KINCHIT PRAVINCHANDRA DOSHI,MUMBAI vs. ITO 25(2)(1), MUMBAI

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ITA 4406/MUM/2013Status: DisposedITAT Mumbai06 June 2018AY 2008-096 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal allowed the appeals for statistical purposes, directing the assessee to appear before the Assessing Officer within one month to explain the bank deposits. The penalty appeal was also remanded as it was dependent on the quantum addition.

What were the facts?

The assessee did not appear before the Assessing Officer, leading to an ex-parte assessment under section 144. The Assessing Officer made additions under section 68 based on bank statement entries. The assessee claimed notices were not served and the assessment violated natural justice.

What were the issues?

Whether the ex-parte assessment and additions under section 68 were valid without proper opportunity to the assessee. Whether the penalty under section 271(1)(c) was justified.

Which sections of the Income-tax Act were involved?

Section 144,Section 143(2),Section 142(1),Section 68,Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCHES “H”, MUMBAI

Before: Shri JOGINDER SINGH, & Shri G. MANJUNATHA

For Appellant: Shri Ram Tiwari-DR
Pronounced: 06/06/2018

आदेश / O R D E R

Per Joginder Singh (Judicial Member) These two appeals are by the assessee against the impugned orders dated 21/03/2013 & 22/03/2013 of the Ld. First Appellate Authority, Mumbai.

2.

During hearing, none was present for the assessee, in spite of receipt of notice on 28/01/2014. These appeals were filed on 31/05/2013 and on 25/03/2015, nobody appeared and the appeals are adjourned to 24/09/2015. Registered AD notices were issued. On 24/09/2015, the assessee sought adjournment, which was granted for 12/04/2016. On 12/04/2016 again at the request of the assessee, the appeals were adjourned. Again, on 17/11/2016 and 13/04/2017, the appeals were adjourned at the request of the assessee. On 23/08/2017 again at the request of the assessee, the appeals were adjourned. On 01/05/2018 and 06/06/2018 i.e. today, nobody appeared for the assessee, therefore, we have no option but to proceed ex-parte, qua the assessee and dispose of these appeals on the basis of material available before the Ld. Assessing Officer, nobody was present and ultimately, the assessment was framed under section 144 of the Act. Therefore, no lenient view may be taken against the assessee.

1.

2.1. We have considered the submissions of Ld. DR and perused the material available on record. The facts, in brief, are that the assessee is an individual deriving income from other sources, declared income of Rs.1,17,310/-.

Since, the case of the assessee was selected for scrutiny, therefore notice under section 143(2) and 142(1) were issued to the assessee. As per the assessee, during Financial Year 2010-11, the residential building was demolished and all the residents vacated their premises including the assessee. As claimed in the statement of facts, notices were never served upon the assessee. It has been further mentioned that the Ld. Assessing Officer made the addition on the basis of bank statement obtained from the saving bank account of the assessee and thus the assessment so framed is in violation of principle of natural justice and consequent addition under section 68 was find that the assessment was framed under section 144 of the Act as the assessee did not appear before the Ld. Assessing Officer. Considering the totality of facts, we are of the view that one more opportunity may be given to the assessee because even as per mandate of Article-265 of Constitution of India, only due taxes has to be levied/collected. At the same time, the interest of assessee as well as of the Revenue has to be safeguarded. The assessee is directed to appear before the Ld. Assessing Officer within one month from the receipt of this order and explain the factual matrix along with source of the amount lying in the bank account of the assessee, which was added as income under section 68 of the Act as unexplained cash credit. The assessee be given opportunity of being heard with further liberty to furnish necessary evidence, if any, to substantiate his claim. The case of the assessee may be taken up, when the assessee approaches the office of the Ld. Assessing Officer, as directed above or on any convenient date mutually agreed upon between the the assessee is allowed for statistical purposes.

3.

So far as, the appeal in is concerned, it is an penalty appeal under section 271(1)(c) of the Act. Since, we have remanded the quantum appeal back to the file of the Ld. Assessing Officer, therefore, in all fairness, the penalty appeal also needs to be sent to the file of the Ld. Assessing Officer as the same will be dependent upon the outcome of the quantum addition. Thus, both the appeals of the assessee are allowed for statistical purposes only.

Finally, the appeal of the assessee are allowed for statistical purposes only.

This Order was pronounced in the open court in the presence of ld. DR at the conclusion of the hearing on 06/06/2018.

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