DR. CHANDRA MOULESHWAR PRASAD SHARMA THROUGH HIS LEGAL HEIR MRS. UMA SINGH, THANE V. ITO HQ CIB, PUNE

ITA 8154/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8745 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 25-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Keywords: Unexplained investment; Non compliance
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C BEFORE I.P. BANSAL, JUDICIAL MEMBER AND SHRI P.M.JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 8154/MUM/2010. ASSESS MENT YEAR :2005-06. DR. CHANDRA MOULESHWAR PRASAD SHARMA, THE INCOME-TAX OFFICER THROUGH HIS LEGAL HEIR MRS. UMA SINGH, VS. HQ, CIB, ERANDAWANE, 1502, POLARIS, HIRANANDANI ESTATE, PUNE. GHODBUNDER ROAD, THANE WEST- 400607 PAN BAFPS8882Q APPELLANT RESPONDENT. APPELLANT BY : NONE. RESPON DENT BY : SHRI V.V. SHASTRI. DATE OF HEARING : 28-08-2012 DATE OF PRONOUNCEMENT : 26-09-2012. O R D E R PER P.M. JAGTAP, A.M. THIS APPEAL IS FILED BY THE ASESSEE AGAINST THE OR DER OF LEARNED CIT(APPEALS)-II, THANE DATED 20-08-2010 PASSED EXPA RTE WHEREBY HE UPHELD THE ASSESSMENT MADE BY THE AO U/S 144 OF THE ACT TO THE BEST OF HIS JUDGMENT AND ALSO CONFIRMED THE ADDITION OF RS.2 LAKHS MADE BY THE AO THEREIN ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT MADE BY THE ASSESSEE IN MUTU AL FUND. 2. IN THIS CASE, THE AO RECEIVED THE INFORMATION IN THE FORM OF AIR ABOUT THE ASSESSEE HAVING MADE INVESTMENT OF RS.2 LAKHS IN MU TUAL FUND DURING THE PREVIOUS 2 ITA NO.8154/MUM/2010 YEAR RELEVANT TO ASSESSMENT YEAR 2005-06. HE, THERE FORE, REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE SAID INVESTMENT AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED FROM TIM E TO TIME IN THIS REGARD, THE AO COMPLETED THE ASSESSMENT TO THE BEST OF HIS JUDGMEN T U/S 144 BY AN ORDER DATED 29- 12-2007 ON A TOTAL INCOME OF RS.2 LAKHS BEING THE U NEXPLAINED INVESTMENT MADE BY THE ASSESSEE IN MUTUAL FUND. 3. AGAINST THE ORDER PASSED BY THE AO U/S 144, AN A PPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS) CHALLENGIN G THE BEST JUDGMENT ASSESSMENT MADE BY THE AO U/S 144 OF THE ACT AS WEL L AS DISPUTING THE ADDITION OF RS.2 LAKHS MADE THEREIN ON MERITS. DURING THE COURS E OF APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(APPEALS), THERE WAS, HOWEVE R, NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED FIXING THE AP PEAL OF THE ASSESSEE FOR HEARING FROM TIME TO TIME. THE LEARNED CIT(APPEALS), THEREF ORE, DISPOSED OF THE APPEAL OF THE ASSESSEE EXPARTE BY HIS IMPUGNED ORDER UPHOLDIN G THE ORDER PASSED BY THE AO U/S 144 AS WELL AS CONFIRMING THE ADDITION OF RS. 2 LAKHS MADE THEREIN ON ACCOUNT OF UNEXPLAINED INVESTMENT IN MUTUAL FUND. AGGRIEVED BY THE SAME, THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING BEFORE US, NEITHER THE AS SESSEE NOR THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS PUT IN APPEARANC E. THE APPLICATION FILED BY THE ASSESSEE SEEKING ADJOURNMENT OF THE SAID HEARING AL SO HAS BEEN WITHDRAWN. AN AFFIDAVIT FILED BY MRS. UMA SINGH, LEGAL HEIR OF TH E ASSESSEE IS PLACED ON RECORD. AS STATED IN THE SAID AFFIDAVIT, THE ASSESSEE DR. C HANDRA MOULESHWAR PRASAD SHARMA, WAS A NON RESIDENT INDIAN SETTLED IN UNITED KINGDOM SINCE 1961 AND WAS NOT ASSESSED TO TAX IN INDIA. HE EXPIRED ON 23 RD NOV., 2008 AND MRS. UMA SINGH, BEING HIS DAUGHTER RESIDING IN MUMBAI HAS TAKEN THE RESPONSIBILITY OF PURSUING HIS PENDING TAX MATTERS INCLUDING THIS APPEAL FILED BEF ORE THE TRIBUNAL. IN OUR OPINION, 3 ITA NO.8154/MUM/2010 THE CONTENTS OF THE AFFIDAVIT FILED BY MRS. UMA SIN GH ARE SUFFICIENT TO EXPLAIN THE NON COMPLIANCE OF THE ASSESSEE TO THE NOTICES ISSUE D BY THE LEARNED CIT(APPEALS) DURING THE PERIOD FROM MARCH, 2009 TO AUGUST, 2010 INASMUCH AS THE ASSESSEE WAS NOT ALIVE DURING THIS PERIOD HAVING ALREADY EXPIRED ON 23 RD NOV., 2008. EVEN PRIOR TO HIS DEATH, HE WAS STAYING IN UNITED KINGDOM AND THAT APPEARS TO BE THE REASON WHY HE COULD NOT RESPOND TO THE NOTICES ISSUED BY THE AO SEEKING INFORMATION REGARDING THE SOURCE OF INVESTMENT MADE IN THE MUTU AL FUND. HAVING REGARD TO ALL THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT ON E MORE OPPORTUNITY SHOULD BE GIVEN IN THIS CASE IN THE INTEREST OF JUSTICE IN OR DER TO EXPLAIN THE INVESTMENT OF RS.2 LAKHS MADE BY THE ASSESSEE IN THE MUTUAL FUND DURIN G THE YEAR UNDER CONSIDERATION AND EVEN THE LEARNED DR HAS NOT RAISED ANY SERIOUS OBJECTION IN THIS REGARD. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER OF THE LEAR NED CIT(APPEALS) AND RESTORE THE MATTER TO THE FILE OF THE AO WITH A DIRECTION TO MA KE THE ASSESSMENT DENOVO AFTER GIVING THE ASSESSEE PROPER AND ADEQUATE OPPORTUNIT Y OF BEING HEARD IN ORDER TO EXPLAIN THE SOURCE OF INVESTMENT OF RS. 2 LAKHS MAD E IN THE MUTUAL FUND. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 26 TH DAY OF SEPT., 2012. SD/- (I.P. BANSAL) JUDICIAL MEMBER SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER DATED : 26 TH SEPT., 2012 4 ITA NO.8154/MUM/2010 COPY TO : 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR CONCERNED, MUMBAI 6. GUARD FILE BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI