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Income Tax Appellate Tribunal, MUMBAI BENCHES “B”, MUMBAI
Before: Shri Joginder Singh, & Shri Rajesh Kumar
Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 28/02/2013 of the ld. First Appellate Authority, Mumbai. On the ground that though several notices were claimed to be issued to the assessee but none of the notice was ever served 2 Motilal T Prajapati upon the assessee, therefore, the ex-parte impugned order is against the principle of natural justice and further confirming the addition of Rs.9,39,000/- towards unsecured loans added as unexplained cash credit u/s 68 of the Income Tax Act, 1961 (hereinafter the Act).
During hearing of this appeal, the ld. counsel for the assessee, Shri Dattatray E Bhanage, advanced his arguments which are identical to the ground raised by explaining the factual matrix. On the other hand, the ld. DR, contended that in spite of notices issued to the assessee, no compliance was made, therefore, the addition was rightly made.
2.1. We have considered the rival submissions and perused the material available on record. The fact, in brief, are that the assessee is a proprietor of M/s Sariyadevi Enterprises and M/s Ajit Chemist, declared income of Rs.2,08,771/- in his return filed on 30/03/2010. Later on, the case of the assessee was selected for scrutiny, therefore, notice u/s 143(2) of the Act along with questionnaire was issued to the assessee. This notice was duly served upon the assessee. The assessee attended the assessment proceedings and furnished necessary details as called for and the same were verified. The ld. Assessing Officer got AIR information that the assessee purchased immovable property for a consideration of Rs.32 lakh. The assessee was asked to furnish the source of funds for purchasing the property along with documentary evidence. The assessee vide 3 Motilal T Prajapati 14/11/2010 claimed that the property was purchases for a consideration of Rs.33,72,860/- which includes stamp duty, registration fee. It was explained that the assessee took housing loan of Rs.20,35,000/- from ICICI Bank and to substantiate the claim. The assessee submitted disbursement letter from the bank. The remaining amount of Rs.15,39,000/- was claimed to be by way of unsecured loans from following parties.
S.N. Name of party Amount (Rs.) 1. Nakani 25000 2. Durga Enterprises 100000 3. Rameshkuamr M. Choudhary 50000 4. Aai Mata Enterprises 50000 5. Tarachand Rupaji 49000 6. Pradeep Jain 50000 7. Rajnikant K. Prajapati 150000 8. Ushaben Y. Shah 350000 9. Ashish Navin Shah 200000 10. Vaishali Tejash Shah 200000 11. Hema Yogesh Shah 100000 12. Fulvanti Jayantilal Parikh 100000 13. Tarachanbhai 115000 Total 15,39,000 2.2. The Assessing Officer found that for the amount of Rs.2,90,000/- (in respect of four parties) no loan confirmation filed by the assessee and with respect to three 4 Motilal T Prajapati (as detailed in para 4.7 of the assessment order) , these parties deposited cash in their respective accounts before issuance of cheque, thus, the Assessing Officer made addition of Rs.9,39,000/-.
2.3. On appeal, before the ld. Commissioner of Income Tax (Appeals), various notices were issued. We note that for 23/06/2011, as per the Revenue, nobody appeared. The notice for 19/06/2012 was returned unserved, and the further notice for 31/12/2012 none appeared. As per the Revenue, the notice for 18/01/2013, was returned unserved. We find that there is no finding in the impugned order that notices were actually served upon the assessee, therefore, in the absence of service of notice, in our view, no person should be condemned unheard as there is violation of principle of natural justice, therefore, without going into merits of the appeal, we remand this appeal to the file of the ld. Commissioner of Income Tax (Appeals) to adjudicate the same afresh on merit. The assessee be given opportunity of being heard with further liberty to furnish evidence, if any, in support of his claim. The assessee is also directed to remain vigilant and to approach the office of the Commissioner of Income Tax (Appeals) within one month from the receipt of this order. The ld. Commissioner of Income Tax (Appeals) is free to adjudicate the appeal as per his convenience on a mutually decided date. Thus, the appeal of the assessee is allowed for statistical purposes.
5 Motilal T Prajapati Finally, the appeal of the assessee is allowed for statistical purposes.
This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 13/10/2015.
Sd/- Sd/- (Rajesh Kumar) (Joginder Singh) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER मुंबई Mumbai; �दनांक Dated : 21/10/2015 f{x~{tÜ? P.S/.�न.स. आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT, Mumbai. 4. आयकर आयु�त / CIT(A)- , Mumbai 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील�य अ�धकरण, मुंबई / ITAT, Mumbai.
Date Initial Original order dictated directly on computer 1. Draft dictated on 13/10/15 to Sr.PS 14/10/2015 14/10/2015 2. Draft placed before author Sr.PS 3. Draft proposed & placed before JM/AM the second member 4. Draft discussed/approved by JM/AM Second Member 5. Approved Draft comes to the Sr.PS Sr.PS/PS 6. Date of pronouncement Sr.PS 7. File sent to the Bench Clerk Sr.PS 8. Date on which file goes to the Head Clerk 9. Date of dispatch of Order