SHRIKANT AGARWAL , MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX - CENTRAL CIRCLE 6(3), MUMBAI

ITA 966/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4547 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2011-2012
• Appeal Filed On: 19-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B B RAJENDRA PRASAD
• Keywords: Opportunity of being heard
• Section: 69C; 143(3); 153A; 132

Judgement Text

1 IN THE INCOME-TAX APPELLATE TRIBUNAL G BENCH MUMB AI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO. 966/MUM/2018 (ASSESSMENT YEAR 2011-12 ) ITA NO. 967/MUM/2018 (ASSESSMENT YEAR 2012-13 ) ITA NO. 968/MUM/2018 (ASSESSMENT YEAR 2013-14 ) ITA NO. 969/MUM/2018 (ASSESSMENT YEAR 2014-15 ) SHRI SHRIKANT AGARWAL D-702, LAKSCHANDI APARTMENT, GOKULDHAM, GOREGAON (EAST), MUMBAI-400063 . PAN: AABPA0591P VS. DCIT-6(3) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. APPELLANT RESPONDE NT APPELLANT BY : SHRI RAKESH JOSHI (AR) RESPONDENT BY : SHRI B.B. RAJENDRA PRASAD (CIT-DR) DATE OF HEARING : 14.03.2019 DATE OF PRONOUNCEMEN T : 20.03.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THESE FOUR APPEALS BY ASSESSEE UNDER SECTION 253 OF INCOME-TAX ACT (ACT) ARE DIRECTED AGAINST THE ORDER OF LD. COMMI SSIONER OF INCOME-TAX (APPEALS)-54, HEREINAFTER REFERRED AS LD. CIT (A), MUMBAI, ALL DATED 27.12.2017 FOR ASSESSMENT YEAR 2011-12 TO 2014-15. THE ASSESSEE HAS RAISED THE COMMON GROUNDS IN ALL APPEALS FOR ALL TH E ASSESSMENT YEARS EXCEPT VARIATION OF FIGURES OF AMOUNT. FOR APPRECIA TION OF FACTS WE ARE REFERRING THE FACTS AND GROUNDS OF APPEAL IN ITA NO . 966/MUM/2018 FOR AY 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: ITA NO. 966 TO 969 MUM 2018-SHRI SHRIKANT AGARWAL 2 THE FOLLOWING GROUNDS OF APPEAL ARE WITHOUT PREJUDI CE TO EACH OTHER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT(A) HAS ERRED IN PASSING EX-PARTE ORDER WITHOUT GRANTING SUFFICIENT OPPORTUNITY OF BEING HEARD. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LE ARNED ASSESSING OFFICER IN MAKING AN ADDITION OF RS. 3,00,00,000/- U/S 69C OF THE INCOME TAX ACT, 1961 AS ALLEGED UNACCOUNTED INVESTM ENT, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE AS SE ARCH ACTION 132 WAS CONDUCTED ON 04/04/2014 ON M/S AVIGHNA GROUP COVERI NG ITS HEAD OFFICE, SITE OFFICER AND RESIDENCE AND OFFICE PREMI SES OF ITS KEY PERSONS. THE PERSON AND THE INDIVIDUAL WHO HAD PAID ON MONE Y FOR BOOKING FLAT TO M/S NISH DEVELOPER PVT LTD WERE ALSO SEARCH. DU RING THE SEARCH ONE OF THE KEY EMPLOYEES PRAVEEN MISHRA OF M/S NISH DEV ELOPER PVT LTD WAS COVERED. FROM THE RESIDENCE OF PRAVEEN MISHRA, A PEN DRIVE AND SOME ROUGH SHEET WERE FOUND AND SEIZED. THE ASSES SEE IS ONE OF THE PURCHASERS OF A FLAT IN ONE AVIGHNA PARK. THE DA TA FROM THE PEN DRIVE CONTAINED THE DETAILS OF CASH PAID BY THE ASSESSEE. NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSEE ON 04.02.2011. IN R ESPONSE TO THE NOTICE UNDER SECTION 153A, THE ASSESSEE FILED HIS RETURN O F INCOME ON 153A DECLARING TOTAL INCOME OF RS.74,95,620/-. THE ASSES SEE FILED ORIGINAL RETURN OF INCOME ON 27.09.2011 DECLARING INCOME OF RS.74,95,620/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) READ WITH SECTION 153A ON 29/12/2016. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER ITA NO. 966 TO 969 MUM 2018-SHRI SHRIKANT AGARWAL 3 MADE ADDITION OF RS. 3.00 CRORE UNDER SECTION 69C O N ACCOUNT OF CASH PAID TO M/S NISH DEVELOPER PVT LTD. ON APPEAL BEFOR E LD CIT(A) THE ACTION OF THE ASSESSING OFFICER WAS UPHELD. THE LD CIT(A) UPHELD THAT ACTION OF THE ASSESSING OFFICER IN EX-PARTY ORDER D ATED 27.01.2017. THE LD CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR OTH ER YEARS I.E FOR AY 2012-13 TO 2014-15 WITH SIMILAR ORDER ON 27.01.2017 . THUS, FURTHER AGGRIEVED BY THE ORDER OF THE LD CIT(A) THE ASSESSE E HAS FILED PRESENT APPEAL BEFORE THIS TRIBUNAL 3. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORIZED REPR ESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (D R) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. GROUN D NO.1 RELATES TO PASSING THE EX-PARTY ORDER WITHOUT GIVING THE OPPOR TUNITY TO THE ASSESSEE. THE LD AR FOR THE ASSESSEE SUBMITS THAT BEFORE LD C IT(A) THE HEARING OF THE APPEAL WAS FIXED ON 27.11.2017, THE AR FOR THE ASSESSEE MR. PRADEEP CHOUDHARY CA SENT ADJOURNMENT APPLICATION AS HE WAS NOT WELL AND THE APPEAL WAS ACCORDINGLY RE-FIXED FOR HEARING ON 18.1 2.2017. ON 18.12.2017 THE AR FOR THE ASSESSEE COULD NOT ATTEND THE HEARING AS HE WAS NOT WELL SINCE 27.11.2017. THE LD. AR FOR THE A SSESSEE FURTHER SUBMITS THAT MR. PRADEEP KUMAR CHOUDHARY WAS UNDERG OING VARIOUS MEDICAL TESTS ON 18.12.2017 AND WAS DIAGNOSED WITH CANCER. MR. PRADEEP KUMAR CHOUDHARY CA WAS HOSPITALIZED ON 18.1 2.2017 AND WAS DISCHARGED FROM HOSPITAL ONLY ON 24/12/2017 AND WAS ADVISED COMPLETE ITA NO. 966 TO 969 MUM 2018-SHRI SHRIKANT AGARWAL 4 REST. THE LD. AR FOR THE ASSESSEE FILED COPY OF MED ICAL PRESCRIPTION AND REPORT OF MEDICAL TEST DATED 18.12.2017 AND THE DIS CHARGE SLIP OF P.D HINDUJA NATIONAL & MEDICAL RESEARCH CENTRE DATED 24 .12.2017 OF PRADEEP KUMAR CHOUDHARY. THE LD. AR FURTHER SUBMITS THAT THERE WAS SUFFICIENT CAUSE FOR NOT ATTENDING THE HEARING ON 1 8.12.2017 AS THE ASSESSEE HAS DULY APPOINTED HIS REPRESENTATIVE WHO COULD NOT DATE OF HEARING THE DATE DUE TO BONAFIDE REASONS. THE ASSES SEE HAS GOOD CASE ON MERIT AND IS LIKELY TO SUCCEED IN CASE HIS APPEAL I S HEARD AND DECIDES ON MERIT. 4. ON THE OTHER HAND THE LD. DR FOR THE REVENUE SUBMIT S THAT THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY OF HEARING. THE AS SESSEE WAS GIVEN THREE EFFECTIVE HEARING, HOWEVER THE ASSESSEE F AILED TO SUBSTANTIATE HIS CONTENTIONS RAISED IN THE APPEAL BEFORE LD CIT(A). THE LD CIT(A) DECIDED THE APPEAL ON THE BASIS OF MATERIAL AVAILAB LE ON RECORD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISPUTE THAT THE ASSESSEE FILED APPEAL BEFORE LD CIT(A) ON 27.01.201 7. THE APPEAL WAS FIXED FOR HEARING FOR THE FIRST TIME ON 02.11.2017. ON 02.11.2017 THE ASSESSEE SOUGHT THE ADJOURNMENT ON THE GROUND THAT HIS REPRESENTATIVE WAS OUT OF STATE AND THE APPEAL WAS FIXED/ ADJOURN FOR 27.11.2017. ON 27.11.2017 AGAIN THE ADJOURNMENT WAS SOUGHT THAT TH E AUTHORIZED REPRESENTATIVE OF THE ASSESSEE IS NOT WELL AND ADVI SED REST BY DOCTORS. ITA NO. 966 TO 969 MUM 2018-SHRI SHRIKANT AGARWAL 5 THE APPEAL WAS ADJOURNED FOR 18.12.2017. NONE APPE ARED ON 18.12.2017, THEREFORE, THE LD CIT(A) DECIDED TO PAS SED THE ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. PERUSAL OF THE IMPUGNED ORDER SHOWS THAT LD CIT(A) RECORDED THE PRESENCE OF SH. PRADEEP KUMAR CHOUDHARY CA ON BEHALF OF THE ASSESSEE. THERE IS N OT DISPUTE ABOUT THE ADJOURNMENT OF APPEAL BEFORE LD. CIT(A) ON 27.11.20 17. THE LD CIT(A) ADJOURN FOR 18.12.2017, ON 18.12.207 NONE APPEARED BEFORE THE LD CIT(A) NOR ANY APPLICATION FOR SEEKING FURTHER DATE WAS FILED. THEREFORE, THE LD. CIT (A) PROCEEDED TO DECIDE THE APPEAL ON T HE BASIS OF MATERIAL AVAILABLE ON RECORD. THE LD. AR FOR THE ASSESSEE VEHEMENTLY ARGUED THAT SH. PRADEEP KUMAR CHOUDHARY CA/ AUTHORIZED REPRESEN TATIVES WAS HOSPITALIZED ON 18/12/2017 AND WAS DISCHARGED ON 24 .12.2017. IN SUPPORT OF HIS SUBMISSIONS THE LD. AR HAS FURNISHED THE DOCUMENTARY EVIDENCES IN THE FORM OF MEDICAL PRESCRIPTION AND D ISCHARGED SLIP OF P.D HINDUJA NATIONAL & MEDICAL RESEARCH CENTRE DATE D 24.12.2017. CONSIDERING THE FACTS THAT THE AR FOR THE ASSESSEE COULD NOT APPEARED DUE TO HIS ILLNESS AS HE WAS UNDER MEDICAL TREATMENT AN D WAS DISCHARGED ONLY ON 24.12.2017. THE APPEAL OF THE ASSESSEE WAS DECID ED BY LD CIT(A) IN EX-PARTY ORDER DATED 27.12.2017. IN OUR VIEW, CONS IDERING THE PECULIARITY OF FACTS AND CIRCUMSTANCE OF THE CASE, WHEN THE ASS ESSEE BEEN ABLE TO SHOW THE SUFFICIENT CAUSE FOR NON-APPEARANCE BEFORE LD CIT(A), AND THE APPEAL OF THE ASSESSEE WAS DECIDED WITHOUT AFFORDIN G SUFFICIENT ITA NO. 966 TO 969 MUM 2018-SHRI SHRIKANT AGARWAL 6 OPPORTUNITY TO THE ASSESSEE. THUS, THE ASSESSEE IS ENTITLED FOR HEARING OF THE APPEAL ON MERIT. THEREFORE, WE ALLOW THE GROUN D NO. 1 OF THE APPEAL AND RESTORE THE APPEAL TO THE FILE OF LD CIT(A) TO DECIDED THE APPEAL IN ACCORDANCE WITH LAW. NEEDLESS TO ORDER THAT THE LD CIT(A) SHALL GRANT SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THE ASSESSE E IS ALSO DIRECTED TO PROVIDE ALL RELEVANT DOCUMENTARY EVIDENCES AND INFO RMATION TO THE LD CIT(A). IN THE RESULT GROUND NO.1 OF THE APPEAL IS ALLOWED. 6. AS WE HAVE ALLOWED GROUND NO.1 AND RESTORE THE APPE AL TO THE FILE OF LD CIT(A) THEREFORE, THE DISCUSSIONS ON THE OTHER GROU ND OF APPEAL HAVE BECOME ACADEMIC. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO. 967 TO 969/MUM/2018 FOR AY 2012-13 TO 2014-15 8. THE ASSESSEE HAS RAISED IDENTICAL GROUNDS OF APPEAL AS RAISED IN APPEAL FOR AY 2011-12, EXCEPT VARIOUS OF FIGURE OF ADDITIO NS, THEREFORE, CONSIDERING OUR DECISION FOR AY 2011-12 ON IDENTIC AL GROUNDS, THESE APPEALS ARE ALSO RESTORED TO THE FILE OF LD CIT(A) WITH SIMILAR DIRECTION. 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 20/03/2019. SD/- SD /- N.K. PRADHAN, PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 20.03.2019 SK ITA NO. 966 TO 969 MUM 2018-SHRI SHRIKANT AGARWAL 7 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR G BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI