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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI RAJENDRA & AMARJIT SINGH]
Assessee by: Shri V.D. Parmar (AR) Department by: Shri Abani Kanta Nayak(DR) सुनवाई की तारीख / Date of Hearing: 15.09.2017 घोषणा की तारीख /Date of Pronouncement: 18.09.2017 आदेश / O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the above mentioned appeals against the different order passed by Commissioner of Income Tax (Appeals)-31 Mumbai relevant to the assessment year 2007-08.
The assessee has raised the following grounds:-
“1. On the facts and circumstances of the case and in law the Ld. CIT(A) erred in confirming addition of Rs.29,00,000/- on account of cash credits.
2. On facts and circumstances of the case and in law the Ld. CIT(A) passed an exparte appeal order without giving adequate opportunity of being heard and against principle of natural justice.
3. On facts and circumstances of the case and in law the Ld. CIT(A) erred in holding that identity of creditors in respect of Shri Mohd. Mobin Rayeen and Mrs. Hinal Kumari remained unestablished in Mohamed Aslam Rayain spite of the fact that the amounts received from these partie4s are by cheques and received by clearing through proper banking channels. On facts and circumstances of the case and in law the Ld. CIT(A) erred in holding that the amount received from Mr. Arvind Kumar remained unestablished in spite of the facts that the said amount is received by cheques and through normal banking channels and confirmation letter giving PAN No etc of the party was filed in course of assessment proceedings On facts and circumstances of the case and in law the Ld, CIT(A) erred in passing exparte appeal order in spite of the fats that appellant was totally in dark about none representation of case by his advocate before CIT(A).”
The brief facts of the case are that the assessee filed his return of income on 31.10.2007 declaring total income to the tune of Rs.3,84,090/- relevant to the A.Y. 2007-08. The case of the assessee was covered under Tax Audit u/s 44AB. Return was processed u/s 143(1) of the I.T. Act, 1961 accepting the returned income. Thereafter, the case was selected for scrutiny and notice u/s 143(2) dated 15.09.2008 was issued and served upon the assessee on 17.09.2008. Notice u/s 142(1) dated 08.05.2008 was issued and served upon the assessee. The assessee is an individual and derived his income from the business. The assessee is the proprietor of the M/s Amir Trading Company engaged in the trading of old and used plant and machinery, spares, metal scrap etc., The assessee has shown the sundry creditors of Rs.48,77,564/- as on 31.03.2007. The notices u/s133(6) of the I.T. Act, 1961 were issued to Mohd. Mobin Rayeen, Arvind Kumar & Hinal Kumari who did not receive the notice therefore, the transaction could not be confirmed from them and accordingly an amount of Rs.29.00,000/- was being treated as unexplained cash credits u/s 68 of the I.T. Act and was added to the income of the assessee. The some expenses were also disallowed and the income of the assessee was assessed to the tune of Rs.33,43,010/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who dismissed the appeal by virtue of order dated 30.11.2010, hence, the assessee has filed the present appeal before us.
Mohamed Aslam Rayain ISSUE. NO.1: 4. The assessee has moved an application for condonation of delay. We have heard to arguments advanced by the learned representatives of the parties and perused the records. The assessee took the plea that his regular advocate did not advise him to file an appeal but subsequently upon the advice of Mr. Aslam Ryain advocate he filed an appeal before the ITAT Bench Mumbai. The advocate Mr. Mayank M. Gandhi did not appear before the CIT(A) and the Ld. CIT(A) passed the order exparte and this fact was known to him. The delay was not intentional rather it happens on account of failure advise and on account of the non- pursuing by Mr. Mayank M Gandhi therefore, the delay is liable to be condoned. However, on the other hand the Ld. Representative of the department has refuted the said contention. Order dated 30.11.2010 perused which has been passed in the absence of the representative of the assessee. It seems that the advocate Shri Mayank M. Gandhi did not appear before the CIT(A). After the decision of appeal, Mr. Mayank M. Gandhi failed to appear before any authority. It seems that the advocate was not handling the case properly and in the said circumstances it may also happened that the advocate did not advise the assessee properly specifically in the said circumstances when the assessee has filed the affidavit in this regard. Moreover, we observed that the declining the application of condonation of delay would tantamount to miscarriage of justice to the assessee being the order in question has been passed against him against exparte and assessee did not get opportunity to represent his case before authority. The assessee failed to represent his case before the CIT(A). Technicalities should not be hurdle to achieve the goal of the justice. In view of the case cited as N. Balakrishnan Vs. M. Krishnamurthy 1998 7 SCC 123 & Shankarrao Vs. Chandrasenkunwar in (1987) Supp SCC 338, & Surya General Traders Vs. CTO (2003) 133 TC 388, 389, (AP). We are of the view that the delay is liable to be condoned hence, we order accordingly. However, Mohamed Aslam Rayain the assessee did not argue the case on merits but took the plea that the CIT(A) has passed the order dated 30.11.2010 in question exparte wrongly and illegaly therefore, the assessee should be allowed to represent the matter before the CIT(A) in the interest of justice. However, on the other hand, Ld. Representative of the department has refuted the said contentions. Order dated 30.11.2010 perused and the said order has been passed against the exparte. No opportunity of being heard was given to the assessee being the order was exparte. Since, the assessee failed to represent the matter before the CIT(A) therefore, we are of the view that the assessee should be granted an opportunity of being heard before the CIT(A) to represent his matter in the interest of justice. In view of the said circumstances, we set aside the order dated 30.11.2010 passed by the CIT(A) in question and restored the matter before the CIT(A) to decide the matter afresh by giving an opportunity of being heard to the assessee in order in accordance with law.
This is an appeal against the order dated 23.06.2014 passed by the Commissioner of Income Tax Appeal-31, Mumbai relevant to the A.Y. 2007-08 wherein the penalty levied by the Assessing Officer has been confirmed by the CIT(A). While deciding the appeal Bearing No. 3400/Mum/2014 we set aside the quantum therefore in the said circumstances the penalty has no leg to stand. Accordingly, we delete the penalty and allowed the appeal of the assessee.
Mohamed Aslam Rayain
In the result, the appeal of the assessee is allowed.