AMIT V. HARMALKAR, MUMBAI V. ITO WD. 18(3)(1), MUMBAI

ITA 712/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0234 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 01-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE LD
• Assessee Lawyers: PRAKASH JHUNJHUNWALA LD
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 271(1)(c); 271(1)(b); 143(3); 147; 144

Judgement Text

AMIT V.HARMALKAR ASSESSMENT YEARS-2005-06 & 2006-07 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.712/MUM/2017 ( / ASSESSMENT YEAR: 2005-06) A MIT V.HARMALKAR C/O J&B ASSOCIATES (CA) A-324, MORYA HOUSE OSHIWARA LINK ROAD ANDHERI (WEST), MUMBAI 400 053 / VS. INCOME TAX OFFICER, WARD - 18(3)(1) MUMBAI ./PAN : ABDPH-7839-J ( /APPELLANT ) : ( ! / RESPONDENT ) & ./I.T.A. NO.786/MUM/2017 ( / ASSESSMENT YEAR: 2006-07) AMIT V.HARMALKAR C/O J&B ASSOCIATES (CA) A-324, MORYA HOUSE OSHIWARA LINK ROAD ANDHERI (WEST), MUMBAI 400 053 / VS. INCOME TAX OFFICER, WARD - 18(3)(1) MUMBAI ./PAN : ABDPH-7839-J ( /APPELLANT ) : ( ! / RESPONDENT ) & ./I.T.A. NO.711/MUM/2017 ( / ASSESSMENT YEAR: 2005-06) AMIT V.HARMALKAR C/O J&B ASSOCIATES (CA) A-324, MORYA HOUSE OSHIWARA LINK ROAD ANDHERI (WEST), MUMBAI 400 053 / VS. INCOME TAX OFFICER, WARD - 18(3)(1) MUMBAI ./PAN : ABDPH-7839-J ( /APPELLANT ) : ( ! / RESPONDENT ) AMIT V.HARMALKAR ASSESSMENT YEARS-2005-06 & 2006-07 2 & ./I.T.A. NO.1354/MUM/2017 ( / ASSESSMENT YEAR: 2005-06) AMIT V.HARMALKAR C/O J&B ASSOCIATES (CA) A-324, MORYA HOUSE OSHIWARA LINK ROAD ANDHERI (WEST), MUMBAI 400 053 / VS. INCOME TAX OFFICER, WARD - 18(3)(1) MUMBAI ./PAN : ABDPH-7839-J ( /APPELLANT ) : ( ! / RESPONDENT ) ASSESSEE BY : PRAKASH JHUNJHUNWALA, LD. AR REVENUE BY : SATISH CHANDRA RAJORE, LD. DR / DATE OF HEARING : 26/11/2018 / DATE OF PRONOUNCEMENT : 05/12/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEALS BY ASSESSEE FOR DIFFERENT ASSE SSMENT YEARS [AY] AGITATE SEPARATE ORDERS OF FIRST APPELLATE AUT HORITY. SINCE COMMON ISSUES ARE INVOLVED, WE DISPOSE-OFF THE SAME BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE & BREVITY. FIRST, WE TAKE UP ITA NO.712/MUM/2017 FOR AY 2005-06 WHICH CONTEST THE OR DER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) 29, MUMBAI, [CIT(A)], APPEAL NO. CIT(A)-29/RG.18/53/13-14 DATED 26/05/2014 QUA CONFIRMATION OF CERTAIN ADDITION OF RS.54.65 LACS. 2. THE REGISTRY HAS NOTED A LONG DELAY OF 900 DAYS IN FILING OF THIS APPEAL, THE CONDONATION OF WHICH HAS BEEN SOUGHT BY THE ASSESSEE ON THE STRENGTH OF A CONDONATION PETITION AND AFFIDAVI T OF THE ASSESSEE. UPON PERUSAL OF THE SAME, WE FIND THAT THE DELAY HA S BEEN ATTRIBUTED TO AMIT V.HARMALKAR ASSESSMENT YEARS-2005-06 & 2006-07 3 THE FACT THAT THE ASSESSEE WAS FACING SEVERAL DISPU TES WITH HIS FAMILY MEMBERS AS A RESULT OF WHICH HE WAS COMPELLED TO SU RRENDER HIS PARENTS HOUSE. RESULTANTLY, THE BUSINESS PREMISE W AS CLOSED AND THEREFORE, HE DID NOT HAVE ACCESS TO THE RELEVANT D OCUMENTS. IN SUPPORT, THE COPIES OF POLICE FIR, PRESS RELEASE, NOTIICES A ND COURT ORDERS HAVE BEEN PLACED ON RECORD. AN AFFIDAVIT AFFIRMING THE S AME HAS ALSO BEEN FILED. FINDING THE SAME PLAUSIBLE ONE AND KEEPING I N VIEW THE FACT THAT THE ASSESSEE IS AN INDIVIDUAL, TAKING LENIENT VIEW, WE CONDONE THE DELAY AND PROCEED WITH THE APPEAL ON MERITS AS ARGUED BEF ORE US. 3. FACTS LEADING TO THE ADDITION ARE THAT THE ASSES SEE BEING RESIDENT INDIVIDUAL WAS ASSESSED ON BEST JUDGMENT BASIS FOR IMPUGNED AY U/S 144 ON 13/12/2007 BY LD. INCOME TAX OFFICER-18(3)(1 ) AT RS.55.45 LACS AFTER CERTAIN ADDITION OF RS.54.65 LACS AS AGAINST RETURNED INCOME OF RS.0.80 LACS FILED BY THE ASSESSEE ON 31/10/2005. T HE ASSESSMENT WAS FRAMED ON BEST JUDGMENT BASIS SINCE THE ASSESSEE FAILED TO ATTEND ASSESSMENT PROCEEDINGS AND NOTICES WERE SERVED BY A FFIXTURES. RESULTANTLY, THE ASSESSEE WAS SADDLED WITH ADDITION OF RS.54.65 LACS AS REPORTED IN ANNUAL INFORMATION RETURN [AIR], BEING CASH DEPOSITED BY THE ASSESSEE IN HIS BANK ACCOUNTS. 4. BEFORE FIRST APPELLATE AUTHORITY, THE ASSESSEE S UBMITTED THAT THE CASH WAS DEPOSITED BY HIS DECEASED FATHER BY ARRANG ING FUNDS FROM HIS OWN SOURCES TO CLEAR THE CHEQUES OF HIS PRINCIPAL M /S PAREL PRODUCTS. HOWEVER, IN THE ABSENCE OF DOCUMENTARY EVIDENCES, T HE SUBMISSIONS WERE REJECTED AND THE STAND OF LD. AO WAS CONFIRMED . AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. AMIT V.HARMALKAR ASSESSMENT YEARS-2005-06 & 2006-07 4 5. THE LD. AUHTORIZED REPRESENTATIVE [DR], SHRI PRAKASH JHUNJHUNWALA DRAWING OUR ATTENTION TO THE DOCUMENTS PLACED IN TH E PAPER-BOOK PLEADED FOR ADMISSION OF ADDITIONAL EVIDENCES IN SU PPORT OF CASH DEPOSITS. THE LD. AR SUBMITTED THAT THE ASSESS EE IS IN A POSITION TO SUBSTANTIATE THE CASH DEPOSITS AND THEREFORE, KEEPI NG IN VIEW THE PRINCIPLE OF NATURAL JUSTICE, ANOTHER OPPORTUNITY O F BEING HEARD BE GRANTED TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BY LD. D R ON THE GROUND THAT THE ASSESSEE MISERABLY FAILED TO SUBSTANTIATE HIS STAND. 6. UPON CAREFUL CONSIDERATION & KEEPING IN VIEW OVE RALL FACTS AND CIRCUMSTANCES, WE FIND FORCE IN THE ARGUMENTS THAT THE ASSESSEE WAS PREVENTED FROM ADDUCING EVIDENCES BEFORE LOWER AUTH ORITIES AND DESERVES ANOTHER OPPORTUNITY OF BEING HEARD. THEREF ORE, WITHOUT DELVING MUCH DEEPER INTO THE ISSUE, WE DEEM IT FIT TO RESTO RE THE MATTER BACK TO THE FILE OF LD. AO WITH A DIRECTION TO THE ASSESSEE TO SUBSTANTIATE HIS STAND FAILING WHICH LD. AO SHALL BE AT LIBERTY TO A DJUDICATE THE SAME ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE APPE AL STANDS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 786/MUM/2017, AY 2006-07 7. THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME F OR THIS YEAR AND THEREFORE, ASSESSED U/S 143(3) READ WITH SECTION 147 ON 18/02/2014 WHEREIN IT HAS BEEN SADDLED WITH SIMILAR ADDITIONS OF RS.63.03 LACS, BEING CASH DEPOSIT IN BANK ACCOUNT. THE STAND OF LD . AO, UPON CONFIRMATION BY LD. CIT(A), IS UNDER APPEAL BEFORE US. THE PERUSAL OF ORDERS OF LOWER AUTHORITIES REVEALS THAT THE ASSESS EE HAS MISERABLY FAILED TO PROVE THE SOURCE OF CASH DEPOSIT. AMIT V.HARMALKAR ASSESSMENT YEARS-2005-06 & 2006-07 5 8. FACTS AND CIRCUMSTANCES BEING PARI-MATERIA THE SAME, KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE, THE MATTER F OR THIS AY ALSO STANDS REMITTED BACK TO THE FILE OF LD. AO ON SIMILAR LINE S AS FOR AY 2005-06. THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 711/MUM/2017 & 1354/MUM/2017, AY 2005-06 9. THE ASSESSEE HAS BEEN SADDLED WITH PENALTY OF RS .10,000/- FOR AY 2005-06 U/S 271(1)(B) VIDE ORDER DATED 26/06/2008 F OR FAILURE TO ATTEND THE ASSESSMENT PROCEEDINGS. THE SAME UPON CONFIRMAT ION BY FIRST APPELLATE AUTHORITY IS UNDER APPEAL BEFORE US. KEEP ING IN VIEW THE ADVERSE CIRCUMSTANCES BEING FACED BY THE ASSESSEE A S NOTED BY US IN OPENING PARAGRAPHS, WE DELETE THE SAME. THE APPEAL STANDS ALLOWED. 10. SIMILARLY, THE ASSESSEE HAS BEEN SADDLED WITH P ENALTY OF RS.16.39 LACS U/S 271(1)(C) AGAINST QUANTUM ADDITIONS, VIDE ORDER DATED 26/06/2008. THE SAME UPON CONFIRMATION BY FIRST APP ELLATE AUTHORITY, IS UNDER APPEAL BEFORE US. SINCE WE HAVE SET ASIDE THE QUANTUM ADDITIONS AND RESTORED THE MATTER BACK TO THE FILE OF LD. AO FOR RE-ADJUDICATION, THE MATTER OF PENALTY ALSO STANDS REMITTED BACK TO THE FILE OF LD. AO TO RECONSIDER THE SAME IN THE LIGHT OF DECISION TAKEN AGAINST QUANTUM ADDITION. THE LD. AO IS AT LIBERTY TO LEVY THE PENA LTY ON THE BASIS OF QUANTUM ADDITION. THE APPEAL STANDS ALLOWED FOR STA TISTICAL PURPOSES. CONCLUSION 11. ITA NO. 711/MUM/2017 STANDS ALLOWED WHEREAS ALL THE OTHER THREE APPEALS STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH DECEMBER, 2018. SD/- SD/- (MAHAVIR SINGH) (M ANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER AMIT V.HARMALKAR ASSESSMENT YEARS-2005-06 & 2006-07 6 MUMBAI; DATED : 05/12/2018 SR.PS:-JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT 3. ( ( ) / THE CIT(A) 4. ( / CIT CONCERNED 5. )* #+ , + , / DR, ITAT, MUMBAI 6. *,-. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.