MAYA ADVANI, MUMBAI V. ITO WD 19(2)(4), MUMBAI

ITA 6973/MUM/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3950 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-06-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 07-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH L PATHADE
• Keywords: Unexplained cash credit
• Section: 143(3); 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,MUMBA I BENCH B, MUMBAI BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.6973/MUM/2010 ASSESSMENT YEAR: 2007-08 MRS. MAYA ADVANI, 101, GURU ASHISH, NORTH AVENUE, SANTACRUZ (W), MUMBAI-400054. PAN: AAACN3305Q VS. ITO 19(2)(4), ROOM NO. 310, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI-400012. (APPELLANT) (RESPONDENT) ITA NO.3205/MUM/2013 ASSESSMENT YEAR: 2007-08 MRS. MAYA ADVANI, MUMBAI-400054. VS. ITO 19(2)(4), MUMBAI-400012. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SATISH R. MOD Y REVENUE BY : SHRI PRAKASH L. PA THADE (DR) DATE OF HEARING : 09.02.2016 DATE OF PRONOUNCEMENT : 26.02.2016 O R D E R PER PAWAN SINGH, JM: 1. THESE TWO APPEALS WERE FILED BY THE ASSESSEE, ONE I N RESPECT OF ADDITION/QUANTUM AND OTHER AGAINST THE ORDER OF PENALTY U/S 271(1)(C) OF THE ACT. BOTH THE APPEALS WERE HEARD TOGETHER AS THE SAME ARE PERTAINING TO THE SAME ASS ESSMENT YEARS (AYS). 2. IN APPEAL NO. 6973/MUM/2010, THE ASSESSEE HAS RAISE D THE GROUND AGAINST CONFIRMING THE ADDITION OF RS. 27,64,883/- ON ACCOUNT OF UNEXPLAIN ED CASH CREDIT AND FURTHER FILED ADDITIONAL GROUNDS OF APPEAL ON 03.01.2014 AND RAIS ED A LEGAL PLEA THAT THE ORDER IS VOID AB-INITIO AS NOTICE U/S. 143(2) WAS ISSUED BEYOND T HE MANDATORY PERIOD OF 12 MONTH FROM THE END OF MONTH IN WHICH RETURN WAS FILED. 2 ITA NOS. 6973/M/10 & 3205/M/13 MRS. MAYA ADVANI. 3. THE BRIEF FACT OF THE CASE ARE THAT THE ASSESSEE WH O HAS FILED RETURN OF INCOME FOR THE FIRST TIME FOR AY 2007-08 DECLARING TOTAL INCOME OF RS. 2 ,52,930/- ON 30.07.2007. THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY AND THE ASSESSE E WAS ISSUED NOTICE U/S 143(2) ON 09.09.2008 WHICH FOLLOWED A QUESTIONNAIRE ALONG WIT H NOTICE U/S 142(1) OF THE ACT AND AFTER GIVING THE OPPORTUNITY OF HEARING, THE ASSESS MENT ORDER U/S. 143(3) WAS PASSED BY MAKING ADDITION ON UNEXPLAINED CASH CREDIT OF RS. 2 7,64,883/- AND INITIATED PENALTY PROCEEDING U/S 271(1)(C) IN ASSESSMENT ORDER DATED 08.12.2009. 