KAMLA DEVI DEVICHAND SHAH,MUMBAI vs. ITO-21(2)(1), MUMBAI

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ITA 1361/MUM/2019Status: DisposedITAT Mumbai20 May 2020AY 2008-094 pages
AI SummaryRemanded

What did the Tribunal hold?

The tribunal held that while appellate authorities can dismiss appeals for non-appearance, it should be done on merits based on available records. Since the CIT(A) did not discuss the issues on merits, the case was set aside.

What were the facts?

The assessee's appeal against the CIT(A)'s ex-parte order for AY 2008-09 was dismissed by the tribunal. The CIT(A) had dismissed the assessee's appeal for non-appearance, without discussing the merits of the case.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal ex-parte without considering the grounds of appeal on merits. Whether the addition of Rs. 3,00,000/- as bogus Long Term Capital Gain was justified.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147,Section 68

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “H”, BENCH MUMBAI

Before: SHRI G. MANJUNATHA & SHRI RAVISH SOOD

For Respondent: Shri R.Bhoopathi, DR
Hearing: 25/02/2020Pronounced: 20/05/2020

Date of Hearing 25/02/2020 Date of Pronouncement 20/05/2020 आदेश आदेश / O R D E R आदेश आदेश PER G.MANJUNATHA (A.M):

This appeal filed by the assessee is directed against, the order of the Ld. Commissioner of Income Tax (Appeals)–48, Mumbai, dated 26/11/2018 and it pertains to Assessment Year 2008-09.

2.

The assessee has raised the following grounds of appeal:

1. Natural Justice-The Ld. Commissioner of Income Tax (Appeal)-48, Mumbai, erred in not giving sufficient, proper and adequate opportunity of being heard to the Appellant while confirming the order u/s 143(3) r.w.s. 147 of the Act passed by the Ld. AO. It is submitted that in the facts and the circumstances of the case, and in law, the assessment so framed be held as bad and illegal, as the same is framed in breach of the principles of natural justice. On the fact and circumstances of the case it is submitted that allt he communications of the department were had been received by the earlier counsel ‘Mr. K.C.Rathi of the appellant, he was the only person who was looking into the appellant’s taxation matter and kept all the documents. The earlier counsel of the appellant has been expired, hence, no documents were submitted before the CIT(A).

2. On the facts and circumstances of the case and in law, the Ld.CIT(A) legally erred in confirming the order u/s 143(3) r.w.s. 147 of the Act passed by AO. 2.1 On the facts and circumstances of the case and in law the Ld.CIT(A) confirmed the decision of the AO, in respect of addition of Rs.3,00,000/- as bogus Long Term Capital Gain u/s 68 of the Income Tax Act, 1961. 2.2 On the facts and circumstances of the case and in law the Ld.CIT(A) confirmed the decision of the AO in not proving the sale of MMTC shares inAY 2008-09 after making enquiry from National Stock Exchange and Interconnected Stock Exchange of India Ltd. ((ISE) dated 05/12/2015. The Ld.CIT erred in confirming the decision of AO of decision without determining credit value of Rs.3,00,000/- in the books of accounts of the appellant.

3. The brief facts of the case are that the assessee is an individual, derives income from share trading and income from other sources etc., filed her return of income for AY 2008-09 on 30/07/2008, declaring total income of Rs.1,43,235/-. The assessment has been reopened on the basis of information gathered during the survey action u/s 133A of the I.T.Act, 1961, in the premise of Shri Kamla Kishore Rathi and the assessment has been completed u/s 143(3) r.w.s. 147 of the Act, and determined total income at Rs.4,43,240/- by inter-alia making additions towards unexplained cash credit u/s 68 of the I.T.Act, 1961 for Rs. 3 Lacs, in respect of sale proceeds of shares. The assessee carried the matter in appeal before the Ld.CIT(A), but could not appear to justify her case. Therefore, the Ld.CIT(A) has dismissed appeal filed by the assesse ex-parte, on the basis of information available on record. Aggrieved by the Ld.CIT(A) order, the assessee is in appeal before us.

4.

None appeared for the assessee. We have heard the Ld. DR and perused the materials available on record. We find that the Ld.CIT(A) has dismissed appeal filed by the assessee in-limine for non appearance of the assessee for hearing on the dates fixed for disposal of appeal as noted by the Ld.CIT(A) in para 2.1 of his appellate order. As per the Ld.CIT(A), although four opportunities of hearing was given to the assesee, but the assessee except in one date, neither appeared, nor sought adjournment. Therefore, the Ld.CIT(A) disposed-off of the appeal in-limine, but such appeal has been disposed of without discussing the issues on merits, in light of various grounds of appeal taken by the assessee in its memorandum of appeal. No doubt, it is the duty of the person, who filed appeal, is to go before the authorities and present its case for speedy disposal of appeal. Further, if the person, who filed appeal, does not appeared before the authorities on the dates fixed for disposal of appeal, then the appellate authorities are at liberty to dispose appeal, but such appeals should be disposed off, on merits on the basis of materials available on record. In this case, neither the assessee appeared before the Ld.CIT(A) to present its case, nor the Ld.CIT(A) disposed of the appeal on merits. Therefore, we are of the considered view that in order to give one more opportunity to the assessee, the issue has been set aside to the file of the Ld.CIT(A) and direct him to decide the issue on merits in accordance with law. Needless to say, the assessee shall go before the Ld.CIT(A) and present hers case with necessary evidences.

5.

In the result, appeal filed by the assessee is allowed for statistical purpose.

Order pronounced in the open court on this 20/05/2020

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