DEEPA SOMAJI PALAKAR, MUMBAI V. ITO WD 26(1) (3) , Mumbai

ITA 838/MUM/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0086 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 28-04-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; TDS
• Section: 143(1); 205; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI BASKARAN BR, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 838/Mum/2022 (A.Y: 2014-15) Deepa Somaji Palakar Hill No.1, Sunder Baug, Near Shiv Mandir, Kamani, Kurla West, Mumbai- 400078. Vs. ITO Ward – 26(1)(3) Kautilya Bhavan,BKC, Mumbai -400051. PAN/GIR No. : AQQPP1136J Appellant .. Respondent Appellant by : Shri Chirag Wadhwa.AR Respondent by : Shri R.P.Veena.DR Date of Hearing 25.08.2022 Date of Pronouncement 29.08.2022 आदेश / O R D E R PER PAVAN KUMAR GADALE JM: The assessee has filed the appeal against the order of the CIT(A)-National Faceless Appeal Centre (NFAC), Delhi passed u/s 143(1) and 250 of the Act. The assessee has raised the following grounds of appeal: 1. NATURAL JUSTICE ITA No. 838Mum/2022 Deepa Somaji Palakar, Mumbai. - 2 - 1.1 It is submitted that, in the facts and the circumstances of the case, and in law, the appellate order so framed be held as bad and illegal. WITHOUT PREJUDICE TO THE ABOVE 2.1 The Ld. CIT (A) erred in confirming the action of the A.O. in making the addition of Rs. 10,18,220/-. 2.2 While doing so, the Ld. CIT (A) failed to appreciate that: (i) The impugned addition is not income of the Appellant; (ii) The bank account were fraudulently established for the purpose of obtaining loans and defrauding; iii. To take cognizance of police complaint and the subsequent Criminal Writ Petition bearing Criminal Writ Petition No 6336 of 2021 filed with the Bombay High Court against the fraud done in the name of the appellant. 2.3 Without prejudice to the above, the matter is proceeded in a mechanical manner. 2.4 Without prejudice to the above, in the alternative, hypothetically, even if it is assumed that the income is of the appellant, it is observed that the entire demand is on ITA No. 838Mum/2022 Deepa Somaji Palakar, Mumbai. - 3 - account of non-granting of TDS credit. By virtue of provisions of section 205 of the Income tax Act, 1961, direct recovery from the appellant is not permitted. 2.4 It is pleaded that there is no real income earned, received or accrued in the entire scenario and thus not warranting any tax implications. 2.5 It is submitted that, in the facts and the circumstances of the case, and in law, no such addition was called for. 3 The appellant prays to admit the additional evidence, which due to inadvertent reasons, were not provided before the CIT(A), as the assessee was not able to appear before the CIT(A). 5 The appellant prays to condone the delay of few days, which have arisen in filing this appeal. 6. The Appellant craves leave to add, alter, delete or modify all or any the above ground, before the final date of hearing or at the time of hearing. 2. The brief facts of the case are that the return of income for the A.Y 2014-15 was filed on 28.11.2014 disclosing a total income of Rs.34,14,760/- and the return of income was processed u/s 143(1) of the Act ITA No. 838Mum/2022 Deepa Somaji Palakar, Mumbai. - 4 - determining the total income of Rs. 34,14,760/- vide order dated 15.01.2015 and tax demand including interest raised of Rs.10,18,221/- 3. Aggrieved by the order, the assessee has filed an appeal before the CIT(A). Whereas the CIT(A) considering the grounds of appeal, findings of the assessment has issued notices and there was no compliance. Finally the CIT(A) based on the information has confirmed the action of the assessing officer and dismissed the assessee appeal. Aggrieved by the CIT(A) order, the assessee has filed an appeal before the Hon’ble Tribunal. 4. At the time of hearing, the Ld. AR submitted that the CIT(A) has passed an ex-parte order and notices of hearing were issued but the assessee could not comply due to certain difficulties. Further the assessee has good case on merits and can substantiate with the material information on the disputed issues and prayed for an opportunity of hearing before the lower authorities. Contra, the Ld. DR supported the order of the CIT(A). ITA No. 838Mum/2022 Deepa Somaji Palakar, Mumbai. - 5 - 5. We heard the rival submissions and perused the material on record. Prima-facie the CIT(A) has passed the order considering the fact that there is no appearance in spite of providing adequate opportunity of hearing and the notices were issued and dismissed the appeal ex-parte confirming the action of the assessing officer. We find the Ld.CIT(A) has issued the notices of hearing referred at page2 Para 5 of the order, but there was no response and thus the Ld.CIT(A) came to a conclusion that the assessee is not interested and decided the appeal based on the information available on record. We find that the assessee has raised grounds of appeal challenging the action of the assessing officer determining the income and tax liability payable and there could be various reasons for non appearance which cannot be overruled. We considering the principles of natural justice shall provide one more opportunity of hearing to the assessee to substantiate the case before the CIT(A) along with evidences and information. Accordingly, we set aside the order of the CIT(A) and remit the entire disputed issues to the file of the CIT(A) to adjudicate afresh on merits and the assessee should cooperate in ITA No. 838Mum/2022 Deepa Somaji Palakar, Mumbai. - 6 - submitting the information for early disposal of the appeal and allow the grounds of appeal of the assessee for statistical purposes. 6. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 29.08.2022. Sd/- Sd/- ( BASKARAN BR) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated 29.08.2022 KRK, PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A) 4. Concerned CIT 5. DR, ITAT, Mumbai 6. Guard file. आदेशान ु सार/ BY ORDER, //True Copy// 1. ( Asst. Registrar) ITAT, Mumbai