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Income Tax Appellate Tribunal, F Bench, Mumbai
Before: Shri Jason P. Boaz & Shri Sandeep GosainSmt. Vinodini Vyas
This appeal by the assessee is directed against the order of the CIT(A)-30, Mumbai dated 11.02.2013 for A.Y. 2009-10. In the case on hand, this appeal of the assessee was originally dismissed by an order of even number dated 13.04.2016, ex-parte, primarily for non prosecution. Subsequently, the assessee preferred a miscellaneous application against the said order and vide order in MA No. 152/Mum/2016 dated 26.10.2016 the order was set aside and this appeal was restored to be heard on merits.
The facts in the case, briefly, are as under: - 2.1 The assessee is running two proprietary concerns, i.e. M/s. Maxwell Vision and M/s. Designer Point, during the year under consideration which are into cable operations and readymade garments business respectively. The return of income for A.Y. 2009-10 was filed declaring income of `2,61,356/-. The case was taken up for scrutiny and the assessment was completed under section 143(3) of the Income Tax Act, 1961 (in short 'the 2 ITA 4097/Mum/2013 Smt. Vinodini Vyas Act') wherein the income of the assessee was determined at `25,43,070/- in view of, inter alia, the following additions: - (i) Addition on account of unexplained `16,96,500/- Cash deposits `5,85,214/- (ii) Addition on account of undisclosed business income 2.2 Aggrieved by the order of assessment for A.Y. 2009-10, the assessee preferred an appeal before the CIT(A)-30, Mumbai. The learned CIT(A) dismissed the assessee’s appeal ex-parte vide the impugned order dated 11.02.2013. In this regard, the learned CIT(A) has observed that he was left with no other option but to decide the appeal on merits ex-parte as he was of the view that the assessee was not serious in pursuing the appeal, since inspite of affording the assessee six opportunities of hearing, the assessee failed to appear before him and file details/submissions in support of the grounds of appeal
before him which were in respect of and challenged the following issues: - (i) Addition of `16,96,500/- on account of unexplained cash deposits in ICICI bank account, and (ii) addition of `5,85,214/- being undisclosed business income.
3. Aggrieved by the order of the CIT(A)-30, Mumbai dated 11.02.2013, for A.Y. 2009-10the assessee has preferred this appeal before the Tribunal raising the following grounds: - “A. PRIMA FACIE
1. On facts and circumstances of the case, the learned CIT (A) has passed Order without complying with me principles or natural justice and fairness. B. PASSING OF ORDER UNDER SECTION 144 OF INCOME TAX ACT 1961
2. That On facts and circumstances of the case , the impugned Order passed by the learned CIT (A) are without due considering of the provisions of Section 143 (3) of the Income Tax Act 1961 for justifying the action of passing Assessment Order by the learned Assessing Officer accordingly with the law laid down by Hon. Courts from time to time.
3 ITA 4097/Mum/2013 Smt. Vinodini Vyas C. ON UNEXPLAINED CASH DEPOSIT 3. That Ld. CIT (A) has erred in uphelding the addition of Rs.16,96,500/- on account of unexplained cash deposit in bank, without appreciating the facts of the case and provisions of the Income Tax Act, 1961. D. ON SHARE TRADING INCOME
The Ld. CIT (A) has erred in adding of Rs 5,85,214/- done by the Assessing Officer on adhoc basis, without appreciating the facts of the case and provisions of the Income Tax Act, 1961. d. OTHER GROUNDS 5. Appellant deserves the right to add, alter, amend the above grounds of appeal
at the time of hearing.”
4. The grounds at S.No. 1 & 5, being general in nature no adjudication is called for thereon.
5. Grounds No. 2 – Ex-parte order by CIT(A) 5.1 The learned A.R. of the assessee was heard in support of this ground. According to the learned A.R., since the learned CIT(A) had disposed off her appeal ex-parte for non-prosecution, the grounds/ issues raised were not disposed off on merits before the learned CIT(A) in respect of additions made by the AO in the order of assessment on: - the addition of `16,96,000/- on account of cash deposits in the (i) assessee’s ICICI Bank account in the period under consideration, and (ii) addition of `5,85,214/- in respect of share trading activities of the assessee. It is contended that in view of the above reasons itself, the impugned order of the learned CIT(A) dismissing the assessee’s appeal ex-parte should be set aside and the matter restored back to the file of the AO for fresh consideration. 5.2 Admission of Additional Evidences – According to the learned A.R. of the assessee the authorities below had not examined the entire details/facts of the matter in respect of the additions at (i) & (ii) (supra), because though necessary documents were provided to her erstwhile 4 ITA 4097/Mum/2013 Smt. Vinodini Vyas Chartered Accountant who failed to appear before the authorities below and submit the same, leading to the present plight of the assessee. In this context and in order to have the issues in appeal heard and considered on merits, the assessee filed an Application for Admission of Additional Evidences under Rule 29 of the Appellate Tribunal Rules in paper book –II, pgs 1 to 47 comprising: (i) Trading statement of ICICI Bank (ii) Demat Statement from ICICI Bank and (iii) Bank statement In this application, the assessee submits that the documents comprising the additional evidence could not be filed before the authorities below because though they were provided to her Chartered Accountant he/she did not appear before the officers and submit them and therefore the case is in its present state. According to the assessee, the documents forming part of the additional evidence are very much relevant to the issues involved in the appeal and it was prayed that the same should be admitted for consideration in this appeal so that a correct view can be taken by the AO after due verification. The learned D.R. was also heard in the matter. After careful consideration of the assessee’s application for admission of additional evidence under Rule 29 of the Appellate Tribunal Rules, we are of the view that since the details sought to be submitted (supra) are essential and would go to the root of the merits of the two issues which are the subject matter of appeal, we, therefore in the interest of equity and justice admit the same for consideration. 5.3 We have heard the rival contentions and perused and carefully considered the material on record. On a perusal of the impugned order it is clear that the same was admittedly passed ex-parte on the basis of material on record which establish that the assessee’s appeal was dismissed for non-prosecution and the two grounds raised in respect of (i) addition of `16,96,500/- made on account of cash deposits in the assessee’s bank account at ICICI Bank in the period under consideration and (ii) the addition of `5,85,214/- as undisclosed income on account of