NEJEEB SHABBIR SYED, MUMBAI V. ASST CIT 24 (3), MUMBAI

ITA 8013/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7766 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 27-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: THARIAN OOMMEN
• Keywords: Bogus purchase
• Section: 271(1)(c); 69C

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTNT MEMBER . 8013 / /2019 ( . . 2009-10 ) ITA NO.8013/MUM/2019 (A.Y.2009-10) . 8014 / /2019 ( . . 2009-10 ) ITA NO.8014/MUM/2019 (A.Y.2009-10) MR. NAJEEB SHABBIR SYED. 643, LAXMI PLAZA, LAXMI INDUSTRIAL ESTATE, ANDHERI (W), MUMBAI-400053. PAN: AAGPS8596P ....... / APPELLANT VS. ACIT 24(3), PIRAMAL CHAMBERS, ROOM NO. 413, 7 TH FLOOR, LALBAUG, MUMBAI-400012. ..... / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SH. THARIAN OOMMEN / DATE OF HEARING : 11/08/2021 / DATE OF PRONOUNCEMENT : 30/08/2021 / ORDER PER VIKAS AWASTHY, J.M: THE APPEAL IN ITA NO. 8013/MUM/2019 BY ASSESSEE IS DIRECTED AGAINST AN EX-PARTE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-36, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 30.11.2016 FOR THE ASSESSMENT YEAR 2 . 8013 & 8014 / /201 9 ( . .2009-10 ) ITA NO.8013 & 8014/MUM/2019 (A.Y.2009-10) (AY)-2009-10. IN ITA NO. 8013/MUM/2019, THE ASSESSEE HAS ASSAILED PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT] AND CONFIRMED BY THE CIT(A) VIDE ORDER DATED 30.08.2019. 2. THE NOTICE OF HEARING OF THE APPEALS WERE SENT TO THE ASSESSEE/APPELLANT THROUGH RPAD FOR HEARINGS FIXED ON 19.05.2021, 05.07.2021 & 11.08.2021. THE SAID NOTICES WERE SENT ON THE ADDRESS MENTIONED IN FORM-36 FILED BY THE ASSESSEE. IN RESPECT OF FIRST TWO NOTICES, NEITHER THE ACKNOWLEDGEMENTS WERE RECEIVED NOR THE POSTAL AUTHORITIES RETURNED THE ENVELOPE UNSERVED WITH REMARKS UNCLAIMED. THE NOTICE ISSUED ON 08.07.2021 FOR 11.08.2021, THE POSTAL AUTHORITIES HAVE RETURNED THE ENVELOP UNDELIVERED. IF THE FIRST TWO NOTICES HAVE BEEN DELIVERED TO THE ASSESSEE/APPELLANT, THE ASSESSEE HAS FAILED TO APPEAR IN PERSON OR THROUGH AUTHORIZED REPRESENTATIVE, IN CASE IT IS PRESUMED THAT THE NOTICES WERE NOT SERVED AND SINCE THE THIRD NOTICE HAS BEEN RECEIVED BACK UNSERVED, THE ASSESSEE SEEMS TO HAVE CHANGED THE ADDRESS. THE ASSESSEE HAS NOT TAKEN PAINS TO INTIMATE CORRECT ADDRESS TO THE REGISTRY BY REVISING FORM NO.36. IN THESE CIRCUMSTANCES, WE ARE CONSTRAINED TO TAKE UP THE APPEALS FOR HEARING WITH THE ASSISTANCE OF LD. DEPARTMENTAL REPRESENTATIVE (DR) AND THE MATERIAL AVAILABLE ON RECORD. 3. A PERUSAL OF THE GROUNDS OF APPEAL IN ITA NO. 8013/MUM/2019 SHOWS THAT THE ASSESSEE HAS ASSAILED THE ORDER OF CIT(A) PRIMARILY ON TWO COUNTS I.E.: (1) ADDITION OF RS. 3,74,335/- UNDER SECTION 69C OF THE ACT CONFIRMED BY CIT(A); AND (2) ADDITION OF RS. 5,04,734/- MADE ON ACCOUNT OF BOGUS PURCHASES. APART FROM ABOVE TWO PRIMARY ISSUES, THERE ARE OTHER PERIPHERAL ISSUES RAISED IN THE APPEAL. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE SAME HAS BEEN 3 . 8013 & 8014 / /201 9 ( . .2009-10 ) ITA NO.8013 & 8014/MUM/2019 (A.Y.2009-10) PASSED IN AN EX-PARTE PROCEEDINGS, IT IS A WELL SETTLED LAW THAT BEFORE PASSING ANY ADVERSE ORDER, A FAIR OPPORTUNITY OF HEARING SHOULD BE GRANTED TO THE PARTIES TO THE LIS. TAKING INTO CONSIDERATION ENTIRETY OF FACTS, WE DEEM IT APPROPRIATE TO RESTORE THIS APPEAL TO THE FILE OF CIT(A) FOR DENOVO ADJUDICATION AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 4. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE CIT(A) AND CO-OPERATE IN FIRST APPELLATE PROCEEDINGS. THE IMPUGNED ORDER IS SET-ASIDE AND THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 8014/MUM/2019 5. THE ASSESSEE HAS ASSAILED LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT IN RESPECT OF ADDITIONS CONFIRMED BY THE CIT(A) VIDE ORDER DATED 30.11.2016 IN AN EX-PARTE PROCEEDINGS. SINCE, WE HAVE SET-ASIDE THE AFORESAID ORDER OF CIT(A) AND HAVE RESTORED THE APPEAL TO THE FILE OF CIT(A) FOR AFRESH ADJUDICATION, THE ORDER CONFIRMING LEVY OF PENALTY AS A CONSEQUENT IS ALSO SET-ASIDE. THIS APPEAL IS ALSO RESTORED TO THE FILE OF CIT(A). THE FIRST APPELLATE AUTHORITIES AFTER DECIDING THE APPEAL OF ASSESSEE IN QUANTUM PROCEEDINGS SHALL DECIDE THE APPEAL OF ASSESSEE AGAINST PENALTY ORDER UNDER SECTION 271(1)(C) OF THE ACT, IN ACCORDANCE WITH LAW. ORDER PRONOUNCED IN THE OPEN COURT ON MONDAY , THE 30 TH DAY OF AUGUST, 2021. SD/ SD/- ( M. BALAGANESH) (VIKAS AWASTHY) /ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, / DATED: 30/08/2021 SK, PS 4 . 8013 & 8014 / /201 9 ( . .2009-10 ) ITA NO.8013 & 8014/MUM/2019 (A.Y.2009-10) COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT , 2. / THE RESPONDENT. 3. ( )/ THE CIT(A)- 4. CIT 5. , . . . , / DR, ITAT, MUMBAI 6. [ / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI