RITA DEEPAK BHUPTANI, MUMBAI v. ITO 19(2)(2), MUMBAI

ITA 5381/MUM/2014 | 2008-2009
Pronouncement Date: 26-10-2016 | Result: Allowed

Appeal Details

RSA Number 538119914 RSA 2014
Assessee PAN ADZPB4215A
Bench Mumbai
Appeal Number ITA 5381/MUM/2014
Duration Of Justice 2 year(s) 2 month(s)
Appellant RITA DEEPAK BHUPTANI, MUMBAI
Respondent ITO 19(2)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 26-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 26-10-2016
Assessment Year 2008-2009
Appeal Filed On 26-08-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH MUMBAI BEFORE SHRI MAHAVIR SINGH JM AND SHRI RAJESH KUMAR AM ./ I .T.A. NO. 1 741 /MUM/201 2 ( / ASSESSMENT YEAR S : 200 8 - 09 ) DEEP AK N BHUPTANI C/O SHAH AND COMPANY TAX CONSULTANTS 201 PRINCESS STREET KESAR BLDG ROOM NO.11 FIRST FLOOR MUMBAI - 400002 / VS. INCOME TAX OFFICER 19(2) ( 1 ) PIRAMAL CHAMBERS 3 RD FLOOR PAREL MUMBAI - 400 0 12 ./ PAN : ADZPB4215A ./ I .T.A. NO. 5381/MUM/2014 ( / ASSESSMENT YEAR S : 2008 - 09 ) SMT.RITA DEEPAK BHUPTANI 13 JEEVAN PARAG PRABHAT COLONY SANTACRIUZ (E) MUMBAI - 400055 / VS. INCOME TAX OFFICER 19(2)( 2 ) PIRAMAL CHAMBERS LALB AUG PAREL MUMBAI - 400 012 ./ PAN :A ELPB0 - 644L / ASSESSEE S BY SHRI DHAVAL SHAH / REVENUE BY SHRI B S BIST / DATE OF HEARING : 25.10. 2016 / DATE OF PRONOUNCEMENT : 26. 10 .2016 / O R D E R PER RAJESH KUMAR A M THESE APPEALS FILED BY THE RESPECTIVE PARTIES AGAINST THE ORDER S DATED 2.1.2012 AND 25.6.2014 PASSED BY THE LD. CIT(A) - 30 MUMBAI FOR THE ASSESSMENT 2 ITA NO. 1741/M/12 AND 5381/M/2014 YEAR S 2008 - 09 RESPECTIVELY . SINCE ISSUES INVOLVED IN BOTH THESE APPEALS ARE COMMON THESE WERE CLUBBED AND HEARD TOGETHER AND ARE BEING DECIDED BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. I .T.A. NO.1741/MUM/2012 2. FACTS OF THE CASE ARE THAT THE ASSES SEE FILED HIS RETURN OF INCOME ON 30.9.2008 DECLARING A TOTAL INCOME AT RS.1 27 486/ - WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT 1961 (THE ACT) . T HEREAFTER THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND PROCEEDINGS UNDER SECT ION 143(2) AND 142(1) WERE FOLLOWED AND ASSESSMENT WAS COMPLETED VIDE ORDER DATED 27.12.2010 U/S 143(3) AT RS.30 27 080/ - BY MAKING AN ADDITIONS OF RS. 30 27 078/ - ON PROTECTIVE BASIS . 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WAS DOING BU SINESS THROUGH HIS WIFE AS HE WAS SUFFERING FROM PARALYTIC STROKE HOWEVER THE NOTED THAT BANK ACCOUNT OF M/S ANUJ ENTERPRISES A PROPRIETARY CONCERN WAS OPENED BY SMT RITA D RUPANI IN THE CAPACITY AS PROPRIETOR. IN THE SAID BANK ACCOUNT THE HUGE TRANSACTI ONS WERE CARRIED OUT BOTH OF DEPOSIT AND WITHDRAWALS. THE TOTAL CREDITS DURING THE YEAR WERE RS. 30 27 15 753/ - .THE AO AFTER CONSIDERING THE SUBMISSIONS AND REPLIES OF THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS FROM TIME TO TIME REJECTED TH E SAME AS THE AO WAS NOT CONVINCED WITH THE CONTENTION OF THE ASSESSEE THAT HE EARNED ONLY 0.042% COMMISSION ON 3 ITA NO. 1741/M/12 AND 5381/M/2014 THE TOTAL TURNOVER AND MADE AN ADDITION EQUAL TO 1% OF RS. 30 27 15 753/ - ON PROTECTIVE BASIS WHEREAS MAKING THE SIMILAR ADDITIONS IN THE HANDS OF WIFE OF THE ASSESSEE ON SUBSTANTIVE BASIS . 4 . AT THE OUTSET THE LD.AR SUBMITTED BEFORE US THAT THE LD.CIT(A) HAS ACTED IN GROSS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE IN CONFIRMING THE ACTION OF THE AO VIDE ORDER DATED 02.01.2012 DESPITE TH E F ACTS THAT THE APPEAL WAS ADJOURNED TO 21.2.2012 BY THE OFFICE OF THE LD.CIT(A). 5 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT IN THE PRESENT CASE THE ADDITION HA S BEEN MADE BY THE AO ON THE PROTECTIVE BASIS . DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE AO THE WIFE OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS RECEIVED COMMISSION AT THE RATE OF 0.042% OF THE TOTAL AMOUNT CREDITED IN THE BANK ACCOU NT OF THE ASSESSEE WHICH WAS RS.30 27 07 783/ - AND THE ASSESSEE COULD NOT APPEAR BEFORE THE AO SINCE HE WAS SUFFERING FROM PARALYSIS AND WAS NOT IN A POSITION TO MOVE . HOWEVER THE AO MADE THE ADDITION OF RS.30 27 078/ - ON PROTECTIVE BASIS IN THE H ANDS OF THE ASSESSEE IN ORDER TO PROTECT THE INTEREST OF THE REVENUE. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE PREFERRED AND APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE ACTION OF THE AO BY OBSERVING AND HOLDING AS UNDER : 4 ITA NO. 1741/M/12 AND 5381/M/2014 2. 6 I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT THE APPELLANT IS AN ADATIA IN IRON & STEEL MARKET. IT HAS BEEN CLAIMED ON BEHALF OF THE APPELLANT THAT HE HAS ARRANGED MEETING BETWEEN THE SUPPLIERS AND THE PURCHASERS L ONG BACK IN THE PAST AND AT THAT TIME IT WAS AGREED THAT WHENEVER THE TRANSACTION WILL TAKE PLACE BETWEEN SUCH SUPPLIER AND PURCHASER THE APPELLANT WOULD BE ENTITLED TO AADAT OF SEVEN AANA I.E. FORTY TWO PAISE ON EVERY THOUSAND RUPEES ON COMPLETION OF THE FINANCIAL TRANSACTION. IT IS ALSO SUBMITTED ON BEHALF OF THE APPELLANT THAT THE A.O. WAS NOT JUSTIFIED IN ESTIMATING THE INCOME FROM BUSINESS OR PROFESSION OF THE APPELLANT AT RS. 30 27 078/- BEING 1 % COMMISSION ON THE TURNOVER OF RS. 30 27 07 783/ - .IT I S ALSO SUBMITTED THAT THE BOOKS OF ACCOUNT OF THE APPELLANT ARE AUDITED U/S 44AB OF THE I T. ACT 1961 AND THUS THERE IS NO REASON FOR ESTIMATING THE INCOME OF THE APPELLANT. THE A.O. ON THE OTHER HAND HAS OBSERVED THAT THE COMMISSION SHOWN TO HAVE BEEN E ARNED BY THE APPELLANT OF RS. 1 27 068/ - WHICH IS 0.042% OF 30 27 07 783/ - IS TO MEAGER AND TO LOW TO BE BELIEVED. FURTHER THE APPELLANT COULD NOT PRODUCE ANY EVIDENCE TO HIS CLAIM THAT HE WAS EARNING ONLY 42 PAISE ON EVERY THOUSAND RUPEES AS COMMISSION . I FIND CONSIDERABLE FORCE IN THE ARGUMENTS OF THE A. O. THAT THE COMMISSION SHOW N BY THE APPELLANT IS VERY MEAGER AND LOW. THEREFORE IN M Y VIEW THE A.O. IS QUITE JUSTIFIED IN ESTIMATING THE SAME AT 1% OF THE TURNOVER OF RS.30 27 07 783/ - . THEREFORE T HE ADDITION MADE BY THE AO OF RS.30 27 078/ - 6 . THE LD. AR VEHEMENTLY ARGUED BEFORE US THAT THE ASSESSEE WAS BED RIDDEN FOLLOWING THE PARALYTIC ATTACK AND COULD NOT ATTEND EITHER BEFORE THE AO OR BEFORE THE LD. CIT(A) AND THE LD. CIT(A) DECIDED THE MATTER ON 2.1.2012 DESPITE THE FACT THAT THE HEARING WAS ADJOURNED TO 21.2.2012 BY THE OFFICE OF LD.CIT(A) AND THEREFORE HUMBLY PRAYED THAT THE MATTER BE RESTORED TO THE FILE OF THE LD.CIT(A) TO DECIDE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE INTEREST JUSTICE AND FAIR PLAY. 7 . THE LD. DR ALSO FAIRLY AGREED WITH THE ARGUMENTS ADVANCED BY THE LD.AR. 5 ITA NO. 1741/M/12 AND 5381/M/2014 8 . WE FIND FROM THE ABOVE DISCUSSIONS AND CONTENTIONS OF THE PARTIES THAT THE MAIN GRIEVANCE OF THE ASSESSEE WAS THAT DESPITE THE HEARING WAS ADJOURNED TO 21.2.2012 THE LD CIT(A) DECIDED THE APPEAL ON 02.01.2012 AND THE ASSESSEE DID NOT GET THE OPPORTUNITY TO PRESENT HIS CASE. IT IS ALSO NOTED FROM THE RECORD THAT THE ASSESSEE SUFFERS FROM PARALYTIC STRO KE AN D W AS NOT IN A POSITION TO MOVE . WE ARE THEREFORE OF THE OPINION THAT THE ENDS OF JUSTICE WOULD BE MET IF THE ASSESSEE IS GRANTED ONE MORE OPPORTUNITY OF HEARING TO PRESENT HIS CASE . WE ALSO FIND THAT THE LD.CIT(A) ALSO DECIDED THE CASE OF THE ASSESSEE ON THE DATE PRIOR TO THE DATE OF HEARING. ACCORDINGLY WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE APPEAL TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AS PER FACTS AND LAW AFTER PROVIDING FAIR AND REASONABLE OPPORTUNITY TO THE ASSESSEE . RESULTANTLY THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. I .T.A. NO.5381/MUM/2014 9 . FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME TO THE NOTICE UNDER SECTION 148 AT RS.30 000/ - AND RELYING ON THE BASIS OF THE FACTS OF HER HUSBAND THE AO MADE AN ADDITION OF RS.30 27 078/ - INCLUDING THE ADDITION OF RS.1 67 173/ - BEING UNEXPLAINED RECEIPTS ASSESSING THE TOTAL INCOME AT RS.32 24 250/ VIDE AN ASSESSMENT ORDER DATED 8.3.2013 PASSED UNDER SECTION 143(3) R.W.S 147 OF THE ACT ON SUBSTANTIVE BASIS . AGGRIEVED BY THE ORDER OF AO 6 ITA NO. 1741/M/12 AND 5381/M/2014 THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A) WHO ALSO CONFIRMED THE ACTION OF THE AO AND THE ASSESSEE FILE D APPEAL BEFORE THE TRIBUNAL. 10 . SINCE WE HAVE ALREADY SET ASIDE THE ISSUE TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION OF THE ISSUE IN ASSESSEES HUSBANDS CASE IN ITA NO I .T.A. NO.1741/MUM/2012 IN WHICH THE ADDITION WERE MADE ON PROTECTIVE BASIS . IN THE PRESENT CASE THE ADDITION HAS BEEN MADE ON SUBSTANTIVE BAS IS. SINCE WE HAVE RESTORED THE ISSUE TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION IN ASSESSEES HUSBAND CASE SUPRA THEREFORE WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND RESTOR E THE SAME TO THE FILE OF THE LD.CIT(A) TO DECIDE THE MATTER AFRESH AF TER AFFORDING REASONABLE HEARING . 11 . OTHER GROUNDS RAISED IN THIS APPEAL ARE OF ACADEMIC IN NATURE AND HENCE REQUIRED NO ADJUDICATION THEREFORE DISMISSED. 12 . IN THE RESULT BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUN CED IN THE OPEN COURT ON 26 . 10 .2016 . SD SD ( MAHAVIR SINGH ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 26 . 10. 2016 SR.PS:SRL: 7 ITA NO. 1741/M/12 AND 5381/M/2014 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. / DR ITAT MUMBAI 6. / GUARD F ILE / BY ORDER TRUE COPY / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI