTIA. 3 B) THAT THE GAIN ARISING ON ACCOUNT OF SALE AND PURCHASE TRANSACTIONS OF THE SAID SHARES HAVE ALREADY BEEN OFFERED TO TAX UNDER THE HEAD 'CAPITAL GAIN' AS SHORT TERM CAPITAL GAIN ON SALE OF SHARES. C) THAT THE ACTUAL SALES CONSIDERATION RECEIVED FROM SALE OF SHARES WAS ONLY RS, 6,77,690/- AND NOT RS. 13,54,249/- D) THAT NO OPPORTUNITY FOR CROSS EXAMINATION OF STATEMENT GIVEN BY SHRI MUKESH CHOKSEY BEFORE THE INVESTIGATION WING OF INVESTIGATION DEPARTMENT WAS PROVIDED TO THE APPELLANT. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, MODIFY AND/OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL AS MAY BE ADVISED. 3. IN THIS CASE THE ASSESSING OFFICER HAS MADE AN ADDITION OF RS.13,54,249 AND RS.67,712 BEING INCOME FROM UNDISCLOSED SOURCES. 4. UPON ASSESSEES APPEAL, LEARNED CIT(A) NOTED THAT DESPITE NOTICE NONE HAS APPEARED. HE PROCEEDED TO CONFIRM THE ASSESSING OFFICERS ACTION. 5. AGAINST THE ORDER ASSESSEE IS IN APPEAL BEFORE THE ITAT. 6. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT NON-APPEARANCE BEFORE THE LEARNED CIT(A) WAS NOT DELIBERATE. HE SUBMITTED THAT THE NOTICE FOR APPEARANCE WAS NOT RECEIVED. HE SUBMITTED THAT AN OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO CANVAS THE APPEAL BEFORE THE LEARNED CIT(A). ITA NO.690/MUM/2017. SMT. SUMITRA C DOTIA. 4 7. UPON CAREFUL CONSIDERATION, IN THE INTEREST OF JUSTICE, I REMIT THE ISSUE RAISED IN THE APPEAL TO THE FILE OF THE LEARNED CIT(A). LEARNED CIT(A) IS DIRECTED TO CONSIDER THE ISSUE AFRESH AND PASS AN ORDER ON THE MERITS OF THE CASE AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 8. LEARNED COUNSEL OF THE ASSESSEE HAS ALSO GIVEN UNDERTAKING THAT HE SHALL APPEAR BEFORE THE LEARNED CIT(A) SUO MOTTO WITHIN TWO MONTHS OF THIS ORDER TO CANVAS THE APPEAL. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 01 ST DAY OF SEPTEMBER, 2017. SD/- ( SHAMIM YAHYA ) ACCOUNTANT MEMBER MUMBAI; DATED : 01 ST SEPTEMBER, 2017. DEVDAS* / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A), MUMBAI 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE.