SAMEER SUBHASH HOSMANI,MUMBAI V. ITO, WARD 35(3)(1), MUMBAI, MUMBAI

ITA 2412/MUM/2024

AI Insights

The case involves an appeal by Sameer Subhash Hosmani against the order of the Additional/Joint Commissioner of Income Tax (Appeals)-1, Gurugram, which upheld various additions made by the Assessing Officer under sections 69C and 56 of the Income Tax Act, 1961. These additions included unexplained expenditures and unexplained money deposits in the bank account. The primary contention was the procedural validity of the notice issued under section 148 instead of section 153C, following a search and seizure operation. The Tribunal found that the CIT(A) had dismissed the appeal ex-parte due to non-appearance of the assessee without adjudicating on the merits, which was against the principles laid down by the Bombay High Court in CIT v/s Premkumar Arjundas Luthra (HUF).

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 470797 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2013-2014
• Other Referred Cases: CIT v/s Premkumar Arjundas Luthra (HUF)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRAN UNAVEKAR
• Assessee Lawyers: RAKHI DHOLAKIYA
• Keywords: Set aside; Unexplained expenditure; Salary income; Principle of natural justice; Search and seizure
• Section: 148; 250; 56; 132; 69C; 153C

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “K(SMC)” BENCH, MUMBAI BEFORE SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER ITA No.2412/MUM/2024 (Assessment Year : 2013–14) SAMEER SUBHASH HOSMANI, Flat no. 1, Shreenath Dham, W.S. Road, Opp. Jana Seva Bank, Dahisar East, Mumbai - 400068 Maharashtra PAN: ADIPH3121L ……………. Appellant v/s ITO, Ward 35(3)(1), Mumbai Kautilya Bhavan, Bandra Kurla Complex, Mumbai - 400051 Maharashtra ……………. Respondent Assessee by : Ms. Rakhi Dholakiya, CA Revenue by : Shri Kiran Unavekar, Sr. DR Date of Hearing – 13/02/2025 Date of Order – 14/02/2025 O R D E R PER SANDEEP SINGH KARHAIL, J.M. The present appeal has been filed by the assessee challenging the impugned order dated 05/03/2024, passed under section 250 of the Income Tax Act, 1961 (“the Act”) by the learned Additional/Joint Commissioner of Income Tax (Appeals)-1, Gurugram [“learned Addl./Joint CIT(A)”], for the Assessment Year 2013-14. 2. In this appeal, the assessee has raised the following grounds: - “1. The learned CIT(A) has erred in law and on facts in upholding the assessment order passed by the Assessing Officer. ITA No.2412-Mum-2024 (A.Y. 2013-14) 2 2. The learned CIT(A) has erred in confirming the addition of Rs. 64,550/- made by the Assessing Officer u/s 69C of the Act on account of alleged unexplained expenditure of the appellant towards i) Rs. 23,550/- as estimated annual household expenses and ii) Rs. 41,000/- as alleged cash payment made to the builder over the agreement value. 3. The learned CIT(A) has erred in confirming the addition of Rs. 1,03,500/- made by the Assessing Officer u/s 69C of the Act on account of alleged unexplained money deposited in the bank account. 4. The learned CIT(A) has erred in confirming the addition of Rs. 732/- made by the Assessing Officer u/s 56 of the Act on account of bank interest. 5. The learned CIT(A) has erred in confirming the addition of Rs. 20,000/- made by the Assessing Officer on account of alleged difference noticed by him in salary income. 6. The CIT(A) has failed to appreciate that the appellant had sufficient sources to augment his expenses and deposits made in the bank. 7. The learned CIT(A) ought to have appreciated that the notice u/s 148 of the Act was issued pursuant to the information received from DDIT(Inv) Pune that during the search and seizure action u/s 132 of the Act in case of Ameya Builders and Property Developers at Virar on 31.07.2014 certain papers were seized and it was found that the appellant had paid Rs. 41,000/- in cash during the previous year under consideration which had escaped assessment. As such, the Assessing Officer ought to have issued notice u/s 153C of the Act as per the provisions of the Act and the Assessing Officer had no authority to issue notice u/s 148 of the Act. 8. The learned CIT(A) has failed to appreciate that the various additions made to the income of the appellant are based on presumption, suspicion, surmises and without any evidence. 9. The order passed by the CIT(A) is bad in law, without jurisdiction and in violation of principles of natural justice. 10. The appellant carves leave to add to, amend, alter or delete all or any of the foregoing grounds of appeal.” 3. We have considered the submissions of both sides and perused the material available on record. In the present case, at the outset, it is evident that the learned Addl./Joint CIT(A) has passed the order ex-parte due to the non-appearance of/on behalf of the assessee. We further find that the learned Addl./Joint CIT(A) merely on the basis of non-compliance with notices, dismissed the appeal filed by the assessee without adjudicating the grounds ITA No.2412-Mum-2024 (A.Y. 2013-14) 3 raised by the assessee on merits, as required under section 250(6) of the Act. We find that in CIT v/s Premkumar Arjundas Luthra (HUF), reported in [2016] 69 taxmann.com 407 (Bombay), the Hon’ble Jurisdictional High Court held that Commissioner (Appeals) cannot dismiss the appeal on account of non- prosecution of appeal by the assessee. Consequently, we deem it fit and proper to set aside the impugned order and restore the matter to the file of the learned Addl./Joint CIT(A) for de novo adjudication of the appeal on merits. We further direct that no order shall be passed without affording reasonable opportunity of hearing to the parties. The assessee is directed to appear before the learned Addl./Joint CIT(A) on all the hearing dates as may be fixed without any default. As the matter is being restored to the file of the learned Addl./Joint CIT(A) for adjudication on merits, the other grievances raised by the assessee in the present appeal do not call for adjudication at this stage. Accordingly, grounds raised by the assessee are allowed for statistical purposes. 4. In the result, the appeal by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 14/02/2025 Sd/- Sd/- -GIRISH AGRAWAL ACCOUNTANT MEMBER SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 14/02/2025 Biswajit ITA No.2412-Mum-2024 (A.Y. 2013-14) 4 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The PCIT / CIT (Judicial); (4) The DR, ITAT, Mumbai; and (5) Guard file. True Copy By Order Assistant Registrar ITAT, Mumbai "