MANISH TIBREWALA, MUMBAI v. ACIT 14(2), MUMBAI

ITSSA 74/MUM/2009 | misc
Pronouncement Date: 25-03-2011 | Result: Allowed

Appeal Details

RSA Number 7419916 RSA 2009
Assessee PAN ADPPT6048M
Bench Mumbai
Appeal Number ITSSA 74/MUM/2009
Duration Of Justice 1 year(s) 8 month(s) 11 day(s)
Appellant MANISH TIBREWALA, MUMBAI
Respondent ACIT 14(2), MUMBAI
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 25-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 25-03-2011
Assessment Year misc
Appeal Filed On 14-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI R.S. SYAL (AM) AND SMT. ASHA VIJAYARAGH AVAN (JM) IT(SS)A NO. 74 /MUM/2009 BLOCK PERIOD- 1991-92 TO 2001-02 SHRI MANISH TIBREWALA MOHANLAL JAIN & CO. CAS 10 CHARTERED HOUSE GR. FLOOR DR. C.H. STREET MARINE LINES MUMBAI PAN-ADPPT 6048M VS. THE ACIT 14(2) EARNEST HOUSE NARIMAN POINT MUMBAI-400 021 (APPELLANT) (RESPONDENT) IT(SS)A NO. 75 /MUM/2009 BLOCK PERIOD- 1991-92 TO 2001-02 LATE SURESH KUMAR TIBREWALA MOHANLAL JAIN & CO. CAS 10 CHARTERED HOUSE GR. FLOOR DR. C.H. STREET MARINE LINES MUMBAI PAN-ADPPT 6048M VS. THE ACIT 14(2) EARNEST HOUSE NARIMAN POINT MUMBAI-400 021 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AJIT SHETTY RESPONDENT BY: SHRI HARI GOVIND SINGH O R D E R PER ASHA VIJAYARAGHAVAN (JM) THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST THE ORDERS DATED 15.6.2009 PASSED BY THE LD. CIT(A)-XIV FOR THE BLOCK PERIOD 1991092 TO 2001-02. AS THESE APPEALS WERE HEARD TOG ETHER AND INVOLVE ITA NOS. 74 & 75/M/09 2 CONNECTED ISSUES BOTH OF THESE APPEALS ARE BEING D ISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. IT (SS)A NO. 74/MUM/2009 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A N INDIVIDUAL ENGAGED IN THE ANGADIA BUSINESS/COMMISSION/BROKERAGE. A NO TICE U/S. 158BD R.W.S. 158BC WAS ISSUED AND SERVED ON THE ASSESSEE ON 8.10.2003 ASKING THE ASSESSEE TO FILE THE RETURN IN PRESCRIBE D FORM 2B. THE ASSESSEE FILED HIS RETURN IN FORM 2B ON 22.10.2003 DECLARING UNDISCLOSED INCOME FOR THE BLOCK PERIOD AT NIL. A NOTICE U/S. 142(1) DT. 10.11.2003 WAS ISSUED ON 10.11.2003 AND AGAIN ON 20 .7.2005. FINALLY THE ASSESSMENT WAS COMPLETED U/S. 143(3) R.W.S. 158 BC AND 158BD OF THE I.T. ACT ON 5.10.2005 BY DETERMINING TOTAL INCO ME AT RS. 11 75 000/- WHILE DETERMINING THIS INCOME THE ASSESSING OFFIC ER MADE ADDITION ON PROTECTIVE BASIS. THE AO HELD THAT SINCE THE ASSESS MENT PROCEEDINGS ARE GETTING TIME BARRED BY LIMITATION ON 31.10.2005 TH E OFFICE IS CONSTRAINED TO COMPLETE THE ASSESSMENT ON THE BASIS OF EVIDENCE /MATERIAL ON RECORD AS THE ASSESSEE HAS BEEN GIVEN FOUR OPPORTUNITIES T O FILE THE DETAILS/PRODUCE BOOKS OF ACCOUNTS AND THE ONLY ISSU E INVOLVED IS THE CASH SEIZED OF RS. 11 75 000/- AT HYDERABAD. THE AO COMPLETED THE ASSESSMENT EX-PARTE. 3. ON FURTHER APPEAL BEFORE THE LD. CIT(A) THE LD. CIT(A) HELD AS FOLLOWS: VARIOUS NOTICES FOR HEARING ISSUED AND NUMBER OF ADJOURNMENTS GRANTED AS PER THE ORDER SHEET ENTRIES . SINCE SUFFICIENT OPPORTUNITY OF BEING HEARD HAVING BEEN A LLOWED TO THE ASSESSEE WHICH HAVE NOT BEEN AVAILED OF BY IT THE APPEAL FILED IS BEING DISPOSED OFF ON THE BASIS OF MATERIAL AVAILAB LE ON RECORD AND ON MERIT. ITA NOS. 74 & 75/M/09 3 4. THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO I N INVOKING THE PROVISIONS OF SEC. 158BC R.W.S. 158BD AND ALSO CONF IRMED THE ADDITION OF RS. 11 75 000/- MADE TO THE RETURNED INCOME ON P ROTECTIVE BASIS. 5. AGGRIEVED ASSESSEE IS IN APPEAL BEFORE US AND H AS RAISED THE FOLLOWING GROUND AMONG OTHER GROUNDS OF APPEAL. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE HONBLE CIT(A) ERRED IN REJECTING OUR REQUEST F OR ADJOURNMENT AND THEREBY PASSING AN EXPARTE ORDER WI THOUT AFFORDING PROPER OPPORTUNITY TO THE APPELLANT AND T HAT TOO ON THE DAY OF HEARING AND THE REASONS ASSIGNED FOR DOI NG SO ARE WRONG AND CONTRARY TO THE PROVISIONS OF INCOME TAX ACT AND THE RULES MADE THEREUNDER. 6. WE FIND THAT BOTH AO AND LD. CIT(A) HAS PASSED E XPARTE ORDERS AND THEREFORE IN THE INTEREST OF JUSTICE WE REMIT T HE ISSUES TO THE FILE OF THE LD. CIT(A) TO GIVE REASONABLE OPPORTUNITY TO TH E ASSESSEE AND DECIDE THE CASE IN ACCORDANCE WITH LAW. IT (SS)A NO. 75/MUM/2009 BOTH THE SIDES ARE AGREEABLE THAT THE FACTS AND CI RCUMSTANCES OF THIS APPEAL ARE IDENTICAL TO THAT OF THE APPEAL IN IT(SS)A NO.74/MUM/2009 CONSIDERED AND DECIDED BY US IN THE ABOVE PARAGRAPHS. FOLLOWING THE VIEW TAKEN HEREINABOVE W E REMIT THE MATTER TO THE FILE OF THE LD. CIT(A) TO DECIDE THE ISSUE A FRESH AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ORDER PRONOUNCED ON THIS 25 TH DAY OF MARCH 2011 SD/- SD/- (R.S. SYAL) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 25 TH MARCH 2011 RJ ITA NOS. 74 & 75/M/09 4 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR B BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR I.T.A.T MUMBAI ITA NOS. 74 & 75/M/09 5 DATE INITIALS 1 DRAFT DICTATED ON: 21 . 0 3 .201 1 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 2 2 .0 3 .2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10 . DATE OF DISPATCH OF ORDER: _________ ______