4. AGAINST THE ASSESSMENT ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHEREIN THE ADDITION WAS CONFIRMED IN THE IMPUGNED ORDER DATED 27.07.2010 AGAINST WHICH THE PRESENT APPEAL IS FILED BEFORE US. 5. THE AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE HAS ARGUED THAT THE ADDITIONAL ISSUE RAISED IN THE PRESENT APPEAL GOES TO THE ROOT OF TH E CASE AND THE ADDITION MADE BY AO IN THE ASSESSMENT ORDER IS NOT SUSTAINABLE BEING THE A SSESSMENT IS ITSELF INVALID. THE AR OF THE ASSESSEE FURTHER ARGUED THAT RETURN OF INCOME W AS FILED ON 30.07.2007 AND NOTICE U/S. 143(2) WAS ISSUED ON 09.09.2008. WE HAVE VERIFIED T HIS FACT FROM THE RECORD AVAILABLE WITH DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVEN UE WHICH CONFIRMED THAT THE RETURN WAS FILED ON 30.07.2007. 6. THE AR OF THE ASSESSEE HAS PLACED ON RECORD COPY OF THE NOTICE DATED 09.09.2008 BY VIRTUE OF WHICH THE ASSESSEE WAS REQUIRED TO ATTEND THE OFFICE OF AO/ITO ON 16.09.2008. DR FOR THE REVENUE HAS ARGUED THAT AS PER SECTION 2 92BB OF THE ACT, THE ASSESSEE IS PRECLUDED FROM RAISING SUCH PLEA AS THE ASSESSEE HA S APPEARED IN THE PROCEEDING. THE AR OF THE ASSESSEE HAS ALSO ARGUED THAT SECTION 292BB WAS INSERTED BY FINANCE ACT, 2008, APPLICATION W.E.F. 01.04.2008 AND THUS WAS NOT BE A PPLICABLE TO THE ASSESSMENT PRIOR TO 2008-09. LD. AR OF THE ASSESSEE ALSO RELIED UPON TH E ORDER IN ITA NO. 116/M/2007. 7. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND FIND THAT THE STATUTORY NOTICE WHICH WAS REQUIRED TO BE SERVED WITHIN A PERIOD OF 12 MONTH FROM THE END OF MONTH IN WHICH R ETURN WAS FILED WAS NOT SERVED WITHIN SUCH STATUTORY PERIOD AND THUS THE PROCEEDIN G BEFORE THE AO WERE INVALID UNDER THE LAW, HENCE, THE ASSESSMENT ORDER AND ADDITION M ADE THEREIN, HAS ALSO BECOME INVALID UNDER THE LAW. AR OF THE ASSESSEE FURTHER RELIED UP ON THE JUDGMENT OF CO-ORDINATE BENCH OF ITAT IN ITA NO. 116/MUM/2007 TITLED AS ACIT VS. M/S MEENAKSHI METALICS P. LTD. WHEREIN A SIMILAR AND IDENTICAL ISSUES WAS RAISED B Y THE ASSESSEE AND THE SAME WAS DECIDED AGAINST THE REVENUE, HENCE IN VIEW OF THE A BOVE DISCUSSION AND THE LEGAL POSITION SUMMARIZED BY CO-ORDINATE BENCH IN CASE OF MEENAKSH I METALICS P. LTD., THE ASSESSMENT ORDER IS INVALID, HENCE, THE SAME IS DEC LARED AS SUCH, RESULTANTLY THE ADDITION 3 ITA NOS. 6973/M/10 & 3205/M/13 MRS. MAYA ADVANI. MADE U/S. 68 OF THE ACT IS ALSO NOT SUSTAINABLE, HE NCE, THE APPEAL OF THE ASSESSEE IS ACCEPTED. 8. NOW WE SHALL TAKE UP THE APPEAL NO. 3205/MUM/2013 W HEREIN THE PENALTY LEVIED BY THE AO IN ITS ORDER DATED 08.12.2009 WAS CONFIRMED BY C IT(A) IN ITS ORDER DATED 01.03.2013. 9. AS WE HAVE ALREADY HELD THE ASSESSMENT ORDER DATED 08.12.2009 AS INVALID BY VIRTUE OF WHICH THE PENALTY PROCEEDING WAS INITIATED, HENCE, THE PENALTY LEVIED AND SUBSEQUENTLY CONFIRMED BY THE CIT(A) ARE ALSO NOT SUSTAINABLE AN D THE SAME IS QUASHED/DELETED. IN THE RESULT, BOTH THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH FEBRUARY, 2016. SD/- SD/- ( B.R.BASKARAN ) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 26/02/2016 S.K.PS/JV, SPS / 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/