SANJAYKUMAR AGARWAL, MUMBAI v. ITO WD 14(2)(2), MUMBAI

ITA 1615/MUM/2009 | 2005-2006
Pronouncement Date: 28-01-2011 | Result: Partly Allowed

Appeal Details

RSA Number 161519914 RSA 2009
Bench Mumbai
Appeal Number ITA 1615/MUM/2009
Duration Of Justice 1 year(s) 10 month(s) 21 day(s)
Appellant SANJAYKUMAR AGARWAL, MUMBAI
Respondent ITO WD 14(2)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted E
Tribunal Order Date 28-01-2011
Date Of Final Hearing 19-01-2011
Next Hearing Date 19-01-2011
Assessment Year 2005-2006
Appeal Filed On 09-03-2009
Judgment Text
1 ITA 1615/MUM/09 MR. SANJAY KUMAR AGARWAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E BEFORE SHRI P.M. JAGTAP A.M. AND SHRI N.V. VASUDEV AN JM ITA NO. 1615/MUM/2009 ASSESSMENT YEAR 2005-06 MR. SANJAY KUMAR AGARWAL 111 VIDYA APARTMENT CHOUPATI BANDSTAND MUMBAI 400006. PAN AACPA050217 VS. INCOME TAX OFFICER WARD 14(2)(2) 3 RD FLOOR EARNEST HOUSE NARIMAN POINT MUMBAI.21 APPELLANT RESPONDENT APPELLANT BY SHRI M. SUBRAMANIUM RESPONDENT BY SHRI HEMANT LAL ORDER PER P.M. JAGTAP A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) XIV MUMBAI DATED 26.12.2008 WHEREBY HE UPHELD THE ORDER OF THE A.O. PASSED U/S 144. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L WHO IS ENGAGED IN THE BUSINESS OF TRADING IN TEXTILE CLOTH. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 28.10.2005 DECLARING TOTAL INCOME OF ` 1 74 906/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS AND NOTICE U/S 143 (2) DATED 7.8.06 WAS ISSUED BY THE A.O. TO THE ASSESSEE. THE SAID NOTICE AS WELL AS N OTICES ISSUED BY THE A.O. SUBSEQUENTLY DURING THE COURSE OF ASSESSMENT PROCEEDINGS REMAINE D UN-COMPLIED WITH BY THE ASSESSEE AND CONSEQUENTLY THE A.O. PROCEEDED TO COMPLETE THE ASSESSMENT U/S 144 VIDE AN ORDER DATED 31.12.2007 ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT ` 5 90 62 410/- AFTER MAKING VARIOUS ADDITIONS INCLUDING THE MAIN ADDITIO N OF ` 5 67 00 000/- ON ACCOUNT OF CESSATION OF LIABILITY U/S 41(1). 2 ITA 1615/MUM/09 MR. SANJAY KUMAR AGARWAL 3. AGAINST THE ORDER PASSED BY THE A.O. U/S 144 AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A). DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) THE ASSESSEE DID NOT COMPLY FULLY WITH THE NOTICES ISSUED BY THE LD. CIT(A) FIXING THE HEARING FROM TIME TO TIME. EVEN THE DOCUMENTS F ILED BY THE ASSESSEE AS ADDITIONAL EVIDENCE WERE NOT ACCOMPANIED BY AN APPLICATION SEE KING ADMISSION THEREOF UNDER RULE 46-A OF THE INCOME TAX RULES. THE LD. CIT(A) ALSO FOUND NO MERIT IN THE APPEAL OF THE ASSESSEE AND DISMISSED THE SAME UPHOLDING THE ORDER PASSED BY THE A.O. U/S 144. AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASSES SEE HAS PREFERRED THIS APPEAL BEFORE THE LD. CIT(A). 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT IN THE CAS E OF M/S AKISTEX WORLD WIDE (IMPEX) LTD. BELONGING TO THE SAME GROUP THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED BY THE LD. CIT(A) UPHOLDING THE ORDER PASSED BY THE A.O. U /S144 IN THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE AND AS SUBMITTED BY THE L EARNED COUNSEL FOR THE ASSESSEE THE APPEAL FILED BY THE ASSESSEE IN THE SAID CASE AGAIN ST THE ORDER OF THE LD. CIT(A) HAS ALREADY BEEN DISPOSED OF BY THE TRIBUNAL VIDE ITS O RDER DATED 22.1.10 PASSED IN ITA NO. 1616/MUM/2009. HE HAS ALSO PLACED A COPY OF THE SA ID ORDER AND A PERUSAL OF THE SAME SHOWS THAT THE TRIBUNAL HAS SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MATTER TO THE FILE OF THE A.O. WITH A DIRECTION TO MAKE FR ESH ASSESSMENT FOR THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 6:- WE FIND THE CIT(A) PASSED THE ORDER ON 10 TH OCTOBER 2008. FROM THE AFFIDAVIT FILED BY SHRI SANJAY AGARWAL DIRECTOR OF THE ASSES SEE COMPANY WE FIND MR. RAMESH CHANDRA AGARWAL WHO APPEARED BEFORE THE ASSE SSING OFFICER EXPIRED ON 17 TH OCTOBER 2008. THE FACT OF HIS ILL HEALTH WAS ALS O BEFORE THE ASSESSING OFFICER WHO HAS MENTIONED THE SAME IN THE ASSESSMENT ORDER. WE THEREFORE ARE OF THE CONSIDERED OPINION THAT THERE WAS A REASONABLE CAUS E ON THE PART OF THE ASSESSEE FOR NON APPEARANCE BEFORE THE CIT(A). SINCE THE OFFICE PREMISES WAS SEALED BY THE BANK AND SHRI RAMESH CHANDRA AGARWAL WAS PUT BEHIND BARS DUE TO EXCISE DUTY VIOLATION THEREFORE NO DETAILS WERE FURNISHED BEF ORE THE ASSESSING OFFICER. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND IN THE INTEREST OF JUSTICE WE 3 ITA 1615/MUM/09 MR. SANJAY KUMAR AGARWAL DEEM IT PROPER TO RESTORE THE MATTER BACK TO THE FI LE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSES SEE TO SUBSTANTIATE WITH DOCUMENTARY EVIDENCE TO THE SATISFACTION OF THE ASS ESSING OFFICER REGARDING THE INCOME DECLARED BY THE ASSESSEE. NEEDLESS TO SAY T HE ASSESSING OFFICER SHALL GIVE ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. AS THE ISSUE INVOLVED IN THE PRESENT CASE AS WELL A S ALL THE MATERIAL FACTS RELEVANT THERETO ARE ADMITTEDLY SIMILAR TO THE CASE OF M/S AKISTEX W ORLD WIDE (IMPEX) LTD. (SUPRA) WE RESPECTFULLY FOLLOW THE ORDER OF THE TRIBUNAL PASSE D IN THE SAID CASE AND RESTORE THE MATTER TO THE FILE OF THE A.O. WITH A DIRECTION TO COMPLET E THE ASSESSMENT AFRESH IN ACCORDANCE WITH LAW AFTER GIVING ONE MORE OPPORTUNITY TO THE A SSESSEE OF BEING HEARD. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 28 TH JANUARY 2011. SD/- SD/- (N.V. VASUDEVAN) (P.M. JAGTAP) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI DATED 28 TH JANUARY 2011. RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XIV - MUMBAI 4. THE CIT- 14 MUMBAI 5. THE DR BENCH E 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI 4 ITA 1615/MUM/09 MR. SANJAY KUMAR AGARWAL DATE INITIALS 1 DRAFT DICTATED ON 21.1.11 25.1.11 SR. PS 2 DRAFT PLACED BEFORE THE AUTHOR 24.1.11 25.1.11 SR. PS 3 DRAFT PLACED BEFORE THE SECOND MEMBER 4 APPROVED DRAFT COMES TO THE SR. PS SR. PS 5 KEPT FOR PRONOUNCEMENT ON SR. PS 6 FILE SENT TO THE BENCH CLERK SR. PS 7 DATE ON WHICH FILE GOES TO THE HEAD CLERK 8 DATE ON WHICH FILE GOES TO THE AR 9 DATE OF DISPATCH OF ORDER