RASHMI SAMPAT, MUMBAI v. ITO 19(3)(2), MUMBAI

ITA 1838/MUM/2012 | 2003-2004
Pronouncement Date: 24-10-2013 | Result: Partly Allowed

Appeal Details

RSA Number 183819914 RSA 2012
Assessee PAN AAVPS1869C
Bench Mumbai
Appeal Number ITA 1838/MUM/2012
Duration Of Justice 1 year(s) 7 month(s) 8 day(s)
Appellant RASHMI SAMPAT, MUMBAI
Respondent ITO 19(3)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 24-10-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 24-10-2013
Date Of Final Hearing 09-07-2013
Next Hearing Date 09-07-2013
Assessment Year 2003-2004
Appeal Filed On 16-03-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH MUMBAI . . . ! '# $ % BEFORE SHRI I.P. BANSAL JM AND RAJENDRA SINGH AM ./ I.T.A. NO. 1838/MUM/2012 ( & & & & ' ' ' ' / ASSESSMENT YEAR : 2003-04 RASHMI SAMPAT 1-A HILL TOP 49 PALI HILL ROAD BANDRA(W) MUMBAI 400050 & & & & / VS. THE ITO 19(3)(2) MUMBAI ( $ ./ ) ./ PAN/GIR NO. : AAVPS 1869C ( (* / APPELLANT ) .. ( + (* / RESPONDENT ) ./ I.T.A. NO. 1840/MUM/2012 ( & & & & ' ' ' ' / ASSESSMENT YEAR : 2003-04 RAJESH SAMPAT 1-A HILL TOP 49 PALI HILL ROAD BANDRA(W) MUMBAI 400050 & & & & / VS. THE ITO 19(3)(2) MUMBAI. ( $ ./ ) ./ PAN/GIR NO. : AAVPS 1870P ( (* / APPELLANT ) .. ( + (* / RESPONDENT ) (* - / APPELLANT BY: SHRI SATENDRA PANDEY + (* . - / RESPONDENT BY : SHRI SANJEEV JAIN & . /$ / DATE OF HEARING : 24/10/2013 01' . /$ / DATE OF PRONOUNCEMENT : 24/10/2013 ./ I.T.A. NO. 1838&1840/M/2012 ( & & & & ' ' ' ' / ASSESSMENT YEAR: 2003-04 2 2 / O R D E R PER I.P.BANSAL J.M: BOTH THESE APPEALS ARE FILED BY THE ASSESSEE. THE Y ARE DIRECTED AGAINST TWO SEPARATE EX-PARTE ORDERS PASSED BY LD. CIT(A) DAT ED 16/12/2011 AND 5/12/2011 IN THE CASES OF SMT. RASHMI SAMPAT AND S HRI RAJESH SAMPAT RESPECTIVELY. GROUNDS OF APPEAL IN BOTH THE APPEAL S ARE SIMILAR EXCEPT DIFFERENCE IN FIGURES. GROUNDS OF APPEAL IN THE CASE OF SMT . RASHMI SAMPAT ARE REPRODUCED BELOW: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LEARNED C.I.T. (A) ERRED IN DISMISSING THE APPEAL AND THAT TOO WIT HOUT GIVING ANY OPPORTUNITY OF BEING HEARD IN THE MATTER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED C.I.T. (A) ERRED IN DISMISSING THE APPEAL AND THAT TOO WIT HOUT APPRECIATING FULLY AND PROPERLY THE FACTS OF THE CASE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED C.I.T. (A) ERRED IN UPHOLDING THE VALIDITY OF THE REASSESS MENT PROCEEDINGS INITIATED BY ISSUANCE OF NOTICE U/S 148 OF THE I.T. ACT. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED C.I.T. (A) ERRED IN UPHOLDING THE VALIDITY OF THE ASSESSME NT ORDER PASSED U/S 144 R.W.S. 147 OF THE I.T. ACT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED C.I.T. (A) ERRED IN CONFIRMING THE ADDITION MADE OF RS.29 LACS AS UNEXPLAINED INCOME U/S 68 OF THE I.T. ACT. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED C.I.T. (A) ERRED IN DISMISSING THE GROUNDS OF APPEAL PERTA INING TO CHARGING OF INTEREST U/S 234A 234C AND 234D OF THE I.T. ACT. 2. IN THE APPEAL FILED BY SHRI. RAJESH SAMPAT THE AMOUNT AS MENTIONED IN GROUND NO.5 IS A SUM OF RS.33.00 LACS. ./ I.T.A. NO. 1838&1840/M/2012 ( & & & & ' ' ' ' / ASSESSMENT YEAR: 2003-04 3 3. THESE APPEALS RAISE IDENTICAL ISSUE AND THEY WER E ARGUED TOGETHER BY BOTH THE PARTIES THEREFORE FOR THE SAKE OF CONVENIENCE BOTH THESE APPEALS ARE DISPOSED OF BY THIS CONSOLIDATED ORDER. 4. BOTH THE ASSESSEES ARE PARTNERS IN A FIRM NAMED M/S. DECCAN ENTERPRISES. A SURVEY ACTION UNDER SECTION 133A OF THE INCOME TA X ACT 1961 (THE ACT) WAS CONDUCTED IN THE CASE OF M/S. DECCAN ENTERPRISES ON 12/09/2007. THE ITO WHO HAD SURVEYED THE PREMISES HAS INFORMED THE AO OF TH E ASSESSEE THAT CERTAIN INCRIMINATING DOCUMENTS AND LOOSE PAPERS PERTAINING TO THESE ASSESSEES WERE FOUND FROM THE PREMISES OF THE FIRM. ACCORDINGLY ASSESSMENT OF THESE ASSESSEES WERE REOPENED AND THE ASSESSEES WERE REQUIRED TO E XPLAIN AS TO HOW AMOUNT OF RS.29.00 LACS IN THE SHAPE OF COPIES OF DEMAND DRA FTS AND CHEQUES FOUND DURING THE COURSE OF SURVEY IN THE CASE FOR SMT. RASHMI S AMPAT AND SIMILARLY IN THE CASE OF SHRI. RAJESH SAMPAT OF RS.33.00 LACS SHOUL D NOT BE ADDED TO THE INCOME. THE ASSESSMENTS HAVE BEEN FRAMED EX-PARTE BY ADDING THE SAID AMOUNTS TO THE INCOME OF THE RESPECTIVE ASSESSEE. IN THE ASSESSMENT ORDER IT HAS BEEN MENTIONED THAT IN RESPONSE TO NOTICE UNDER SE CTION 148 REPLIES WERE FILED. HOWEVER WHEN THE ASSESSMENT PROCEEDINGS WERE INITI ATED AND CASE WAS FIXED FOR HEARING ON 20/8/2010 THE ASSESSEE DID NOT APPEAR. THE AO ISSUED ANOTHER NOTICE FOR HEARING ON 12/11/2010 THROUGH SPEED POS T AND ULTIMATELY THE FATHER OF THE ASSESSEE SHRI R.C.SAMPAT APPEARED BEFORE AO ON 6/12/2010 SEEKING THE ADJOURNMENT FOR 8/12/2010. ON 8/12/2010 NONE APPE ARED ON BEHALF OF THE ASSESSEES. IT IS THEREFORE EX-PARTE ORDER CAME TO BE PASSED WHICH IS DATED 22/12/2010 IN THE CASE OF BOTH THE ASSESSEES AND TH E AFOREMENTIONED AMOUNTS WERE ADDED TO THE INCOME. AGGRIEVED ASSESSEES FI LED APPEALS BEFORE LD. CIT(A) WHO HAS ALSO DISMISSED THE APPEALS FILED BY BOTH T HE ASSESSEES EX-PARTE CONFIRMING THE ADDITION AS WELL AS VALIDITY OF REA SSESSMENT PROCEEDINGS. AGGRIEVED WITH SUCH ORDER BOTH THE ASSESSEES HAVE FILED APPEAL BEFORE US. 5. REFERRING TO THE ORDER OF LD. CIT(A) IT WAS SUBM ITTED BY LD. AR THAT THOUGH IN THE ORDER LD. CIT(A) IS REFERRING TO VARIOUS DA TES BUT HE HAS NEVER SAID THAT THE NOTICE OF HEARING WAS SERVED. HE SUBMITTED THA T ASSESSEES DID NOT RECEIVE THE NOTICE FROM LD. CIT(A). THEREFORE HE PLEADED THAT IN THE INTEREST OF JUSTICE THE ./ I.T.A. NO. 1838&1840/M/2012 ( & & & & ' ' ' ' / ASSESSMENT YEAR: 2003-04 4 MATTER MAY BE RESTORED BACK TO THE FILE OF LD. CIT( A) WITH A DIRECTION TO GIVE ADEQUATE OPPORTUNITY TO THE ASSESSEE AND AFTER GIV ING SUCH OPPORTUNITY TO THE ASSESSEE LD. CIT(A) MAY BE DIRECTED TO DISPOSE OF THE APPEALS FILED BY THE ASSESSEE AS PER LAW. 6. ON THE OTHER HAND IT WAS SUBMITTED BY LD. DR TH AT ASSESSEE HAS ALREADY BEEN GRANTED WITH AMPLE OPPORTUNITY BY THE AO AS W ELL AS LD. CIT(A). AS ASSESSEE HAS FAILED TO AVAIL SUCH OPPORTUNITY THE APPEALS MAY NOT BE RESTORED BACK TO THE FILE OF LD. CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. FOR THE SAKE OF CONVENIENCE WE MAY REP RODUCE THE RELEVANT PARAS OF THE ORDERS OF LD. CIT(A) WHICH STATE THE REASONS FO R PROCEEDING TO DECIDE THE APPEALS EX-PARTE: IN THE CASE OF SMT. RASHI SAMPAT: THE PRESENT APPEAL IS DIRECTED AGAINST THE ASSESSM ENT ORDER PASSED BY ITO 19(3)(2) MUMBAI U/S. U/S.144 R.W.S. 147 OF THE I.T .ACT 1961 ) DATED 22.12.2010. IN THIS CASE THE FIRST NOTICE OF HEARING WAS ISSUED ON / 23.8.2011 FIXING THE CASE FOR HEARING ON 14.9.2011 AT 11.45 AM. HOWEVER IN RESPO NSE TO THIS NOTICE NEITHER ANYBODY ATTENDED NOR ANY ADJOURNMENT WAS SOUGHT. TH EREFORE ANOTHER NOTICE DATED 11.10.2011 WAS ISSUED FIXING THE CASE FOR HE ARING ON 1.11.11 AT 11.30 AM. IN RESPONSE TO THIS NOTICE ALSO NEITHER ANYBODY ATT ENDED NOR ANY ADJOURNMENT WAS SOUGHT. THIS BEING SO A NOTICE DATED 28.11.11 WAS ISSUED FIXING THE CASE FOR HEARING ON 15.12.2011 AT 12 PM. HOWEVER AS USUAL N EITHER ANYBODY ATTENDED NOR ANY ADJOURNMENT WAS SOUGHT. 2. FROM THE ABOVE IT BECOMES CLEAR THAT THE APPELLA NT IS NOT INTERESTED IN PURSUING HER APPEAL AND THEREFORE THE APPEAL OF THE APPELLAN T IS DECIDED EXPARTE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE APPELLANT HAS RAISED VARIOUS GROUNDS OF APPEAL WHICH ARE AS UNDER: IN THE CASE OF SHRI RAJESH SAMPAT: 2.1. IN THIS CASE FIRST NOTICE OF HEARING WAS ISS UED ON 09-09-20 11 FIXING THE CASE FOR HEARING ON 27-09-2011 AT 3.00 P.M. THIS NOTICE WAS DULY SERVED ON THE APPELLANT. HOWEVER IN RESPONSE TO THIS NOTICE NEI THER ANYBODY ATTENDED NOR ANY ADJOURNMENT WAS SOUGHT. THEREFORE ANOTHER NOTICE D ATED 29-09-2011 FIXING THE CASE FOR HEARING ON 19-10-2011 AT 12. P.M. WAS ISSU ED. THERE WAS NO COMPLIANCE TO THIS NOTICE ALSO AS NEITHER ANYBODY ATTENDED NOR AN Y LETTER FOR ADJOURNMENT WAS FILED. THEREFORE ANOTHER NOTICE DATED 19-10-2011 W AS ISSUED FIXING THE CASE FOR HEARING ON 7-11-2011 AT 11 .30A.M. HOWEVER ON THIS DATE ALSO NEITHER NOBODY ATTENDED NOR ANY ADJOURNMENT WAS SOUGHT. THIS BEIN G SO FINAL NOTICE OF HEARING DATED 21-11-2011 WAS ISSUED FIXING THE CASE FOR HEA RING ON 29-11-2011 AT 3.45 P.M. HOWEVER AS USUAL NEITHER ANYBODY ATTENDED IN R ESPONSE TO THIS NOTICE NOR ANY ADJOURNMENT WAS SOUGHT. UNDER THE CIRCUMSTANCES IT BECOMES QUITE CLEAR THAT THE ./ I.T.A. NO. 1838&1840/M/2012 ( & & & & ' ' ' ' / ASSESSMENT YEAR: 2003-04 5 APPELLANT IS NOT INTERESTED IN PURSUING HIS APPEAL AND THEREFORE THE APPEAL OF THE APPELLANT IS DECIDED EX-PARTE ON THE BASIS OF MATER IAL AVAILABLE ON RECORD. AT THIS JUNCTURE IT WILL NOT BE OUT OF PLACE TO MENTION TH AT SAME KIND OF NON-COOPERATION / NON-COMPLIANCE WAS SHOWN BY THE APPELLANT DURING TH E ASSESSMENT PROCEEDINGS ALSO WHICH RESULTED IN PASSING EX-PARTE ORDER U/S. 144 R.W.S. 147 OF THE I.T. ACT. A PERUSAL OF THE AFOREMENTIONED PARAS WILL REVEAL T HAT IT IS NOT STATED BY LD.CIT(A) THAT THE LAST DATE ON WHICH THE APPEAL OF THE ASSES SEE IS DECIDED EX-PARTE THE NOTICE WAS DULY SERVED UPON THE ASSESSEE. THEREFOR E ACCORDING TO FACTS OF THE PRESENT CASE IT CAN BE PRESUMED THAT ON THE LAST DA TE OF HEARING NOTICE ISSUED BY LD. CIT(A) WAS NOT DULY SERVED UPON THE RESPECTIVE ASSESSEES. TAKING INTO CONSIDERATION SUCH FACT WE ARE OF THE OPINION THAT IT WOULD SERVE THE INTEREST OF JUSTICE IF THE MATTER IS RESTORED BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO RE- ADJUDICATE THESE APPEALS IN ACCORDANCE WITH LAW AFT ER GIVING BOTH THE ASSESSEES A REASONABLY OPPORTUNITY OF HEARING. WE ORDER ACCO RDINGLY. 7.1 TO ENSURE COMPLIANCE ON BEHALF OF ASSESSEE WE DIRECT THE ASSESSEE TO APPEAR BEFORE LD. CIT(A) ON 22/1/2014. LD. AR OF T HE ASSESSEE HAS DULY NOTED THE SAID DATE AND HE ENSURED THE COMPLIANCE OF THE DIRECTIONS. 7.2 SINCE WE ARE DISPOSING OF THESE APPEALS ON THE BASIS OF GROUND NO.1 WHICH IS REGARDING NON-GRANT OF OPPORTUNITY OF HEAR ING WE DO NOT CONSIDER IT NECESSARY TO GO INTO THE OTHER GROUNDS AS BOTH THE APPEALS IN THEIR ENTIRETY ARE BEING RESTORED BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO RE-ADJUDICATE THE SAME AS PER LAW IN THE MANNER AFORESAID. 8. IN THE RESULT FOR STATISTICAL PURPOSES APPEALS FILED BY THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24/10/2013 . 2 . 01' $ 3 4&5 24/10//2013 1 . 6 SD/- SD/- ! '# (RAJENDRA SINGH) . . (I.P.BANSAL) $ /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 4& DATED 24/10/2013 ./ I.T.A. NO. 1838&1840/M/2012 ( & & & & ' ' ' ' / ASSESSMENT YEAR: 2003-04 6 2 2 2 2 . .. . +/'7 +/'7 +/'7 +/'7 8 7'/ 8 7'/ 8 7'/ 8 7'/ / COPY OF THE ORDER FORWARDED TO : 1. (* / THE APPELLANT 2. + (* / THE RESPONDENT. 3. 9 ( ) / THE CIT(A)- 4. 9 / CIT 5. 7:6 +/& / DR ITAT MUMBAI 6. 6; < / GUARD FILE. 2& 2& 2& 2& / BY ORDER 7/ +/ //TRUE COPY// = == = / # # # # (DY./ASSTT. REGISTRAR) / ITAT MUMBAI . & . .VM SR. PS