ADITYA ENTERPRISES, MUMBAI V. ITO 23(1)(1), MUMBAI

ITA 907/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8363 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-10-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 08-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Unexplained cash credit; Opportunity of being heard; Deemed dividend
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 907/MUM/2017 ASSESSMENT YEAR: 2012 - 13 ADITYA ENTERPRISES B8 - 9, GURUDEV APARTMENT, CHEMBUR NAKA, CHEMBUR, MUMBAI - 400071 VS. ITO - (23)(1)(1) OFFICE OF THE CIT(A) - 32, EARNEST HOUSE, NARIMAN POINT, MUMBAI - 400021. PAN NO. AASFA5873H APPELLANT RESPONDENT ASSESSEE BY : MR. RAHUL HAKANI , AR REVENUE BY : MR. RAJESH KUMAR YADAV , DR DATE OF HEARING : 03/10 /2017 DATE OF PRONOUNCEMENT : 29/11/2017 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2012 - 13 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISS IONER OF INCOME TAX (APPEALS) - 32 , MUMBAI AND ARISES OUT OF ORDER U/S 143(3) OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE GROUND RAISED BY THE ASSESSEE IN THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL EX - PARTE AND HOLDING THAT THE ASSESSEE WAS NOT INTEREST IN PURSUING THE APPEAL. 3. BRIEFLY STATE, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE AY 2012 - 13 ON 31.03.2014 DECLARING TOTAL INCOME OF RS. NIL. THE ASSESS ING OFFICER (AO) MADE AN ADDITION OF ADITYA ENTERPRISES ITA NO. 907/MUM/2017 2 RS.3,44,34,510/ - AS DEEMED DIVIDEND AND RS.3,68,00,000/ - AS UNEXPLAINED CASH CREDIT U/S 68. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). WE FIND THAT THE LD. CIT(A) HAS DISMIS SED THE APPEAL FILED BY THE ASSESSEE ON THE GROUND THAT THE ASSESSEE DID NOT ATTEND DURING THE APPELLATE PROCEEDINGS. 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE AUTHORIZED REPRESENTATIVE WHO WAS TO APPEAR IN THE ABOVE MATTER DIED ON 05 .11.2016 AND THEREFORE, THE ASSESSEE COULD NOT APPEAR ON 17.11.2016. IT IS SUBMITTED BY HIM THAT THE ASSESSEE IS VERY MUCH INTERESTED IN PURSUING THE APPEAL AND THEREFORE, AN OPPORTUNITY BE GIVEN BY THE LD. CIT(A) TO ARGUE THE CASE ON MERITS. 6. ON THE OT HER HAND, THE LD. DR SUPPORTS THE ORDER PASSED BY THE LD. CIT(A) STATING THAT REASONABLE OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO APPEAR AND EXPLAIN ITS CASE. HOWEVER, THE ASSESSEE FAILED TO DO SO. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RE LEVANT MATERIALS ON RECORD. WE FIND THAT AN ADDITION OF RS.7,12,34,510/ - HAS BEEN MADE BY THE AO TO THE INCOME OF THE ASSESSEE. THE LD. CIT(A) HAS DISMISSED THE APPEAL ON THE GROUND THAT THE ASSESSEE FAILED TO APPEAR DURING THE APPELLATE PROCEEDINGS. WE AR E OF THE CONSIDERED VIEW THAT A PROPER HEARING WOULD GO A LONG WAY IN RESOLVING THE DISPUTE IN THE INSTANT CASE. MORE SO, WHEN THE ADDITION IS IN RESPECT OF DEEMED DIVIDEND AND UNEXPLAINED CASH CREDIT. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIM TO MAKE A FRESH ORDER AFTER GIVING REASONABLE ADITYA ENTERPRISES ITA NO. 907/MUM/2017 3 OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE DIRECT THE ASSESSEE TO APPEAR BEFORE THE LD. CIT(A) AND FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE HIM. 8. IN THE RESULT , THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29/11/2017. SD/ - SD/ - ( D.T. GARASIA ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 29/11/2017 RAHUL SHARMA, SR. P.S. 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