DCIT CEN CIR 2(2), MUMBAI V. RASIK VERSHI SAVLA, MUMBAI

ITA 7254/MUM/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9753 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 25-04-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 05-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B PRUSETH
• Section: 142(1); 153A; 131; 68; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE D.T. GARASIA, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.7254/M/2014 ASSESSMENT YEAR: 2004-05 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(2), ROOM NO.1004, 10 TH FLOOR, OLD CGO BUILDING ANNEX, M. K. ROAD, MUMBAI - 400020 VS. SHRI RASIK VERSHI SAVLA, KALYAN BUILDING NO.3, ROOM NO.34, 2 ND FLOOR, KHADILKAR ROAD, MUMBAI 400 004 PAN: AAHPS5633A (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : SHRI B. PRUSETH, D.R. DATE OF HEARING : 03.07.2017 DATE OF PRONOUNCEMENT : 28.07.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 30.09.2014 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2004-05. 2. THE SHORT FACTS OF THE CASE ARE THAT A SEARCH & SEIZURE ACTION UNDER SECTION. 132 OF THE I.T. ACT WAS CARRIED OUT IN THE CASE OF M/S. RELIABLE PAPER (I) PVT. LTD. AND ITS GROUP CONCERNS BETWEEN 23/02/ 10 & 20/04/10, WHEREIN INCRIMINATING DOCUMENTS RELATING TO THE ASSESSEE WE RE FOUND AND ACTION UNDER SECTION 132 WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE AT KALYAN BUILDING NO.3, ROOM NO 34, 2ND FLOOR, KHADILKAR ROAD, MUMBAI 400004. NOTICE U/S 153A DATED 31.01.2011 WAS ISSUED AND DULY SERVED ON THE ASSESSEE, BUT NO RETURN OF INCOME WAS FILED. A NOTICE UNDER SECTION 142(1) WAS ISSUED ON 14.01.13 TO SUBMIT THE RETURN OF INCOME WITHIN 7 DA YS FROM THE RECEIPT OF ITA NO.7254/M/2014 SHRI RASIK VERSHI SAVLA 2 NOTICE WHICH WAS SERVED ON THE ASSESSEE ON 15.02.13 BUT THE ASSESSEE HAD NOT COMPLIED WITH THE SAME. A SUMMONS UNDER SECTION 13 1 DATED 14.02.13 WAS ISSUED FIXING HEARING ON 22.02.13, BUT THERE WAS NO COMPLIANCE. ANOTHER NOTICE WAS ISSUED ON 19.02.13 FIXING THE HEARING ON 27.02. 13 WITH TE SAME RESULT. IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED RETURN O F INCOME FOR A.Y. 2004-05 ON 25.02.13 DECLARINGG TOTAL INCOME OF RS.550,010/-. S IMILARLY IN RESPONSE TO NOTICE UNDER SECTION 143(2) DATED 25.10.13 FIXING H EARING ON 04.03.13, THERE WAS NO COMPLIANCE AND IT WAS MADE CLEAR THAT ORDER UNDER SECTION 144 WILL BE PASSED IN CASE OF NON ATTENDANCE LETTER WAS FILED I N TAPAL FROM ASSESSEE GIVING PART DETAILS. ANOTHER LETTER DATED 4.3.2013 WAS FIL ED IN TAPAL ALONG WITH LETTER OF AUTHORITY IN FAVOUR OF AND THROUGH CA JAMES SHAH , PROPRIETOR OF M/S JAMES SHAH & CO. THE ASSESSING OFFICER (HEREINAFTER REFE RRED TO AS THE AO) NOTED THAT THE ASSESSEE HAD NOT PRODUCED BOOKS OF ACCOUNT S, DETAILS OF EXPENDITURE CLAIMED ALONG WITH THE SUPPORTING DOCUMENTS, COPIES OF BANK STATEMENTS. IN VIEW OF THE ABOVE, THE AO WENT AHEAD AND PASSED THE ORDER EXPARTE UNDER SECTION 144 OF THE I.T. ACT DATED 28/03/13 ASSESSIN G INCOME AT RS.1,77,66,650/-. 3. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS ALLOWED THE APPEAL. 4. DURING THE COURSE OF HEARING, ASSESSEE DID NOT R EMAIN PRESENT. WE HAVE GONE THROUGH THE ORDER OF LD. CIT(A). WE FIND THAT THE LD. CIT(A) HAS DELETED THE ADDITION ON THE GROUND THAT THE AO WAS ASKED TO FURNISH THE DETAILS OF LOANS CONSIDERED FOR APPLICABILITY OF SECTION 68 GIVING OPENING BALANCE, AMOUNT RECEIVED AND REPAID AND CLOSING BALANCE DURI NG THE YEAR. FURTHER, THE AO WAS ASKED TO EXPLAIN HOW THE LOAN RECEIVED FROM JAIN SAVLA OF RS.79,95,000/- HAS BEEN TREATED IN THIS DISALLOWANC E AS JATIN SAVLA IS ASSESSED TO TAX IN THE SAME ASSESSMENT CHARGE. NO REPLY WAS RECEIVED FROM AO. THEREFORE, LD. CIT(A) HAS DELETED THE ADDITION. WE FIND THAT IF THE AO DID NOT ITA NO.7254/M/2014 SHRI RASIK VERSHI SAVLA 3 MAKE ENQUIRY, IT IS THE DUTY OF LD. CIT(A) TO MAKE THE ENQUIRY. FAILING WHICH WE ARE OF THE VIEW THAT THE LD. CIT(A) IS NOT JUSTI FIED IN HIS ACTION. THEREFORE, WE REVERSE THE FINDING OF LD. CIT(A) AND RESTORE TH IS ISSUE BACK TO THE FILE OF THE AO AND THE AO IS DIRECTED TO DECIDE THE MATTER AFRESH AS PER LAW AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, DEPARTMENTAL APPEAL IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28.07.2017. SD/- SD/- (RAJESH KUMAR) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 28.07.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.