SAINATH SAKHARAM TARE,THANE V. ADDITIONAL COMMISSIONER OF INCOME TAX, CENTRAL RANGE, THANE, THANE

ITA 3678/MUM/2024

AI Insights

The case involves Sainath Sakharam Tare, the appellant, who appealed against the order of the Ld. CIT (Appeals) concerning the Assessment Year 2019-20. The primary contention was the ex-parte nature of the CIT(A)'s decision and the penalties imposed under section 271DA of the Income Tax Act for alleged contraventions of section 269ST. The appellant argued that they were not given a fair opportunity to present their case, which led to the tribunal's decision to remand the case back to the CIT(A) for a thorough hearing.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 33781 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 05-09-2024
• Assessment Year: 2019-2020
• Appeal Filed On: 19-07-2024
• Laws Referred To: Income Tax Act
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: KISHOR DHULE; SUJATHA
• Assessee Lawyers: GAURAV KABRA
• Keywords: Opportunity of being heard; Search and seizure
• Section: 143(3); 250; 153A; 153C

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “G”, MUMBAI BEFORE SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER AND SHRI RATNESH NANDAN SAHAY, ACCOUNTANT MEMBER ITA No. 3678/M/2024 Assessment Year: 2019-20 Sainath Sakharam Tare Survey No. 84-10/11, Kalyan Padgha Road, Sape Village, Bhiwandi, Dist. Thane – 421302. PAN: AERPT8712M Vs. Assistant Commissioner of Income Tax, Central Circle – 2, Thane Ashar IT Park, 6th Floor, Road No. 16z, Wagle Industrial Estate, Thane – 400604. (Appellant) (Respondent) Present for : Assessee by : Shri Gaurav Kabra Revenue by : Shri Dr. Kishor Dhule, CIT D.R.& Smt. Sujatha P. Iyangar – Sr. AR. Date of Hearing : 05. 09 . 2024 Date of Pronouncement : 02 . 12 . 2024 O R D E R Per : Ratnesh Nandan Sahay, Accountant Member: 1. This appeal has been filed by the appellant against the Order of the Ld. CIT (Appeals) passed u/s. 250 of the Income Tax Act [the ‘Act’ in short] Page | 2 ITA No.3678/MUM/2024 Sainath Sakharam Tare; A. Y.2019-20 vide DIN & Order No. ITBA/APL/S/250/2024-25/1065032461(1) Dated 21/05/2024 for the Assessment Year 2019-20. 2. Following grounds of appeal have been raised by the appellant: 1. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in passing the ex-parte order, without granting opportunity of being heard to the appellant. 2. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the action of Learned Assessing officer in passing the penalty order u/s.271DA of the Income Tax Act, without considering the facts and circumstances of the case 3. On the facts and circumstances of the case ask well as in law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in levying the penalty of Rs.2,50,40,070/- u/s.271DA of the Income Tax Act 1961, without considering the facts and circumstances of the case. 4. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in Imposing penalty of Rs.2,50,40,070/- on the alleged plea that the appellant was in receipt of contractual amount in cash, amounting to Rs.2,50,40,070/- without considering the facts and circumstances of the case. 5. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in not providing the opportunity of cross examination to Antariksh group specifically asked during the course of proceedings, which is in violation of principal of natural justice” 3. The facts of the case, in brief, are that the search and seizure action u/s. 132 of the Income Tax Act was conducted in Antariksh Group on 14/02/2019 who is engaged in the construction of residential houses, warehousing and commercial retail development since many years. The Page | 3 ITA No.3678/MUM/2024 Sainath Sakharam Tare; A. Y.2019-20 assessee is engaged in providing contractual services to the Antariksh group. During the search operations various documents pertaining to the assessee were found and seized. Since these documents had a bearing on the income of the assessee, hence, the satisfaction was recorded by the Ld. AO to assess his income under section 153A r.w.s. 153C of the Act. During the assessment proceedings, Ld. AO asked the assessee to explain as to how the cash amounting to Rs.2,50,40,070/-received by the assessee as a contractual receipt was accounted for in the books of account? In response to that, the assessee admitted that it had received cash from Antariksha group, however, some of the entries were recorded in the books of accounts and some of the receipts pertains to third party and agreed to offer income @ 5% of the gross receipts. The Ld. AO, however, did not accept the contentions of the assessee and assessed its income u/s. 153C r.w.s. 143(3) of the Act on a total income of Rs.53,65,380/- 4. The Ld. AO also initiated penalty proceedings u/s. 271DA of the Income Tax Act for contravening the provisions of section 269ST of the Income Tax Act. During the penalty proceedings u/s. 271 DA of the Act, the assessee retracted from his earlier statement and stated that the assessee had received contract receipts in cash amounting to Rs.1,96,38,351/- only. The AO, therefore, imposed a penalty of Rs.1,96,38,351/-u/s. 271 DA of the Act for contravention of provision of section 269 ST of the Act Page | 4 ITA No.3678/MUM/2024 Sainath Sakharam Tare; A. Y.2019-20 on the ground that the assessee failed to bring fresh evidence during the penalty proceedings. 5. Aggrieved by the order of the AO, the assessee preferred appeal before the Ld. CIT(A). The Ld. CIT(A) has noted in the impugned order that various opportunities were given to the assessee to explain its case before him, however, no response was received from the assessee side. The Ld. CIT(A), therefore, dismissed the appeal of the assessee on the ground that the assessee has failed to provide any details in support of its grounds of appeal raised before him. 6. Aggrieved by the order of the Ld. CIT(A), this appeal has been preferred before us. During the appellate proceedings before us, the appellant submitted that reasonable opportunity of being heard was not given to the appellant and the Ld. CIT(A) has decided the appeal ex-parte. 7. We have considered the facts and circumstances of the case and the impugned order and it is found that though, the appellant didn’t explain its case before the Ld. CIT(A) due to various reasons as stated by the appellant, the fact remained that the assessee was not heard before passing the impugned order. We, therefore, think it proper to remand the matter back to the file of the Ld. CIT(A) to consider the submissions made by the appellant after affording him the reasonable opportunity of being heard. The appellant is also directed to appear before the Ld. Page | 5 ITA No.3678/MUM/2024 Sainath Sakharam Tare; A. Y.2019-20 CIT(A) and provide all necessary details in support of its claim that there is no contravention of the provisions of section 269 ST of the Act. 8. In the result, the appeal is allowed for statistical purpose. Order pronounced on 02.12.2024. Sd/- Sd/- NARENDER KUMAR CHOUDHRY RATNESH NANDAN SAHAY JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated: 02.12.2024. Snehal C. Ayare, Stenographer Copy to:The Appellant The Respondent The CIT, Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai. "