ALPHA HEAVY ENGINEERING PVT. LTD.,MUMBAI vs. INCOME TAX OFFICER 15(1)(1) MUMBAI, MUMBAI
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Income Tax Appellate Tribunal, MUMBAI BENCH “A” MUMBAI
Before: SHRI AMIT SHUKLA & MS. PADMAVATHY S.
PER PADMAVATHY S., AM
This appeal is against the order of the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre dated 13.03.2023 for assessment year 2012-13. The assessee raised the following grounds:
In the facts and circumstances of the case and in law, the National Faceless Appeal Centre - CIT(A) has erred in confirming the action of the Ld. Assessing Officer of adding Rs. 11,68,000/- to the income of the appellant being 20% of alleged
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contract receipts of Rs. 58,40,000/ contract receipts of Rs. 58,40,000/-when the actual contract when the actual contract receipts are Rs. 29,20.000/ receipts are Rs. 29,20.000/- • 2. Without prejudice to the above ground, the National Faceless 2. Without prejudice to the above ground, the National Faceless 2. Without prejudice to the above ground, the National Faceless Appeal Centre Appeal Centre - CIT(A) has erred in the facts and circumstances rred in the facts and circumstances of the case and in law in estimating income at exorbitant rate of of the case and in law in estimating income at exorbitant rate of of the case and in law in estimating income at exorbitant rate of 20% of contract receipts. 20% of contract receipts. 3. In the facts and circumstances of the case and in law, the 3. In the facts and circumstances of the case and in law, the 3. In the facts and circumstances of the case and in law, the National Faceless Appeal Centre National Faceless Appeal Centre - CIT(A) has erred in confirming CIT(A) has erred in confirming the action of the Ld. Assessing officer of adding Rs. 8,36,965/ the action of the Ld. Assessing officer of adding Rs. 8,36,965/ the action of the Ld. Assessing officer of adding Rs. 8,36,965/- to the income of the appellant being deposits into the bank by to the income of the appellant being deposits into the bank by to the income of the appellant being deposits into the bank by treating the same as unexplained cash credit merely on treating the same as unexplained cash credit merely on treating the same as unexplained cash credit merely on surmises and conjectures. surmises and conjectures. 4. In the facts and circumstances of the case a In the facts and circumstances of the case and in law, the nd in law, the National Faceless Appeal Centre National Faceless Appeal Centre - CIT (A) has erred in CIT (A) has erred in confirming the action of the Ld. Assessing officer of adding Rs. confirming the action of the Ld. Assessing officer of adding Rs. confirming the action of the Ld. Assessing officer of adding Rs. 99, 30,973/- to the income of the appellant being credit entries to the income of the appellant being credit entries reflected in bank statement by treating the same as reflected in bank statement by treating the same as reflected in bank statement by treating the same as unexplained cash credits on ad hoc basis without considering plained cash credits on ad hoc basis without considering plained cash credits on ad hoc basis without considering the fact that above sum includes cheque reversals/returns and the fact that above sum includes cheque reversals/returns and the fact that above sum includes cheque reversals/returns and amounts transferred by directors for daily operations. amounts transferred by directors for daily operations. 5. In the facts and circumstances of the case and in law, the 5. In the facts and circumstances of the case and in law, the 5. In the facts and circumstances of the case and in law, the National Faceless National Faceless Appeal Centre - CIT (A) has erred in passing CIT (A) has erred in passing the order u/s 250 of the Income Tax Act, 1961, without the order u/s 250 of the Income Tax Act, 1961, without the order u/s 250 of the Income Tax Act, 1961, without providing an opportunity of personal hearing, thus violating the providing an opportunity of personal hearing, thus violating the providing an opportunity of personal hearing, thus violating the principles of natural justice. principles of natural justice. 2. The assessee company has not filed the return of income f The assessee company has not filed the return of income f The assessee company has not filed the return of income for 13. The Assessing Officer noticed from the assessment year 2012 the assessment year 2012-13. The Assessing Officer noticed from the NMS Module as well as ITS details that during the financial year the NMS Module as well as ITS details that during the financial year the NMS Module as well as ITS details that during the financial year 2011-12 relevant to assessment year 2012 12 relevant to assessment year 2012-13. The assessee has 13. The assessee has in Karur Vysya Bank deposited cash aggregating to Rs.6,55,000/ deposited cash aggregating to Rs.6,55,000/- in Karur Vysya Ltd. and also the assessee company was in receipt of contract Ltd. and also the assessee company was in receipt of contract Ltd. and also the assessee company was in receipt of contract . The Assessing Officer issued charges amounting to Rs.58,40,000/ charges amounting to Rs.58,40,000/-. The Assessing Officer issued a notice u/s 148 through ITBA on 22.03.2019. The assessee did not a notice u/s 148 through ITBA on 22.03.2019. The assessee did not a notice u/s 148 through ITBA on 22.03.2019. The assessee did not respond to the notices issued by the Assessing Officer and the respond to the notices issued by the Assessing Officer a respond to the notices issued by the Assessing Officer a
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notice issued through speed post was returned un-served. The notice issued through speed post was returned un notice issued through speed post was returned un Assessing Officer issued a final notice on 26.09.2019 informing the Assessing Officer issued a final notice on 26.09.2019 informing the Assessing Officer issued a final notice on 26.09.2019 informing the assessee that in the absence of any response the assessment would assessee that in the absence of any response the assessment would assessee that in the absence of any response the assessment would be completed u/s 144 of the Act. Since, the assessee did not be completed u/s 144 of the Act. Since, the assessee d be completed u/s 144 of the Act. Since, the assessee d respond to even the final notice the Assessing Officer proceeded to respond to even the final notice the Assessing Officer proceeded to respond to even the final notice the Assessing Officer proceeded to complete the assessment u/s 144 r.w.s. 147 of the Act. The complete the assessment u/s 144 r.w.s. 147 of the Act. The complete the assessment u/s 144 r.w.s. 147 of the Act. The Assessing Officer issued a notice u/s 133(6) of the Act to Karur Assessing Officer issued a notice u/s 133(6) of the Act to Karur Assessing Officer issued a notice u/s 133(6) of the Act to Karur Vysya Bank Ltd. and in response a copy of the account statement Vysya Bank Ltd. and in response a copy of the account sta Vysya Bank Ltd. and in response a copy of the account sta for the period of 01.04.2011 to 21.03.2012 was received. On going for the period of 01.04.2011 to 21.03.2012 was received. On for the period of 01.04.2011 to 21.03.2012 was received. On through the bank statement the Assessing Officer noticed that the through the bank statement the Assessing Officer noticed that the through the bank statement the Assessing Officer noticed that the assessee had deposited cash to the tune of Rs.8,36,965/- and also assessee had deposited cash to the tune of Rs.8,36,965/ assessee had deposited cash to the tune of Rs.8,36,965/ there was a credit to the tune of Rs.1,20,30,973/- in the bank there was a credit to the tune of Rs.1,20,30,973/ there was a credit to the tune of Rs.1,20,30,973/ account. The Assessing Officer issued a fresh notice u/s 142(1) account. The Assessing Officer issued a fresh notice u/s 142(1) account. The Assessing Officer issued a fresh notice u/s 142(1) dated 29.11.2019 calling on the assessee to explain under that : dated 29.11.2019 calling on the assessee to explain under that : dated 29.11.2019 calling on the assessee to explain under that :
i. why income from contract charges received of why income from contract charges received of why income from contract charges received of Rs.58,40,000/ Rs.58,40,000/- should not be estimated. ii. why cash deposit of Rs.8,36,9 why cash deposit of Rs.8,36,965/- made in the bank made in the bank account should not be treated as unexplained cash account should not be treated as unexplained cash account should not be treated as unexplained cash credit. credit. iii. why credit entries in the bank account should not be why credit entries in the bank account should not be why credit entries in the bank account should not be treated as income. treated as income.
The assessee did not file any Explanation to the notice u/s The assessee did not file any Explanation to the notice u/s The assessee did not file any Explanation to the notice u/s 142(1) of the Act. Accordingly the Ass 142(1) of the Act. Accordingly the Assessing Officer made an essing Officer made an estimation of income @ 20% of total contract charges of estimation of income @ 20% of total contract charges of estimation of income @ 20% of total contract charges of Rs.58,40,000/- to make an addition of Rs.11,68,000/ to make an addition of Rs.11,68,000/-. The AO to make an addition of Rs.11,68,000/
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further made addition u/s 68 of the Act towards cash deposits of further made addition u/s 68 of the Act towards cash deposits of further made addition u/s 68 of the Act towards cash deposits of Rs.8,36,965/- and also the credit entries in the ba and also the credit entries in the bank account and also the credit entries in the ba amounting to Rs.99,30,973/ amounting to Rs.99,30,973/-.
Aggrieved the assessee filed an appeal before the Ld. CIT(A). Aggrieved the assessee filed an appeal before the Ld. CIT(A). Aggrieved the assessee filed an appeal before the Ld. CIT(A).
Even before the Ld. CIT(A) the assessee did not respond to the Even before the Ld. CIT(A) the assessee did not respond to the Even before the Ld. CIT(A) the assessee did not respond to the various notices issued and therefore the Ld. CIT(A) proceeded to various notices issued and therefore the Ld. CIT(A) proceeded to various notices issued and therefore the Ld. CIT(A) proceeded to determine the appeal based on the materials available on record. al based on the materials available on record. al based on the materials available on record. With regard to the income issued @ 20% of total contract charges. With regard to the income issued @ 20% of total contract charges. With regard to the income issued @ 20% of total contract charges. The Ld. CIT(A) directed the Assessing Officer to give credit for the The Ld. CIT(A) directed the Assessing Officer to give credit for the The Ld. CIT(A) directed the Assessing Officer to give credit for the TDS amounting to Rs.58,400/ TDS amounting to Rs.58,400/-. With regard to the additions made . With regard to the additions made u/s 68 of the Act after verification of materials on record the Ld. the Act after verification of materials on record the Ld. the Act after verification of materials on record the Ld. CIT(A) gave relief to the extent of che CIT(A) gave relief to the extent of cheques returned.
Aggrieved the assessee is in appeal before the Tribunal. There Aggrieved the assessee is in appeal before the Tribunal. There Aggrieved the assessee is in appeal before the Tribunal. There is a delay of 75 days in filing the appeal before us the assessee has is a delay of 75 days in filing the appeal before us the assessee has is a delay of 75 days in filing the appeal before us the assessee has filed a letter stating that the order u/s 250 of the Act which was letter stating that the order u/s 250 of the Act which was letter stating that the order u/s 250 of the Act which was sent through e-mail was not received by the assessee since the e mail was not received by the assessee since the e mail was not received by the assessee since the e- mail ID was not operational. Subsequently, when the assessee mail ID was not operational. Subsequently, when the assessee mail ID was not operational. Subsequently, when the assessee checked the appeal proceedings in the e checked the appeal proceedings in the e-filing portal in July 2023 filing portal in July 2023 the assessee came to assessee came to know that the appellate order was passed on know that the appellate order was passed on 13.03.2023. The assessee, therefore, could not file the appeal within 13.03.2023. The assessee, therefore, could not file the appeal within 13.03.2023. The assessee, therefore, could not file the appeal within the statutory limitation period of 60 days and accordingly prayed the statutory limitation period of 60 days and accordingly pra the statutory limitation period of 60 days and accordingly pra for condonation of delay of 75 days in filing the appeal. for condonation of delay of 75 days in filing the appeal. for condonation of delay of 75 days in filing the appeal.
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Having heard the Having heard the Ld. Departmental Representative (DR) Ld. Departmental Representative (DR) and perused the material on record, we are of the view that there is a perused the material on record, we are of the view that there is a perused the material on record, we are of the view that there is a reasonable and sufficient cause for the delay in filing the appeal reasonable and sufficient cause for the delay in filing the appeal reasonable and sufficient cause for the delay in filing the appeal before the Tribunal. Therefore following the Hon’ble Supreme Court before the Tribunal. Therefore following the Hon’ble Supreme before the Tribunal. Therefore following the Hon’ble Supreme decision in the case of Collector, Land Acquisition Vs. MST.Katiji & decision in the case of Collector, Land Acquisition Vs. MST.Katiji & decision in the case of Collector, Land Acquisition Vs. MST.Katiji & Ors., (167 ITR 471) (SC) we condone the delay of Ors., (167 ITR 471) (SC) we condone the delay of 75 75 days in filing the appeal and admit the appeal for adjudication. the appeal and admit the appeal for adjudication.
Even before us, the Ld. AR of the assessee did not make any Even before us, the Ld. AR of the assessee did not make any Even before us, the Ld. AR of the assessee did not make any appearance in spite of sending hearing notices through e spite of sending hearing notices through e spite of sending hearing notices through e-mail.
The Ld. DR submitted that the assessee is in the habit of not submitted that the assessee is in the habit of not submitted that the assessee is in the habit of not appearing and submitting the relevant details and therefore, prayed appearing and submitting the relevant details and therefore, prayed appearing and submitting the relevant details and therefore, prayed that the order of the Ld. CIT(A) be upheld. that the order of the Ld. CIT(A) be upheld.
We have heard the parties and perused the materials available ard the parties and perused the materials available ard the parties and perused the materials available on record. The assessee had not filed any return of income. Based on record. The assessee had not filed any return of income on record. The assessee had not filed any return of income on the details in the ITS Portal on the details in the ITS Portal, the Assessing Officer had issued the he Assessing Officer had issued the notice u/s 148 of the Act. The Assessing Officer based on the bank notice u/s 148 of the Act. The Assessing Officer based on the bank notice u/s 148 of the Act. The Assessing Officer based on the bank statements obtained from Karur Vysya Bank Ltd. had noticed statements obtained from Karur Vysya Bank Ltd. statements obtained from Karur Vysya Bank Ltd. certain credits into the bank account of the assessee and had called certain credits into the bank account of the assessee and had called certain credits into the bank account of the assessee and had called for furnishing details in this regard. The assessee before the for furnishing details in this regard. The assessee before the for furnishing details in this regard. The assessee before the Assessing Officer neither responded notices issued u/s 148 of the Assessing Officer neither responded notices issued u/s 148 of the Assessing Officer neither responded notices issued u/s 148 of the Act nor subsequent notice calling for details u/s 142(1) of the Act. Act nor subsequent notice calling for details u/s 142(1) of the Act. Act nor subsequent notice calling for details u/s 142(1) of the Act. We also notice that the assessee did not appear before the Ld. We also notice that the assessee did not appear before the Ld. We also notice that the assessee did not appear before the Ld. CIT(A) who has concluded the appellate proceedings ex-parte based CIT(A) who has concluded the appellate proceedings ex CIT(A) who has concluded the appellate proceedings ex
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on the materials available on records. Given this in the interest of on the materials available on records. Given this in the on the materials available on records. Given this in the natural justice and fair play we are of the considered view that the natural justice and fair play we are of the considered view that the natural justice and fair play we are of the considered view that the assessee be given one final opportunity to present the case on assessee be given one final opportunity to present the case on assessee be given one final opportunity to present the case on merits. Accordingly we remit the issue back to the Assessing Officer merits. Accordingly we remit the issue back to the Assessing Officer merits. Accordingly we remit the issue back to the Assessing Officer for de novo verification calling for necess for de novo verification calling for necessary details as may be ary details as may be required. The assessee is directed to furnish the required required. The assessee is directed to furnish the required required. The assessee is directed to furnish the required information as may be called for without seeking any adjournments information as may be called for without seeking any adjournments information as may be called for without seeking any adjournments and cooperate with the proceedings. It is order accordingly. with the proceedings. It is order accordingly. with the proceedings. It is order accordingly.
In the result, the appeal of the assessee is In the result, the appeal of the assessee is In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on nounced in the open Court on 29/12/2023. /12/2023.
Sd/- Sd/ Sd/- (AMIT SHUKLA AMIT SHUKLA) (PADMAVATHY S. PADMAVATHY S.) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 29/12/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, BY ORDER, //True Copy// (Assistant Registrar) (Assistant Registrar) ITAT, Mumbai ITAT, Mumbai
