MAQSOOD AHMED SOLANKI,MUMBAI V. INCOME TAX OFFICER, MUMBAI

ITA 4257/MUM/2024

AI Insights

This case involves an appeal by Maqsood Ahmed Solanki against the order of the Ld. Commissioner of Income-tax (Appeals) - National Faceless Appeal Centre, Delhi, for the assessment year 2011-12. The primary issues in the appeal were the non-communication of notices to the appellant due to technical issues and the erroneous consideration of bank balances and sources of funds by the Assessing Officer (A.O.). The ITAT noted that the Ld. CIT(A) had decided the appeal without a hearing due to the appellant's non-compliance with the notices, which were not communicated properly. The ITAT emphasized the need for a reasoned order from the Ld. CIT(A) regardless of the appellant's non-compliance and restored the matter for a fresh decision.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 32022 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2024
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 17-10-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 22-08-2024
• Other Referred Cases: CIT Vs B. N. Bhattacharjee and others [1979] {10 CTR 354}
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R.R. MAKWANA
• Assessee Lawyers: KRISH DESAI
• Keywords: Unexplained cash credit; Source of fund; Non compliance
• Section: 143(3)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND MS. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) ITA No. 4257/MUM/2024 Assessment Year: 2011-12 Maqsood Ahmed Solanki, 357, Ebrahim Rehmatullah Road Pydhonie, Mumbai-400 003 Vs. ITO Ward 17(2)(3), Mumbai. PAN NO. AZRPS 2368 B Appellant Respondent Assessee by : Mr. Krish Desai Revenue by : Mr. R.R. Makwana, Sr. DR Date of Hearing : 17/10/2024 Date of pronouncement : 18/10/2024 ORDER PER OM PRAKASH KANT, AM This appeal has been preferred by the assessee against order dated 02.08.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2011-12, raising following grounds: Ground: 1)The learned CIT (Appeal) issued notices on 29.01.2021, 11.07.2024 and 24.07.2024 however the said notices were not communicated to the appellant due to technical issue therefore no response was submitted. give a chance of hearing so he can submit the response. 2) The learned CIT (A) have erred without considering the fact and grounds of appeal. while doing so the learned CIT(A) amongst others failed to appreciate that: (a) The Appellant ha made Cash deposit of Rs. 19,50,000/ of cash Balance & withdraw from Bank A/c but the Learned A.O. has considered wrong Bank Balance on estimation basis and treated as unexplained Credit u/s 68. (b) The Appellant has submitted the details of sources of Fund (i.e. Cash and Loan Parties) from which the property is being purchased, the Ld A.O. did not appreciated the submission and raised the question on genuiness of the Submission and considered the Source of Fund as Unexplained c 2. At the outset, the Ld. counsel for the assessee submitted the impugned order by the Ld. CIT(A) has been passed ex deciding the issue on merit and therefore, matter may be restored back for deciding afresh. 3. We have heard rival sub relevant material on record. The Ld. CIT(A) has decided the issue observing as under: “4.2 During this appeal proceeding various notices were issued u/s 250 of IT ACT 1961 for hearing as under: Date of sending hearing notice Hearing date fixed 29/01/2021 15/02/2021 11/07/2024 18/07/2024 24/07/2024 31/07/2024 notices were not communicated to the appellant due to technical issue therefore no response was submitted. Appellant pray to give a chance of hearing so he can submit the response. 2) The learned CIT (A) have erred without considering the fact and grounds of appeal. while doing so the learned CIT(A) amongst others failed to appreciate that: (a) The Appellant ha made Cash deposit of Rs. 19,50,000/- from the available opening of cash Balance & withdraw from Bank A/c but the Learned A.O. has considered wrong Bank Balance on estimation basis and treated as unexplained Credit u/s 68. (b) The Appellant has the details of sources of Fund (i.e. Cash and Loan Parties) from which the property is being purchased, the Ld A.O. did not appreciated the submission and raised the question on genuiness of the Submission and considered the Source of Fund as Unexplained credit At the outset, the Ld. counsel for the assessee submitted the impugned order by the Ld. CIT(A) has been passed ex deciding the issue on merit and therefore, matter may be restored back for deciding afresh. We have heard rival submission of the parties and perused the relevant material on record. The Ld. CIT(A) has decided the issue During this appeal proceeding various notices were issued u/s 250 of IT ACT 1961 for hearing as under: Hearing date DIN Remarks 15/02/2021 ITBA/NFAC/F/APLJ/2020- 21/1030185589(1) Non compliance 18/07/2024 ITBA/NFAC/F/APL_1/2024- 25/1066601518(1) Non compliance 31/07/2024 ITBA/N FAC/F/APLJ /2024- 25/1066976834(1) Non compliance Maqsood Ahmed Solanki 2 ITA No. 4257/MUM/2024 notices were not communicated to the appellant due to technical Appellant pray to give a chance of hearing so he can submit the response. 2) The learned CIT (A) have erred without considering the fact and grounds of appeal. while doing so the learned CIT(A) amongst others failed to appreciate that: (a) The Appellant has from the available opening of cash Balance & withdraw from Bank A/c but the Learned A.O. has considered wrong Bank Balance on estimation basis and treated as unexplained Credit u/s 68. (b) The Appellant has the details of sources of Fund (i.e. Cash and Loan Parties) from which the property is being purchased, the Ld A.O. did not appreciated the submission and raised the question on genuiness of the Submission and considered the Source of Fund At the outset, the Ld. counsel for the assessee submitted the impugned order by the Ld. CIT(A) has been passed ex-parte without deciding the issue on merit and therefore, matter may be restored mission of the parties and perused the relevant material on record. The Ld. CIT(A) has decided the issue During this appeal proceeding various notices were issued u/s Remarks Non compliance Non compliance Non compliance The appellant has already been given three opportunities in past and on none of the occasion, the appellant submitted any response. Ther^ is no gainsaying that once the appeal is filed by the appellant, it is obligatory on its part to purposefully and co the same in a worthwhile manner, which the appellant has evidently failed to do, 4.3 From the above conduct of the appellant, it is evident that the appellant is no more interested in pursui Supreme Court in the case of CIT Vs B. N. Bhattacharjee and others [1979] {10 CTR 354) observe that preferring an appeal, means effectively pursuing it. Viewed thus, it is presumed that the appellant has no further cogent reasoning o grounds taken in this impugned appeal. The onus is on person making the claim, and the primary responsibility/onus/burden for proving the claim made before the tax authorities (Assessing Officers/Appellate Authorities) li the present case, the appellant has not been able to even discharge the primary onus/burden statutorily & judicially cast upon him to substantiate the claims made in the grounds of appeal in spite of adequate time and opp paras. In view of above no deviation in the order of the AO is seen to be necessary therefore the order of the assessing officer passed under section u/s 143(3) r.w.s 147 of the I.T. Act, 1961 is upheld. Consequently, the grounds raised by the appellant are dismissed. 3.1 We find that though the assessee did not make any compliance of the notice of hearing sent by the Ld. CIT(A) but the Ld. CIT(A) under the provisions of section 250(6) of the Income Act, 1961 (in short ‘the Act’) is required to pass a reasoned and speaking order on the grounds of appeal raised by the assessee even in case non-compliance on the part of the assessee. Therefore, we feel it appropriate to restore the matter back to him for deciding afresh. The assessee is directed to issued by the Ld. CIT(A). The grounds raised by the assessee are accordingly allowed for statistical purposes. The appellant has already been given three opportunities in past and on none of the occasion, the appellant submitted any response. Ther^ is no gainsaying that once the appeal is filed by the appellant, obligatory on its part to purposefully and cooperatively \"pursue the same in a worthwhile manner, which the appellant has evidently 4.3 From the above conduct of the appellant, it is evident that the appellant is no more interested in pursuing appeal. The Hon'ble Supreme Court in the case of CIT Vs B. N. Bhattacharjee and others [1979] {10 CTR 354) observe that preferring an appeal, means effectively pursuing it. Viewed thus, it is presumed that the appellant has no further cogent reasoning or/and evidence to substantiate the grounds taken in this impugned appeal. The onus is on person making the claim, and the primary responsibility/onus/burden for proving the claim made before the tax authorities (Assessing Officers/Appellate Authorities) lies with the assessee/appellant. In the present case, the appellant has not been able to even discharge the primary onus/burden statutorily & judicially cast upon him to substantiate the claims made in the grounds of appeal in spite of adequate time and opportunities given as .brought out in the above In view of above no deviation in the order of the AO is seen to be necessary therefore the order of the assessing officer passed under section u/s 143(3) r.w.s 147 of the I.T. Act, 1961 is upheld. uently, the grounds raised by the appellant are dismissed. We find that though the assessee did not make any compliance of the notice of hearing sent by the Ld. CIT(A) but the Ld. CIT(A) under the provisions of section 250(6) of the Income Act, 1961 (in short ‘the Act’) is required to pass a reasoned and ing order on the grounds of appeal raised by the assessee compliance on the part of the assessee. Therefore, we feel it appropriate to restore the matter back to him for deciding afresh. The assessee is directed to make compliance of the n issued by the Ld. CIT(A). The grounds raised by the assessee are accordingly allowed for statistical purposes. Maqsood Ahmed Solanki 3 ITA No. 4257/MUM/2024 The appellant has already been given three opportunities in past and on none of the occasion, the appellant submitted any response. Ther^ is no gainsaying that once the appeal is filed by the appellant, operatively \"pursue the same in a worthwhile manner, which the appellant has evidently 4.3 From the above conduct of the appellant, it is evident that the ng appeal. The Hon'ble Supreme Court in the case of CIT Vs B. N. Bhattacharjee and others [1979] {10 CTR 354) observe that preferring an appeal, means effectively pursuing it. Viewed thus, it is presumed that the appellant r/and evidence to substantiate the grounds taken in this impugned appeal. The onus is on person making the claim, and the primary responsibility/onus/burden for proving the claim made before the tax authorities (Assessing es with the assessee/appellant. In the present case, the appellant has not been able to even discharge the primary onus/burden statutorily & judicially cast upon him to substantiate the claims made in the grounds of appeal in spite of ortunities given as .brought out in the above In view of above no deviation in the order of the AO is seen to be necessary therefore the order of the assessing officer passed under section u/s 143(3) r.w.s 147 of the I.T. Act, 1961 is upheld. uently, the grounds raised by the appellant are dismissed.” We find that though the assessee did not make any compliance of the notice of hearing sent by the Ld. CIT(A) but the Ld. CIT(A) under the provisions of section 250(6) of the Income-tax Act, 1961 (in short ‘the Act’) is required to pass a reasoned and ing order on the grounds of appeal raised by the assessee compliance on the part of the assessee. Therefore, we feel it appropriate to restore the matter back to him for deciding compliance of the notices issued by the Ld. CIT(A). The grounds raised by the assessee are 4. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on Sd/- (KAVITHA RAJAGOPAL JUDICIAL MEMBER Mumbai; Dated: 18/10/2024 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// In the result, the appeal of the assessee is allowed for statistical purposes. nounced in the open Court on 18/10/2024. Sd/ (KAVITHA RAJAGOPAL) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Maqsood Ahmed Solanki 4 ITA No. 4257/MUM/2024 In the result, the appeal of the assessee is allowed for /10/2024. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai "