MOHD. AYUB MUSTAFA HUSSAIN SHAIKH,MUMBAI vs. INCOME TAX OFFICER, WARD 4 (1), THANE

This appeal by assessee under section 253 of Income tax Act is directed against the order of Commissioner (Appeals)-3, Thane, dated 15th September 2017 for assessment year 2009-10, which in turn arises from the assessment order passed under section 144 read with section 147 dated 20th March 2015. The assessee has raised following grounds of appeal; (1) On the facts and circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the order passed under section 144 read with section 147 of the Income tax Act, which is against the principle of natural Justice. (2) On the facts and circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the addition of Rs.63,00,000/- being unexplained investment is without considering the Mohd Ayub Mustafa Hussain Shaikh

Brief facts of the case are that assessee has not filed return of income for assessment year 2009-10. The assessing officer issued notice under section 148 on the basis of information received from ITO Ward-15(3)(3) dated 31st January 2013, that assessee has purchased immovable property valued at Rs. 30 lakhs and more. Therefore, notice under section 143(2) was issued to the assessee to attend the proceeding on 05 November 2014 and again on 26th November 2014, however, neither the assessee attended the proceedings before assessing officer not furnished any written submission. The assessing officer issued notice under section 133(6) to the Sub- Registrar on 5th February 2014 to furnish the copy of the sale deed. On the basis of information furnished by Sub-Registrar, in response to notice under section 133(6), the assessing officer came to know that assessee purchased two properties for Rs. 40 lakhs and 23 lakhs on 22nd August 2008. Since, the assessee neither appeared before the assessing officer nor furnished any explanation the assessing officer therefore completed the assessment under section 144 read with section 147 of the Act. The assessing officer while framing assessment order made the addition of Rs. 63 lakhs as unexplained investment. On appeal before Commissioner (Appeals) the action of assessing officer was confirmed. Thus, further aggrieved by the order of Commissioner (Appeals) the assessee has filed present appeal before us.

We have heard learned AR of the assessee and learned DR for the revenue and perused the material available on record. At the outset of the hearing the learned AR for the assessee submits that he is not pressing ground No.1. Considering the submission of learned AR of the assessee the ground No.1 of the appeal is dismissed as not pressed. - Mohd Ayub Mustafa Hussain Shaikh

Ground No.2 relates to addition of Rs. 63 lakhs as unexplained investment. The learned AR of the assessee submits that the assessee has already disclosed the investment in his partnership firm namely Best Developers. The learned AR further submits that the assessee could not appear before the assessing officer as well as before first appellate authority. The reasons for non-appearance before the assessing officer were that assessee has shifted his residence from Thane to his Home Town in Sant Kabir Nagar, Uttar Pradesh. The business of the partnership firm was closedown because of dispute among the partners of the firm. The notice of appeal before Commissioner (Appeals) was received for 14th August 2017. The assessee appointed Shri Sanjay Jain CA to represent him before the appellate authority. Shri Sanjay Jain CA sought adjournment on 24th August 2017 and the appeal was adjourned for 14th September 2017. On 14th September 2017 his representative could not attend the hearing due to his ill health and attended the hearing on 15th September, on the day he was informed that appeal has been dismissed. Before the lower authorities the assessee could not furnish certain relevant document during the assessment as well as before first appellate estates. The assessee has filed the documentary evidences in the form of additional evidence. The learned AR submits that the evidences furnished by assessee are relevant for proper adjudication of the issues involved in the present appeal. The learned AR prayed that matter may be restored to the file of assessing officer for passing the assessment order afresh after considering the submission of the assessee and the documentary evidences furnished by assessee.

On the contrary the learned DR for the revenue supported the order of authorities below. The learned DR further submits that the assessee did not appear before the lower authority intentionally and deliberately. The assessee has no case on merit and the investment in properties which has 3 Mohd Ayub Mustafa Hussain Shaikh