NADEEM YUSUF SARA, MUMBAI V. INCOME TAX OFFICER 21(2)(4), MUMBAI

MA 338/MUM/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0261 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 08-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER MA NO.338/MUM/2018 : ASST.YEAR 2010-2011 (ARISING OUT OF ITA NO.6936/MUM/2017) MA NO.339/MUM/2018 : ASST.YEAR 2012-2013 (ARISING OUT OF ITA NO.6938/MUM/2017) SHRI NADEEM YUSUF SARA FLAT NO.101, NIGHAHE KARAM CHS LTD S.V.SAVARKAR MARG, MAHIM MUMBAI. PAN : BLFPS0265L. / VS. THE INCOME TAX OFFICER WARD 21(2)(4) MUMBAI. ( / APPLICANT) ( / RESPONDENT) APPLICANT BY : SHRI AKASH KUMAR RESPONDENT BY : SHRI SAURABH KUMAR RAI / DATE OF HEARING : 09.11.2018 / DATE OF PRONOUNCEMENT : 05.12.2018 / O R D E R THE ASSESSEE HAS FILED THESE MISCELLANEOUS APPLICA TIONS SUBMITTING THAT THERE ARE MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE TRIBUNAL FOR AY 2010-11 AND 2012-13. 2. THE LD COUNSEL APPEARING FOR THE ASSESSEE SU BMITTED THAT THE ASSESSEE HAS MAINTAINED A BANK ACCOUNT WITH HDFC BA NK AND THE SAME WAS NOT DISCLOSED TO THE DEPARTMENT. THE AO ADDED THE ENTIRE AMOUNT OF DEPOSITS FOUND IN THAT BANK ACCOUNT AS INCOME OF TH E ASSESSEE. BEFORE THE AO, THE ASSESSEE DID NOT PROVIDE DETAILS OF DEPOSIT S. HOWEVER, BEFORE LD CIT(A), THE ASSESSEE FURNISHED CONFIRMATION LETTERS OBTAINED FROM PERSONS MA NO.338 & 339/MUM/2018. SHRI MADEEM YUSUF SARA. 2 FROM WHOM THE MONEY WAS RECEIVED. HOWEVER, THE LD CIT(A) REJECTED THE SAME AND CONFIRMED THE ADDITION, I.E., THE LD CIT(A ) NEITHER EXAMINED THE DOCUMENTS FURNISHED BY THE ASSESSEE NOR DID HE OBTA IN REMAND REPORT FROM THE AO. WHEN THESE FACTS WERE PUT BEFORE THE TRIBU NAL, THE TRIBUNAL AGREED TO RESTORE THIS MATTER TO THE FILE OF THE AO FOR EX AMINING THE ISSUE AFRESH IN BOTH THE YEARS REFERRED ABOVE. HOWEVER, WHILE PASS ING THE ORDER, THE TRIBUNAL HAS CONFIRMED THE ADDITION IN BOTH THE YEA RS. THE LD A.R SUBMITTED THAT THE DOCUMENTS FURNISHED BY THE ASSESSEE TO PRO VE THE SOURCE OF DEPOSITS MADE INTO THE BANK ACCOUNT WERE REMAINED U NEXAMINED AT ANY STAGE AND FURTHER THE ORDER PASSED BY THE TRIBUNAL WAS AGAINST THE OPINION EXPRESSED ON THE BENCH. ACCORDINGLY, THE LD A.R SU BMITTED THAT THE ORDER PASSED BY THE TRIBUNAL WITHOUT CAUSING EXAMINATION OF THE MATERIALS BY THE TAX AUTHORITIES AND ALSO TAKING A VIEW AGAINST THE OPINION EXPRESSED BY IT CONSTITUTES MISTAKE APPARENT FROM RECORD. ACCORDIN GLY, THE LD A.R SUBMITTED THAT THE ORDER PASSED ON THE ISSUE OF UNEXPLAINED D EPOSITS FOUND IN HDFC BANK ACCOUNT IN AY 2010-11 AND 2012-13 MAY BE RECAL LED TO RECTIFY THE MISTAKE APPARENT FORM RECORD AND RENDER JUSTICE. 3. THE LD D.R, ON THE CONTRARY, SUBMITTED THAT THE TRIBUNAL HAS TAKEN A VIEW IN THIS MATTER AND HENCE THE SAME DOES NOT CAL L FOR ANY INTERFERENCE. 4. I HAVE HEARD THE PARTIES AND PERUSED THE RECO RD. A PERUSAL OF THE ASSESSMENT ORDER AS WELL AS THE LD CIT(A) SHOWS THA T THE FACTS NARRATED BY THE LD A.R IS CORRECT, MEANING THEREBY, THE EVIDENC ES FURNISHED BY THE ASSESSEE REMAINED UNEXAMINED BY ANY OF THE TAX AUTH ORITIES. HENCE THE TRIBUNAL HAS EXPRESSED THE VIEW DURING THE COURSE O F HEARING THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE AO. HOWEVER, TH E TRIBUNAL HAS CONFIRMED MA NO.338 & 339/MUM/2018. SHRI MADEEM YUSUF SARA. 3 THE ADDITION, WHICH IS CONTRARY TO THE OPINION EXPR ESSED ON THE BENCH AND FURTHER THE DOCUMENTS FURNISHED BY THE ASSESSEE ALS O REMAINED UNEXAMINED. HENCE I AGREE WITH THE CONTENTIONS OF THE ASSESSEE THAT A MISTAKE APPARENT FROM RECORD HAS OCCURRED ON THIS I SSUE IN BOTH THE YEARS UNDER CONSIDERATION. 5. IN VIEW OF THE ABOVE, I REPLACE PARAGRAPH 10 OF THE ORDER WITH THE FOLLOWING PARAGRAPH:- 10. I HAVE HEARD BOTH THE PARTIES ON THIS ISSUE AND PERUSED THE RECORD. ADMITTEDLY THE ASSESSEE DID NOT DISCLOSE T HIS BANK ACCOUNT IN ITS BOOKS OF ACCOUNT AS WELL AS IN THE RETURN OF IN COME FILED BEFORE THE ASSESSING OFFICER. THOUGH THE ASSESSEE DID NOT EXP LAIN SOURCES OF DEPOSITS BEFORE THE AO, YET HE FILED CERTAIN DETAIL S BY WAY OF CONFIRMATION LETTERS OBTAINED FROM PARTIES ALONG WI TH THEIR PAN NUMBER. WE NOTICE THAT THE LD CIT(A) DID NOT EXAMINE THOSE DETAILS NOR DID HE CONFRONT THE SAME WITH THE AO. HENCE, IN THE INTER EST OF NATURAL JUSTICE, I AM OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION IN BOTH THE YEARS AT THE END OF AO. ACCORDINGLY I SET ASIDE THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE IN BOTH THE YEARS AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER FOR EXAMI NING IT AFRESH IN BOTH THE YEARS. 6. ACCORDINGLY THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE DISPOSED OF. MA NO.338 & 339/MUM/2018. SHRI MADEEM YUSUF SARA. 4 7. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FILED FOR BOTH THE YEARS ARE ALLOWED. ORDER HAS BEEN PRONOUNCED IN THE COURT ON 05.12. 2018 SD/- (B.R.BASKARAN) / ACCOUNTANT MEMBER MUMBAI; DATED : 05 TH DECEMBER, 2018. DEVDAS* !'#$%&%'# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ! ' ( ) / THE CIT, MUMBAI. 4. ! ! ' / CIT(A)-33, MUMBAI 5. %&' (()* , ! )* , / DR, ITAT, MUMBAI 6. ',-. / GUARD FILE. / BY ORDER, %( //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI