RAJBHUSHAN OMPRAKASH DIXIT,MUMBAI V. JT. COMMISSIONER (OSD), CENTRAL CIRCLE

ITA 941/MUM/2025

AI Insights

The case involves Rajbhushan Omprakash Dixit, the appellant, contesting an order from the Commissioner of Income Tax (Appeals) - 48, Mumbai, which upheld an addition of INR 74,00,000 made by the Joint Commissioner of Income Tax under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961. The appellant raised multiple grounds including the denial of a final opportunity to present his case, the validity of the reassessment based on mere change of opinion, and the reliance on unsubstantiated diary entries of a third party. The Tribunal noted that the appellant was unable to respond to multiple notices due to his involvement in ongoing criminal proceedings and the deteriorating health of his authorized representative, which were not willful failures but due to bona fide circumstances.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 707088 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2012-2013
• Appeal Filed On: 11-02-2025
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASIF KAR MALI
• Assessee Lawyers: SANKALP SHARMA AW
• Keywords: Set aside; Difference of opinion; Change of opinion; Opportunity of being heard; Principle of natural justice; Loose papers
• Section: 143(3)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “J (SMC)” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI RAJ KUMAR CHAUHAN (JUDICIAL MEMBER) ITA No. 941/MUM/2025 Assessment Year: 2012-13 Rajbhushan Omprakash Dixit, 201/12, Jawahar Nagar, Road No. 13 Goregaon (West), Mumbai-400062. Vs. Jt. Commissioner (OSD), Office of CIT(A)-48, Mumbai-400052. PAN NO. AACPD 9215 C Appellant Respondent Assessee by : Mr. Sankalp Sharma a/w Mr. Ameya Vaidya, Adv. Revenue by : Mr. Asif Karmali, Sr. DR Date of Hearing : 02/07/2025 Date of pronouncement : 10/07/2025 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against order dated 17.12.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – 48, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2012-13, raising following grounds: 1. That on the facts and in the circumstances of the case, and in law, the Learned Commissioner of Income Tax (Appeals) - 48, Mumbai [Ld. CIT(A)] erred in [74,00,000] made by the Ld. Jt. Commissioner of Income Tax (OSD), Central Circle 2(4), Mumbai [Ld. AO] under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961, ['Act'] without appreciating the factual matrix and judicial p in the instant matter. 2. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in denying a final opportunity to the Appellant to present its case before the Appellate authority. 3. That on the facts an the Leamed CIT(A) erred in not appreciating that no fresh documents or information was available with the Ld. AO to reopen the assessment merely change of opinion is not legally v 4. That on the facts and circumstances of the case, and in law, the Ld. CIT(A) erred in ignoring the fact that the impugned assessment order is time barred as prescribed u/s 153(2) of the Act and consequently, the impugned assessment order is void ab initio. 5. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in not appreciating that the impugned assessment order is based on unsubstantiated diary entries of a third party and therefore the entire reassessment action Ld. AO is based upon the basis of dumb documents and hence invalid. 6. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in not appreciating that the action of Ld. AO in reassessment of Income of the Appellant on entries of seized electronic data without any basis and based on 'doubt' which is also admitted by the Ld. AO. 7. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in confirming the action of the Ld. AO without appreciating that the reassessment should be based on concrete evidence linking the Appellant to the escaped income and not mere assumptions. 8. That on the facts and circumstances of the case, and in law, the Learned AO erred in initiating penalty pr (c) and 271(1)(b) Rajbhushan Omprakash Dixit Mumbai [Ld. CIT(A)] erred in upholding the addition of INR [74,00,000] made by the Ld. Jt. Commissioner of Income Tax (OSD), Central Circle 2(4), Mumbai [Ld. AO] under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961, ['Act'] without appreciating the factual matrix and judicial precedents applicable in the instant matter. 2. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in denying a final opportunity to the Appellant to present its case before the Appellate authority. 3. That on the facts and circumstances of the case, and in law, the Leamed CIT(A) erred in not appreciating that no fresh documents or information was available with the Ld. AO to reopen the assessment and hence the reassessment based on merely change of opinion is not legally valid. 4. That on the facts and circumstances of the case, and in law, CIT(A) erred in ignoring the fact that the impugned assessment order is time barred as prescribed u/s 153(2) of the Act and consequently, the impugned assessment order is void ab 5. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in not appreciating that the impugned assessment order is based on unsubstantiated diary entries of a third party and therefore the entire reassessment action Ld. AO is based upon the basis of dumb documents and hence 6. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in not appreciating that the action of Ld. AO in reassessment of Income of the Appellant on the basis of entries of seized electronic data without any basis and based on 'doubt' which is also admitted by the Ld. AO. 7. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in confirming the action of the Ld. AO hout appreciating that the reassessment should be based on concrete evidence linking the Appellant to the escaped income and not mere assumptions. 8. That on the facts and circumstances of the case, and in law, the Learned AO erred in initiating penalty proceedings u/s 271(1) (c) and 271(1)(b) of the Act Rajbhushan Omprakash Dixit 2 ITA No. 941/MUM/2025 upholding the addition of INR [74,00,000] made by the Ld. Jt. Commissioner of Income Tax (OSD), Central Circle 2(4), Mumbai [Ld. AO] under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961, ['Act'] without recedents applicable 2. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in denying a final opportunity to the Appellant to present its case before the Appellate authority. d circumstances of the case, and in law, the Leamed CIT(A) erred in not appreciating that no fresh documents or information was available with the Ld. AO to and hence the reassessment based on 4. That on the facts and circumstances of the case, and in law, CIT(A) erred in ignoring the fact that the impugned assessment order is time barred as prescribed u/s 153(2) of the Act and consequently, the impugned assessment order is void ab 5. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in not appreciating that the impugned assessment order is based on unsubstantiated diary entries of a third party and therefore the entire reassessment action by the Ld. AO is based upon the basis of dumb documents and hence 6. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in not appreciating that the action of Ld. the basis of entries of seized electronic data without any basis and based on 7. That on the facts and circumstances of the case, and in law, the Learned CIT(A) erred in confirming the action of the Ld. AO hout appreciating that the reassessment should be based on concrete evidence linking the Appellant to the escaped income 8. That on the facts and circumstances of the case, and in law, oceedings u/s 271(1) 2. At the very outset, learned counsel appearing for the assessee submitted that the Ld. CIT(A) has disposed of the appeal without considering the submissions of the assessee. It was thus prayed that the matter may be remanded to the Ld. CIT(A) for fresh adjudication on merits, in accordance with law. 3. We have heard the rival submissions advanced by both sides and perused the material available on record. It is observed that the Ld. CIT(A) had issued as many as nine notices to the assessee, which, according to the Ld. CIT(A), were not complied with. However, before us, the assessee has placed on record a duly sworn affidavit, explaining the reasons for such non 3.1 In the said affidav unable to respond to the notices issued by the Ld. CIT(A) due to his involvement in ongoing criminal proceedings initiated by the Directorate of Enforcement and the Serious Fraud Investigation Office (SFIO) in relation to a company, in which he was a director. It is stated that these proceedings, being rigorously pursued by the investigating agencies, constrained his ability to engage with the appellate proceedings effectively. 3.2 Further, the assessee has stated th authorized representative, Mr. Hemant S. Hathi, a Chartered Accountant, has been suffering from Alzheimer's disease since 2018, which deprived the assessee of professional guidance during Rajbhushan Omprakash Dixit At the very outset, learned counsel appearing for the assessee submitted that the Ld. CIT(A) has disposed of the appeal without considering the submissions of the assessee. It was thus that the matter may be remanded to the Ld. CIT(A) for fresh adjudication on merits, in accordance with law. We have heard the rival submissions advanced by both sides and perused the material available on record. It is observed that the ssued as many as nine notices to the assessee, which, according to the Ld. CIT(A), were not complied with. However, before us, the assessee has placed on record a duly sworn affidavit, explaining the reasons for such non-compliance. In the said affidavit, the assessee has averred that he was unable to respond to the notices issued by the Ld. CIT(A) due to his involvement in ongoing criminal proceedings initiated by the Directorate of Enforcement and the Serious Fraud Investigation ion to a company, in which he was a director. It is stated that these proceedings, being rigorously pursued by the investigating agencies, constrained his ability to engage with the appellate proceedings effectively. Further, the assessee has stated that his long authorized representative, Mr. Hemant S. Hathi, a Chartered Accountant, has been suffering from Alzheimer's disease since 2018, which deprived the assessee of professional guidance during Rajbhushan Omprakash Dixit 3 ITA No. 941/MUM/2025 At the very outset, learned counsel appearing for the assessee submitted that the Ld. CIT(A) has disposed of the appeal ex-parte, without considering the submissions of the assessee. It was thus that the matter may be remanded to the Ld. CIT(A) for fresh We have heard the rival submissions advanced by both sides and perused the material available on record. It is observed that the ssued as many as nine notices to the assessee, which, according to the Ld. CIT(A), were not complied with. However, before us, the assessee has placed on record a duly sworn compliance. it, the assessee has averred that he was unable to respond to the notices issued by the Ld. CIT(A) due to his involvement in ongoing criminal proceedings initiated by the Directorate of Enforcement and the Serious Fraud Investigation ion to a company, in which he was a director. It is stated that these proceedings, being rigorously pursued by the investigating agencies, constrained his ability to engage with the at his long-standing authorized representative, Mr. Hemant S. Hathi, a Chartered Accountant, has been suffering from Alzheimer's disease since 2018, which deprived the assessee of professional guidance during the relevant period. It is also submitted that sought by the newly appointed advocate on two occasions, which were not acceded to by the Ld. CIT(A). It is pointed out that the impugned order dated 17.12.2024 does not record any finding on whether such requests were considered or rejec part of the affidavit is reproduced as “13. I say that it is alleged by the Ld. Commissioner of Income Tax in his order dated 17.12.2024 that despite various notices being issued to file submission from 25.11.2019 to 10.12.2024, I failed to respond to them and have merely sought adjournment. 14. I say that the Directorate of Enforcement had registered an ECIR no. 32 of 2017 against Sterling Biotech Limited and its promoters and directors in 2018. I say that since the promoters SBL are absconding, the said investigating agency is rigorously pursuing the matter by going after the directors. I say that due to the said proceedings before the Directorate of Enforcement, I was unable to respond particularly to notices issued on 25. and 05.12.2019. 15. I say that the Serious Fraud Investigation Office (\"SFIO\") had filed a Complaint bearing SPL Case No. 517 of 2022 before the Hon'ble Sessions Court against Sterling Biotech Limited and its promoters and directors in 2022. I say SBL are absconding, the said investigating agency is rigorously pursuing the matter by going after the directors. 16. I say that the aforesaid Criminal Proceedings mentioned in Paragraph No. 14 & 15 are still going on against m due to this reason I was not able to respond to notices seeking submissions issued by Ld. Commissioner of Income Tax, Appeal, CIT (A) 48, Mumbai. 17. I say that my authorized representative, Mr. Hemant S. Hathi, CA has been suffering from Alzhe 2018. Mr. Hemant S. Hathi had been advising me and filing replies on my behalf to all the queries raised by the Department since 2013. However, due to his deteriorating health condition since 2018, he has been unable to respon by the Department. Consequently, I was bereft of his sound Rajbhushan Omprakash Dixit the relevant period. It is also submitted that adjournments were sought by the newly appointed advocate on two occasions, which were not acceded to by the Ld. CIT(A). It is pointed out that the impugned order dated 17.12.2024 does not record any finding on whether such requests were considered or rejected. part of the affidavit is reproduced as under: 13. I say that it is alleged by the Ld. Commissioner of Income Tax in his order dated 17.12.2024 that despite various notices being issued to file submission from 25.11.2019 to 10.12.2024, I failed to respond to them and have merely sought adjournment. 14. I say that the Directorate of Enforcement had registered an ECIR no. 32 of 2017 against Sterling Biotech Limited and its promoters and directors in 2018. I say that since the promoters SBL are absconding, the said investigating agency is rigorously pursuing the matter by going after the directors. I say that due to the said proceedings before the Directorate of Enforcement, I was unable to respond particularly to notices issued on 25. and 05.12.2019. 15. I say that the Serious Fraud Investigation Office (\"SFIO\") had filed a Complaint bearing SPL Case No. 517 of 2022 before the Hon'ble Sessions Court against Sterling Biotech Limited and its promoters and directors in 2022. I say that since the promoters of SBL are absconding, the said investigating agency is rigorously pursuing the matter by going after the directors. 16. I say that the aforesaid Criminal Proceedings mentioned in Paragraph No. 14 & 15 are still going on against me and hence due to this reason I was not able to respond to notices seeking submissions issued by Ld. Commissioner of Income Tax, Appeal, CIT (A) 48, Mumbai. 17. I say that my authorized representative, Mr. Hemant S. Hathi, CA has been suffering from Alzheimer's disease since the year 2018. Mr. Hemant S. Hathi had been advising me and filing replies on my behalf to all the queries raised by the Department since 2013. However, due to his deteriorating health condition since 2018, he has been unable to respond to the notices issued by the Department. Consequently, I was bereft of his sound Rajbhushan Omprakash Dixit 4 ITA No. 941/MUM/2025 adjournments were sought by the newly appointed advocate on two occasions, which were not acceded to by the Ld. CIT(A). It is pointed out that the impugned order dated 17.12.2024 does not record any finding on ted. The relevant 13. I say that it is alleged by the Ld. Commissioner of Income Tax in his order dated 17.12.2024 that despite various notices being issued to file submission from 25.11.2019 to 10.12.2024, I have failed to respond to them and have merely sought adjournment. 14. I say that the Directorate of Enforcement had registered an ECIR no. 32 of 2017 against Sterling Biotech Limited and its promoters and directors in 2018. I say that since the promoters of SBL are absconding, the said investigating agency is rigorously pursuing the matter by going after the directors. I say that due to the said proceedings before the Directorate of Enforcement, I was unable to respond particularly to notices issued on 25.11.2019 15. I say that the Serious Fraud Investigation Office (\"SFIO\") had filed a Complaint bearing SPL Case No. 517 of 2022 before the Hon'ble Sessions Court against Sterling Biotech Limited and its that since the promoters of SBL are absconding, the said investigating agency is rigorously 16. I say that the aforesaid Criminal Proceedings mentioned in e and hence due to this reason I was not able to respond to notices seeking submissions issued by Ld. Commissioner of Income Tax, Appeal, 17. I say that my authorized representative, Mr. Hemant S. Hathi, imer's disease since the year 2018. Mr. Hemant S. Hathi had been advising me and filing replies on my behalf to all the queries raised by the Department since 2013. However, due to his deteriorating health condition d to the notices issued by the Department. Consequently, I was bereft of his sound professional advice and was unable to respond to the notices issued during this period 18. I say that in response to your notice dated 13.11.2024, my current Advocate on Rec sought adjournment and permission to file Vakalatnama before the Ld. Commissioner of Income Tax, Appeal, CIT (A) 48, Mumbai. However, it is nowhere mentioned in the order dated 17.12.2024 whether the Ld. Commissioner of Mumbai had allowed or rejected the request of my advocate on record for adjournment. 19. I say that with regards to notices dated 15.03.2024, 24.07.2024, 12.09.2024 and 10.12.2024, I was unable to file submission as directe Proceedings going on against me as described in detail in the aforesaid paragraphs. 20. I say that the said inability to respond effectively to the said notices was not deliberate and the same was due to the rigoro Criminal Proceedings conducted by various agencies against me and also due to the absence of professional advice which was not available to me in the absence of my authorized representative Mr. Hemant S. Hathi, CA who was suffering from Alzheimer diseas 21. I say that I have tried diligently to pursue my Appeal before the Ld. Commissioner of Income Tax, Appeal, CIT (A) 48, Mumbai and hence this Hon'ble Tribunal should liberally consider the reasons due to which I was unable to effectively respond to th notices issued by the Ld. Commissioner of Income Tax, Appeal, CIT (A) 48, Mumbai 4. The portion of the affidavit, reproduced the failure to respond to the notices issued by the Ld. CIT(A) was neither willful nor deliberate, but was occasioned by bona fide circumstances beyond the control of the assessee. assertions made in the affidavit have no rebutted by the Revenue. 4.1 In view of the above and considering the principles of natural justice, we are of the opinion that the assessee was prevented by Rajbhushan Omprakash Dixit professional advice and was unable to respond to the notices issued during this period 18. I say that in response to your notice dated 13.11.2024, my current Advocate on Record had vide letter dated 19.11.2024 sought adjournment and permission to file Vakalatnama before the Ld. Commissioner of Income Tax, Appeal, CIT (A) 48, Mumbai. However, it is nowhere mentioned in the order dated 17.12.2024 whether the Ld. Commissioner of Income Tax, Appeal, CIT (A) 48, Mumbai had allowed or rejected the request of my advocate on record for adjournment. 19. I say that with regards to notices dated 15.03.2024, 24.07.2024, 12.09.2024 and 10.12.2024, I was unable to file submission as directed in the said notices due to the Criminal Proceedings going on against me as described in detail in the paragraphs. 20. I say that the said inability to respond effectively to the said notices was not deliberate and the same was due to the rigoro Criminal Proceedings conducted by various agencies against me and also due to the absence of professional advice which was not available to me in the absence of my authorized representative Mr. Hemant S. Hathi, CA who was suffering from Alzheimer diseas 21. I say that I have tried diligently to pursue my Appeal before the Ld. Commissioner of Income Tax, Appeal, CIT (A) 48, Mumbai and hence this Hon'ble Tribunal should liberally consider the reasons due to which I was unable to effectively respond to th notices issued by the Ld. Commissioner of Income Tax, Appeal, Mumbai.” The portion of the affidavit, reproduced above the failure to respond to the notices issued by the Ld. CIT(A) was neither willful nor deliberate, but was occasioned by bona fide circumstances beyond the control of the assessee. Importantly, the assertions made in the affidavit have not been controverted or rebutted by the Revenue. In view of the above and considering the principles of natural justice, we are of the opinion that the assessee was prevented by Rajbhushan Omprakash Dixit 5 ITA No. 941/MUM/2025 professional advice and was unable to respond to the notices 18. I say that in response to your notice dated 13.11.2024, my ord had vide letter dated 19.11.2024 sought adjournment and permission to file Vakalatnama before the Ld. Commissioner of Income Tax, Appeal, CIT (A) 48, Mumbai. However, it is nowhere mentioned in the order dated 17.12.2024 Income Tax, Appeal, CIT (A) 48, Mumbai had allowed or rejected the request of my advocate on 19. I say that with regards to notices dated 15.03.2024, 24.07.2024, 12.09.2024 and 10.12.2024, I was unable to file d in the said notices due to the Criminal Proceedings going on against me as described in detail in the 20. I say that the said inability to respond effectively to the said notices was not deliberate and the same was due to the rigorous Criminal Proceedings conducted by various agencies against me and also due to the absence of professional advice which was not available to me in the absence of my authorized representative Mr. Hemant S. Hathi, CA who was suffering from Alzheimer disease. 21. I say that I have tried diligently to pursue my Appeal before the Ld. Commissioner of Income Tax, Appeal, CIT (A) 48, Mumbai and hence this Hon'ble Tribunal should liberally consider the reasons due to which I was unable to effectively respond to the notices issued by the Ld. Commissioner of Income Tax, Appeal, establishes that the failure to respond to the notices issued by the Ld. CIT(A) was neither willful nor deliberate, but was occasioned by bona fide Importantly, the t been controverted or In view of the above and considering the principles of natural justice, we are of the opinion that the assessee was prevented by sufficient cause from participating in the appellate proceedings. We, therefore, find it just and appropriate to set aside the order passed by the Ld. CIT(A) and adjudication. The Ld. CIT(A) shall decide the appeal afre merits, after affording adequate and reasonable opportunity of being heard to the assessee. 4.2 Ordered accordingly. 5. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on Sd/ (RAJ KUMAR CHAUHAN JUDICIAL MEMBER Mumbai; Dated: 10/07/2025 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// Rajbhushan Omprakash Dixit sufficient cause from participating in the appellate proceedings. We, therefore, find it just and appropriate to set aside the order passed by the Ld. CIT(A) and remand the matter to him for adjudication. The Ld. CIT(A) shall decide the appeal afre merits, after affording adequate and reasonable opportunity of being heard to the assessee. Ordered accordingly. In the result, the appeal of the assessee is allowed for statistical purposes. nounced in the open Court on 10/0 Sd/- Sd/ (RAJ KUMAR CHAUHAN) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Rajbhushan Omprakash Dixit 6 ITA No. 941/MUM/2025 sufficient cause from participating in the appellate proceedings. We, therefore, find it just and appropriate to set aside the order passed remand the matter to him for de-novo adjudication. The Ld. CIT(A) shall decide the appeal afresh on merits, after affording adequate and reasonable opportunity of In the result, the appeal of the assessee is allowed for /07/2025. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai "