MR. AMIT R. PATEL, MUMBAI v. DCIT-12(2), MUMBAI

ITSSA 48/MUM/2009 | misc
Pronouncement Date: 30-07-2010 | Result: Partly Allowed

Appeal Details

RSA Number 4819916 RSA 2009
Assessee PAN AABPP5242L
Bench Mumbai
Appeal Number ITSSA 48/MUM/2009
Duration Of Justice 1 year(s) 3 month(s) 5 day(s)
Appellant MR. AMIT R. PATEL, MUMBAI
Respondent DCIT-12(2), MUMBAI
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 30-07-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 30-07-2010
Date Of Final Hearing 26-05-2010
Next Hearing Date 26-05-2010
Assessment Year misc
Appeal Filed On 24-04-2009
Judgment Text
1 IT(SS) NO. 48/MUM/2009 SHRI AMIT R PATEL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI P M JAGTAP AM & SHRI R S PADVEKAR JM IT(SS) NO. 48/MUM/2009 (BLOCK PERIOD FROM 1.4.1990 TO 22.2.2001 ) SHRI AMIT R PATEL 51 SAJALAR BUILDING B ROAD CHURCHGATE MUMBAI VS THE DY COMMR OF INCOME TAX 12(2) MUMBAI (APPELLANT) (RESPONDENT) PAN AABPP5242L ASSESSEE BY: SHRI PRAKASH PANDIT REVENUE BY: SHRI SUMET KUMAR O R D E R PER R S PADVEKAR: IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE IMP UGNED ORDER OF THE LD CIT(A)-XII MUMBAI FOR THE BLOCK PERIOD FROM 1.4 .1990 TO 22.2.2001 DATED 11.2.2009 IN WHICH THE PENALTY LEVIED BY THE AO U/S 158BFA(2) HAS BEEN CONFIRMED. THE ASSESSEE HAS TAKEN THE FOLLOWI NG EFFECTIVE GROUNDS: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS. 1 80 862/- L EVIED BY THE AO U/S 158BFA(2) OF THE I T ACT 1961. 2. REASONS GIVEN BY THE LD CIT(A) FOR CONFIRMING THE PENALTY OF RS. 1 80 862/- LEVIED BY THE AO U/S 158BFA(2) OF I T ACT 1961 ARE WRONG INSUFFICIENT AND CONTRARY TO THE FACTS AND EV IDENCE ON RECORD. 2 WE HAVE HEARD THE PARTIES. THE FACTUAL MATRIX W HICH REVEALS FROM THE RECORDS IS THAT THE ASSESSMENT IN THIS CASE WAS COM PLETED U/S 158BD OF THE 2 IT(SS) NO. 48/MUM/2009 SHRI AMIT R PATEL I T ACT. THERE WAS A SEARCH AND SEIZURES OPERATION U/S 131(1) OF THE ACT AGAINST M/S BHAICHAND AMUOLUK CONSULTANCY SERVICES P LTD AND DURING THE COURSE OF SAID SEARCH CERTAIN INCRIMINATING DOCUME NTS WERE FOUND AND AS PER THE SAID DOCUMENTS IT WAS REVEALED THAT M/S BH AICHAND AMUOLUK CONSULTANCY SERVICES P LTD HAD ADVANCED LOAN TO SHR I AMIT R PATEL AND HIS GROUP CONCERNS AND HAD RECEIVED INTEREST IN CASH IN ADDITION TO THE CHEQUE RECEIPT RECORDED IN THE REGULAR BOOK. THE A.O. DE TERMINED THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD AT RS. 2 57 699/-. THE AO HAS ALSO LEVIED PENALTY U/S 158BFA(2) OF THE I T ACT OF RS.1 80 862 /- VIDE ORDER DATED 30.5.2005. THE ASSESSEE CHALLENGED THE PENALTY ORD ER BEFORE THE FIRST APPELLATE AUTHORITY I.E. LD CIT(A) AND THE LD CIT(A ) DISMISSED THE APPEAL FILED BY THE ASSESSEE. 3 IT APPEARS THAT AS RECORDED BY THE LD CIT(A) NO TICE WAS SERVED ON THE ASSESSEE ON 5.9.2008 FIXING THE DATE OF HEARING OF THE CASE ON 17.9.2008 AND THE SAID NOTICE WAS DULY SERVED ON THE ASSESSEE BU T THE ASSESSEE DID NOT REMAIN PRESENT. AGAIN SECOND NOTICE DATED 2.12.200 8 WAS ISSUED FIXING THE DATE OF HEARING ON 15.12.2008 AND ON THAT DATE THE ASSESSEE REQUESTED FOR ADJOURNMENT. AS PER THE ASSESSEES REQUEST THE CA SE WAS ADJOURNED TO 21.1.2009. NOTHING IS ON RECORD WHETHER FURTHER NO TICE WAS SERVED ON THE ASSESSEE GIVING OPPORTUNITY; THOUGH THE ASSESSEE D ID NOT ATTEND BEFORE THE CIT(A) ON 20.1.2009. THE LD CIT(A) DIRECTLY CAME TO THE CONCLUSION THAT THE ASSESSEE WAS NOT INTERESTED TO PROSECUTE THE APPEAL . AFTER SERVING THE NOTICE ON THE ASSESSEE ADMITTEDLY THE ASSESSEE HAS APPEA RED AND SOUGHT ADJOURNMENT. 4 THE LD COUNSEL FOR THE ASSESSEE ASSAILED THE ORDE R OF THE LD CIT(A) AND SUBMITS THAT THE LD CIT(A) IN PARA 3.2 STATED THAT NO WRITTEN SUBMISSION WAS FILED. BUT IN FACT THE ASSESSEE FILED THE WRITTEN SUBMISSION. MOREOVER IN THIS REGARD ALL THE WELL SETTLED LEGAL POSITION THAT THE LD CIT(A) HAS MECHANICALLY APPROVED THE LEVY OF PENALTY LEVIED BY THE AO. 3 IT(SS) NO. 48/MUM/2009 SHRI AMIT R PATEL 5 WE HAVE HEARD THE LD DR ALSO. 6 ON PERUSAL OF THE ORDER OF THE LD CIT(A) WHICH I S PASSED EX-PARTE IN OUR OPINION THERE IS NO JUSTIFICATION TO SUPPORT TH E SAME FOR THE REASONS THAT THE LD CIT(A) SHOULD HAVE GIVEN FURTHER OPPORTUNITY TO THE ASSESSEE; AS ADMITTEDLY THE ASSESSEE HAS APPEARED AND SOUGHT FO R THE ADJOURNMENT. WE THEREFORE CONSIDER IT FIT TO SET ASIDE THE ORDER O F THE LD CIT(A) AND RESTORE THE ENTIRE MATTER TO HIS FILE FOR FRESH ADJUDICATION AS PER PROVISIONS OF LAW AND AFTER CONSIDERING THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AND ALSO GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THE 30 TH DAY OF JULY 2010. SD/- SD/- ( P M JAGTAP ) ACCOUNTANT MEMBER (R S PADVEKAR ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 30 TH JULY 2010 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI