MANGILAL DEVAJI DEVASI, MUMBAI V. DCIT CEN CIR4 32, MUMBAI

ITA 8990/MUM/2010

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4029 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-11-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 23-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N P SINGH
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1); 132; 144

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NOS.8990 & 8992/MUM/2010 ASSESSMENT YEAR:2005-06 MR. MANGILAL DEVAJI DEVASI, C/O- MR. RAJEEV KUMAR, ADVOCATE, C-204, HARIDHAM, MOGRA, AMBEWADI, ANDHERI(EAST), MUMBAI-400069 / VS. DCIT, CENTRAL CIRCLE-32, MUMBAI ( ! /ASSESSEE) ( ' / REVENUE ) PAN. NO . AKVPD9940P ITA NOS.8990, 8992 AND 9012 TO 9017/MUM/2010 MR. MANGILAL DEVAJI DEVASI 2 ITA NOS.9012 TO 9017/MUM/2010 ASSESSMENT YEARS:1999-2000 TO 2004-05 MR. MANGILAL DEVAJI DEVASI, C/O- MR. RAJEEV KUMAR, ADVOCATE, C-204, HARIDHAM, MOGRA, AMBEWADI, ANDHERI(EAST), MUMBAI-400069 / VS. DCIT, CENTRAL CIRCLE-32, MUMBAI ( ! /ASSESSEE) ( ' / REVENUE ) PAN. NO.AKVPD9940P ! / ASSESSEE BY SHRI RAJEEV KUMAR ' / REVENUE BY SHRI N.P.SINGH CIT-DR $ '% & ! ' / DATE OF HEARING : 20/04/2016 & ! ' / DATE OF ORDER: 20/04/2016 / O R D E R PER BENCH THIS BUNCH OF EIGHT APPEALS IS BY THE ASSESSEE AGA INST THE RESPECTIVE IMPUGNED ORDERS DATED 04/10/2010 AND 19/11/2010 OF THE FIRST APPELLATE AUTHORITY, MUMBA I. PRIMARILY ON THE GROUND THAT THE ASSESSMENT WAS FRA MED U/S 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE AC T) AND FURTHER THE ASSESSMENT ORDER WAS PASSED WITHOUT SER VING NOTICE TO THE ASSESSEE, NO OPPORTUNITY OF BEING WAS EVER ITA NOS.8990, 8992 AND 9012 TO 9017/MUM/2010 MR. MANGILAL DEVAJI DEVASI 3 GRANTED TO THE ASSESSEE, THUS, THERE IS VIOLATION O F PRINCIPLE OF NATURAL JUSTICE. 2. DURING HEARING OF THESE APPEALS, THE LD. COUNSE L FOR THE ASSESSEE, SHRI RAJEEV KUMAR, ADVANCED ARGUMENTS , WHICH IS IDENTICAL TO THE GROUND RAISED AND FURTHER THE COMMISSIONER OF INCOME TAX (APPEAL) REFUSED TO ADMI T THE APPEAL ON THE GROUND OF DELAY IGNORING THE FACTUAL MATRIX. IT WAS EXPLAINED BY THE LD. COUNSEL THAT THE ASSESSEE IS A PEON AND MERELY HAS BEEN MADE SCAPEGOAT AND FURTHER THE ASSESSMENT WAS FRAMED U/S 144 OF THE ACT. IT WAS CO NTENDED THAT NO NOTICE WAS EVER SERVED UPON THE ASSESSEE AN D SINCE THE INCOME OF THE ASSESSEE WAS BELOW TAXABLE LIMIT, THEREFORE, NO RETURN WAS FILED BY THE ASSESSEE. ON THE OTHER H AND, THE LD. CIT-DR, SHRI N.P. SINGH, DEFENDED THE ADDITION BY CONTENDING THAT NOTICE WAS DULY SERVED UPON THE ASS ESSEE THROUGH AFFIXTURE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE AN INDIVIDUAL, DURING THE REL EVANT TIME, ITA NOS.8990, 8992 AND 9012 TO 9017/MUM/2010 MR. MANGILAL DEVAJI DEVASI 4 WAS SERVING AS PEON IN EESJAE INC. AHMEDABAD. A SEA RCH AND SEIZURE ACTION U/S 132 WAS CARRIED OUT ON 11/12/200 4, WHEN THE ASSESSEE HAD GONE TO DEPOSIT CASH IN WORLY BRA NCH OF HDFC BANK. AS PER THE ASSESSEE, HE WAS THREATENED B Y THE REVENUE AUTHORITIES AND HIS STATEMENT WAS RECORDED UNDER DURESS AND THREAT. THE ASSESSMENT WAS ASSESSED AT RS.6,86,41,100/-. THE CASE OF THE ASSESSEE IS THAT NEITHER ANY OPPORTUNITY OF BEING HEARD WAS PROVIDED TO THE ASSESSEE NOR ANY NOTICE WAS EFFECTIVELY SERVED UPON THE ASSE SSEE. WE FIND THAT AS PER ASSESSMENT ORDER, NOTICE U/S 142(1 ) OF THE ACT WAS ISSUED TO THE ASSESSEE ON 28/11/2006, ASKIN G THE ASSESSEE TO FURNISH THE RETURN. THE STATEMENT OF TH E ASSESSEE WAS RECORDED ON 11/12/2004 U/S 132(4) OF THE ACT, W HEREIN, THE ASSESSEE PROVIDED THE ADDRESS AS 3, THIRD LANE, KAMATEPURA, MUMBAI. THERE IS MENTION IN THE ASSESS MENT ORDER (PAGE-2) THAT NOTICE U/S 142(1) OF THE ACT CO ULD NOT BE SERVED UPON THE ASSESSEE AT THE MUMBAI ADDRESS AND THE INSPECTOR OF THE DEPARTMENT COULD NOT LOCATE THE AD DRESS. THE REGISTERED NOTICE, SENT TO THE ASSESSEE, ALSO R ETURNED UNSERVED BY THE POSTAL AUTHORITIES. ANOTHER NOTICE WAS SERVED ITA NOS.8990, 8992 AND 9012 TO 9017/MUM/2010 MR. MANGILAL DEVAJI DEVASI 5 BY AFFIXTURE ON 04/12/2006 AT THE ADDRESS C/O-M/S E ESJAE INC., 210, PRAGATI BHAVAN, 2 ND FLOOR, SETHNI POLE, RATAN POLE, AHMEDABAD. AS PER THE DEPARTMENT, THE ASSESSEE DID NOT FILE THE RETURN OF INCOME. HOWEVER, BEFORE US, THE CLAI M OF THE ASSESSEE IS THAT RETURN WAS NOT FILED BY THE ASSESS EE BEING THE INCOME BELOW TAXABLE LIMIT AND FURTHER CLAIMED THAT NO NOTICE WAS EVER SERVED UPON THE ASSESSEE. WITHOUT G OING INTO MUCH DELIBERATION, WE FIND THAT EVEN THE ASSESSMENT WAS FRAMED U/S 144 OF THE ACT AND BEFORE THE COMMISSION ER OF INCOME TAX (APPEAL), THE APPEAL OF THE ASSESSEE WAS DISMISSED ON THE GROUND THAT THE APPEAL IS NOT MAIN TAINABLE, AS PER THE PROVISIONS OF SECTION 249(4) OF THE ACT. IT IS NOTED FROM THE IMPUGNED ORDER (PARA-6), THAT THE ASSESSEE FILED AN AFFIDAVIT THAT INCOME OF THE ASSESSEE WAS ONLY RS.2 4,000/- (A.Y. 1999-2000) AND RS.30,000 DURING THESE YEARS, THUS, THE INCOME OF THE ASSESSEE WAS NOT TAXABLE. CONSIDERING THE TOTALITY OF FACTS AND THE CIRCUMSTANCES NARRATED BE FORE US, FACT REMAINS THAT THE ASSESSMENT WAS FRAMED U/S 144 AND THE FACTUM OF INCOME IS NOT PROVED. EVEN OTHERWISE , AS PER ARTICLE 265 OF THE CONSTITUTION OF INDIA, ONLY DUE TAX HAS TO ITA NOS.8990, 8992 AND 9012 TO 9017/MUM/2010 MR. MANGILAL DEVAJI DEVASI 6 BE COLLECTED. AT THIS STAGE, SO FAR AS, SERVING OF NOTICE IS CONCERNED, WE ARE NOT EXPRESSING ANY OPINION AS THE FACTS HAS NEITHER BEEN PROPERLY EXPLAINED BY THE ASSESSEE NOR IS OOZING OUT FROM THE RECORD, THEREFORE, KEEPING IN V IEW, THE PRINCIPLE OF NATURAL JUSTICE, WE REMAND ALL THESE F ILES INCLUDING THE PENALTY APPEAL TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE CASES OF THE ASSESSEE AFRESH AND AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE, DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD. ASSESSING OFFICER WITHIN O NE MONTH FROM THE RECEIPT OF THIS ORDER, FAILING WHICH THE L D. ASSESSING OFFICER IS COMPETENT ENOUGH TO DECIDE THE APPEALS O N THE BASIS OF MATERIAL AVAILABLE ON RECORD. IF THE ASSE SSEE APPEARS BEFORE THE LD. ASSESSING OFFICER, HE MAY BE PROVIDE D OPPORTUNITY WITH FURTHER LIBERTY TO FURNISH EVIDENC E, IF ANY, IN SUPPORT OF HIS CLAIM, THUS, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE ONLY. FINALLY, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWE D FOR STATISTICAL PURPOSE ONLY. ITA NOS.8990, 8992 AND 9012 TO 9017/MUM/2010 MR. MANGILAL DEVAJI DEVASI 7 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 20/04/2016. SD/- SD/- ( ASHWANI TANEJA ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER $ % MUMBAI; ( DATED :20/04/2016 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. *+,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 $ 1! ( *+ ) / THE CIT, MUMBAI. 4. 0 0 $ 1! / CIT(A)- , MUMBAI 5. 2'3 .! , 0 *+' * 4 , $ % / DR, ITAT, MUMBAI 6. 5 6% / GUARD FILE. / BY ORDER, /2+! .! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI