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Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI SANDEEP SINGH KARHAIL
These appeals by the assessee are directed against separate orders passed by the Ld. Commissioner of Income-tax (Appeals)- National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2011-12, 2012-13, 2013-14 and 2016-17 respectively. In these appeals, common issue in dispute are involved and therefore, same were heard together and disposed off by way of this consolidated order for convenience and avoid repetition of facts.
Mr. Ramesh Madan Patel 2 3657, 3656, 3642, 3641/M/2023 ITA Nos. 3643, 3657, 3656, 3642, 3641/M/2023
At the outset, the Ld. counsel for the assessee submitted that At the outset, the Ld. counsel for the assessee submitted that At the outset, the Ld. counsel for the assessee submitted that the Ld. CIT(A) has passed the impug the Ld. CIT(A) has passed the impugned orders ex ex-parte qua the assessee without taking into consideration submission of the assessee without taking into consideration submission of the assessee without taking into consideration submission of the assessee on various grounds raised. assessee on various grounds raised. She submitted that during the She submitted that during the period of appeal before the Ld. CIT(A) period of appeal before the Ld. CIT(A), the assessee was in jail in , the assessee was in jail in relation to some criminal proceed relation to some criminal proceedings initiated against him and initiated against him and therefore, he could not produce therefore, he could not produce the books of accounts and other the books of accounts and other documents before the lower authorities documents before the lower authorities, which resulted in resulted in ex-parte order by the Assessing Officer by the Assessing Officer as well as by the Ld. CIT(A). the Ld. CIT(A). The Ld counsel requested that one counsel requested that one more opportunity should be provided to more opportunity should be provided to the assessee to represent before the lower authorities. the assessee to represent before the lower authorities. the assessee to represent before the lower authorities.
We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. We find that the Ld. CIT(A) has issued relevant material on record. We find that the Ld. CIT(A) has issued relevant material on record. We find that the Ld. CIT(A) has issued various notices on the e various notices on the e-mail ID provided on the income n the income-tax portal. However, it was submitted by the assessee that due to certain However, it was submitted by the assessee that due to certain However, it was submitted by the assessee that due to certain restrictions/prohibitions imposed for entry in /prohibitions imposed for entry in properties where properties where books of accounts were kept books of accounts were kept and the assessee being in jail , being in jail , could not produce the relev not produce the relevant documents to substantiate its claim. The ant documents to substantiate its claim. The Ld. CIT(A) after considering the submission the assessee dismissed Ld. CIT(A) after considering the submission the assessee dismissed Ld. CIT(A) after considering the submission the assessee dismissed the appeal ex-parte in all the assessment years. For ready reference, in all the assessment years. For ready reference, in all the assessment years. For ready reference, the finding of the Ld. the finding of the Ld. CIT(A) in the assessment year 2011 in the assessment year 2011-12 is reproduced as under: as under:
“7.3 Firstly, it is noticed that the order of Hon'ble High Court of Firstly, it is noticed that the order of Hon'ble High Court of Firstly, it is noticed that the order of Hon'ble High Court of Bombay has not, per se, created any embargo on the appellant to Bombay has not, per se, created any embargo on the appellant to Bombay has not, per se, created any embargo on the appellant to reach out to the documents which are allegedly kept in the disputed reach out to the documents which are allegedly kept in the disputed reach out to the documents which are allegedly kept in the disputed premises at No. 87, Krishna Building, Opp. HP Petrol Pump, SV premises at No. 87, Krishna Building, Opp. HP Petrol Pump, SV premises at No. 87, Krishna Building, Opp. HP Petrol Pump, SV Road,
Mr. Ramesh Madan Patel 3 3657, 3656, 3642, 3641/M/2023 ITA Nos. 3643, 3657, 3656, 3642, 3641/M/2023
Old Khar, Mumbai. No evidence is brought on record that the Old Khar, Mumbai. No evidence is brought on record that the Old Khar, Mumbai. No evidence is brought on record that the records/documents records/documents records/documents required required required for for for assessment assessment assessment proceedings proceedings proceedings and and and appellant proceedings for the year under consideration, were kept in appellant proceedings for the year under consideration, were kept in appellant proceedings for the year under consideration, were kept in the said premises. Under the circumstances, the appellant's co the said premises. Under the circumstances, the appellant's co the said premises. Under the circumstances, the appellant's contention of him illegally getting evacuated and him not able to get hold of the of him illegally getting evacuated and him not able to get hold of the of him illegally getting evacuated and him not able to get hold of the documents is devoid of merits. Therefore, the appellant's argument documents is devoid of merits. Therefore, the appellant's argument documents is devoid of merits. Therefore, the appellant's argument that the documents pertaining to the scrutiny assessment were out of that the documents pertaining to the scrutiny assessment were out of that the documents pertaining to the scrutiny assessment were out of reach due to some dispute are devoid of reach due to some dispute are devoid of merit and there is no merit and there is no documentary evidence to show that the appellant genuinely suffered documentary evidence to show that the appellant genuinely suffered documentary evidence to show that the appellant genuinely suffered from circumstances beyond his control which prevented him from from circumstances beyond his control which prevented him from from circumstances beyond his control which prevented him from furnishing books of accounts or any other documentary evidences in furnishing books of accounts or any other documentary evidences in furnishing books of accounts or any other documentary evidences in support of his claim. It is also noti support of his claim. It is also noticed that no evidence regarding the ced that no evidence regarding the appellant's appellant's appellant's prayer prayer prayer to to to Hon'ble Hon'ble Hon'ble High High High Court Court Court for for for obtaining obtaining obtaining documents/copies of documents claimed to be at the said premises is documents/copies of documents claimed to be at the said premises is documents/copies of documents claimed to be at the said premises is submitted before this appellate authority. In the absence of submitted before this appellate authority. In the absence of submitted before this appellate authority. In the absence of substantiating evidence supporting th substantiating evidence supporting the ground of appeal, Ground No.2 e ground of appeal, Ground No.2 is not tenable and the same is dismissed. is not tenable and the same is dismissed.” 3.1 Further in assessment year 2011 Further in assessment year 2011-12, the Ld. CIT(A) dismissed 12, the Ld. CIT(A) dismissed the ground raised as under: the ground raised as under:
“8.1. It is seen from the records that the disallowance of deduction 8.1. It is seen from the records that the disallowance of deduction 8.1. It is seen from the records that the disallowance of deduction claimed u/s.57 of claimed u/s.57 of the Act to the tune of Rs.27,72,097/- was made was made in the assessment order for the in the assessment order for the A.Y.2011-12 in the previous 12 in the previous reassessment proceedings passed u/s.144 rws 147 dated reassessment proceedings passed u/s.144 rws 147 dated reassessment proceedings passed u/s.144 rws 147 dated 21-12- 2016. Apparently, no such disallowance has been made in the 2016. Apparently, no such disallowance has been made in the 2016. Apparently, no such disallowance has been made in the instant assessment order whic instant assessment order which is the subject matter of appeal. h is the subject matter of appeal. Although, the first Appellate Authority is invested with very wide Although, the first Appellate Authority is invested with very wide Although, the first Appellate Authority is invested with very wide powers, these powers are circumscribed by the assessment order powers, these powers are circumscribed by the assessment order powers, these powers are circumscribed by the assessment order and the matters arising thereof. There is no provision to go beyond and the matters arising thereof. There is no provision to go beyond and the matters arising thereof. There is no provision to go beyond the issues other than t the issues other than the ones deliberated in the assessment order. he ones deliberated in the assessment order. In the present case, only addition made in the assessment order is In the present case, only addition made in the assessment order is In the present case, only addition made in the assessment order is Rs.1,74,13,022/ Rs.1,74,13,022/- being being 8% 8% of the of the total total credit entries credit entries at at Rs.21,76,62,778/ Rs.21,76,62,778/-. Under the circumstances, grounds praying to . Under the circumstances, grounds praying to allow other disallowance allow other disallowances not made in the subject assessment s not made in the subject assessment order cannot be acceded to. Therefore, this ground of appeal is order cannot be acceded to. Therefore, this ground of appeal is order cannot be acceded to. Therefore, this ground of appeal is dismissed. Ground No.4 is regarding initiation of penalty proceedings Ground No.4 is regarding initiation of penalty proceedings Ground No.4 is regarding initiation of penalty proceedings u/s.271(1)(c) of the Act by the Assessing Officer. In this regard, u/s.271(1)(c) of the Act by the Assessing Officer. In this regard, u/s.271(1)(c) of the Act by the Assessing Officer. In this regard, after perusing the after perusing the records it is opined that the penalty proceedings records it is opined that the penalty proceedings u/s.271(1)(c) of the Act have rightly and unequivocally invoked by u/s.271(1)(c) of the Act have rightly and unequivocally invoked by u/s.271(1)(c) of the Act have rightly and unequivocally invoked by the Assessing Officer and it does not warrant any interference. the Assessing Officer and it does not warrant any interference. the Assessing Officer and it does not warrant any interference. Hence, ground No.4 is dismissed. Hence, ground No.4 is dismissed.” 3.2 Since, the Ld. CIT(A) has dismissed Since, the Ld. CIT(A) has dismissed the grounds raised in the grounds raised in above appeals mainly for the reason of not submitting any evidence above appeals mainly for the reason of not submitting any evidence above appeals mainly for the reason of not submitting any evidence
Mr. Ramesh Madan Patel 4 3657, 3656, 3642, 3641/M/2023 ITA Nos. 3643, 3657, 3656, 3642, 3641/M/2023 in support of any prayer made before the Hon’ble High Court for in support of any prayer made before the Hon’ble High Court for in support of any prayer made before the Hon’ble High Court for removing prohibitions/ restrictions for access to the concerned removing prohibitions/ restrictions for access to the concerned removing prohibitions/ restrictions for access to the concerned premises where books of account books of account or any other documentary y other documentary evidence were stored. were stored. However, before us, the Ld. However, before us, the Ld. Counsel for the assessee submitted that assessee is willing to produce all the assessee submitted that assessee is willing to produce all the assessee submitted that assessee is willing to produce all the documentary evidence if matter is restored back to the file of the Ld. documentary evidence if matter is restored back to the documentary evidence if matter is restored back to the CIT(A). Accordingly, looking to the looking to the prayer of the assessee and prayer of the assessee and in the interest of substantial interest of substantial justice, we feel it appropriate we feel it appropriate to provide one more opportunity to the assessee and more opportunity to the assessee and restore the matter restore the matter involved in all the appeals back to the file of the Ld. CIT(A) back to the file of the Ld. CIT(A) for deciding afresh for deciding afresh after providing adequate opportunity of being heard to the assessee ing adequate opportunity of being heard to the assessee ing adequate opportunity of being heard to the assessee. The grounds raised by the assessee are accordingly allowed for The grounds raised by the assessee are accordingly allowed for The grounds raised by the assessee are accordingly allowed for statistical purposes.
In the result, all the appeals of the assessee are allowed for In the result, all the appeals of the assessee are allowed for In the result, all the appeals of the assessee are allowed for statistical purposes.