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Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC-I”, MUMBAI
Before: SHRI SAKTIJIT DEY (JM)
This is an appeal by the assessee against order dated 01.03.2018 of learned Commissioner of Income Tax (Appeals)–88, Mumbai for the assessment year 2008-09.
Grounds raised by the assessee are as under:- “1) Under the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in confirming the action of the AO for reopening of assessment u/s 147 and the same being bad In law the assessment order passed in consequence to such reopening being also bad In law the assessment should be annulled.
2) Under the facts and circumstances of the case and in law, the Ld. CIT(A) has erred In confirming the addition made by the AO with 3) Under the facts and circumstances of the case and in law, the Ld- CIT(A) has erred in confirming the addition of Rs. 12,00,000/- made by the AO on account of stamp duty valuation at PS. 12,00,000/- as against actual payment of Bs. 11,00,000/- received by the appellant.
4) Under the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in confirming an addition of Rs.7,62,250/- being advances given by the appellant to two parties without appreciating the fact that the same were already shown in the balance sheet under the broad head sundry creditors as against under the broad head loans and advances. Thus addition made is without appreciating the facts on record should be deleted.
5) under the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the addition of 1,36,385/- being difference in total amount of sundry creditors as per balance sheet and details available on record without appreciating the facts that there was no such difference in total sundry creditors as envisaged and hence addition made should be deleted.”
At the outset, the learned Authorised Representative of the assessee, on instructions, did not press Ground No.
Accordingly, Ground No. 1 is dismissed as not pressed. In Ground No. 2 to 4, the assessee has challenged various additions/disallowances made by the Assessing Officer (AO) and confirmed by learned Commissioner (Appeals).
Briefly the facts are the assessee is an individual engaged in the business of lorry hire for removal refuges. For the assessment year under dispute, the assessee had filed his return of income declaring total income of Rs. 4,05,950/.
3 MUM/2019 Assessment Year: 2008-09 Assessment in case of the assessee was completed under section 143(3) of the Act vide order dated 20.12.2010 determining the total income at Rs. 5,93,450/. Subsequently, the Assessing Officer (AO) while verifying the profit and loss account and other materials on record having found that the assessee has claimed excess depreciation, reopened the assessment under section 147 of the Act. As alleged by the AO, In response to notice issued under section 148 as well as under section 142(1) of the Act, the assessee did not appear in spite of several opportunities being granted. Therefore, the AO proceeded to complete the assessment to the best of his judgment by invoking the provisions of section 144 of the Act. While doing so, he made the following additions. Disallowance of depreciation : Rs. 3,63,388/- Addition of short term capital gain u/s 50C: Rs 1,00,000/- Advance given to parties : Rs. 7,62,250/- Difference in sundry creditors: Rs. 1,36,835/-
Against the assessment order so passed, assessee preferred appeal before learned Commissioner (Appeals). However, learned Commissioner (Appeals) also sustained the additions made by the AO.
I have considered the rival submissions and perused the material on record. The basic grievance of the assessee, as articulated by the learned Authorised representative of the assessee is, both the AO and learned Commissioner (Appeals) have neither given proper opportunity to the assessee to explain the doubts entertained by them nor the submissions made and documents filed have been properly verified. He submitted, though, before learned Commissioner (Appeals), the authorized representative of the assessee appeared from time to time and furnished various evidences in support of assessee’s claim, however, neither the presence of the authorized representative has been marked nor the evidences furnished properly evaluated. Thus, he has submitted, the issues relating to the various additions made should be restored back to the AO for fresh adjudication. Having 4 MUM/2019 Assessment Year: 2008-09 considered the submissions of the parties, I find that the AO has completed the assessment ex-parte under section 144 of the Act. Thus, it is evident, for whatever may be the reason, the assessee could not appear before the AO and explain on various issues. It appears from record, due to absence of the assessee and non–furnishing of evidences, the AO has made the additions mostly on presumption and estimate basis. Insofar as the proceedings before learned First Appellate Authority is concerned, it appears from the impugned order of learned Commissioner (Appeals), the presence of the authorized representative has not been marked. Further, though, learned Commissioner (Appeals) has referred to a written submissions filed on behalf of the assessee, however, he has not dealt with the submissions of the assessee with proper reasoning. It is evident, learned Commissioner (Appeals) has primarily relied upon the observations of the AO and has sustained the additions by alleging that the assessee has failed to furnish adequate evidence. Considering the overall facts and circumstances of the case I am of the view that the issues raised in relation to various additions made by the AO and sustained by learned Commissioner (Appeals) requires fresh consideration. Accordingly, I set aside the impugned order of learned Commissioner (Appeals) and restored the issues raised in Ground No. 2 to 5 to the AO for afresh adjudication after due opportunity of being heard to the assessee.
In the result, appeal is partly allowed for statistical purposes. Order pronounced in the open court on 25th June, 2021.