Kaushalya R. Sampat v. ITO, 19(3)(2), Mumbai
[Citation -2016-LL-0915-21]

Citation 2016-LL-0915-21
Appellant Name Kaushalya R. Sampat
Respondent Name ITO, 19(3)(2), Mumbai
Court ITAT-Mumbai
Relevant Act Income-tax
Date of Order 15/09/2016
Assessment Year 2003-04
Judgment View Judgment
Keyword Tags reassessment proceedings • unexplained cash credit • barred by limitation • unexplained income • immovable property • ex-parte order
Bot Summary: PAN : AAQPS0609F. Assessee by Shri K.Gopal Revenue by : Shri A. Ramachandran Date of Hearing : 21-6-2016 Date of Pronouncement : 15-09-2016 O R D E R PER RAMIT KOCHAR, Accountant Member This appeal, filed by the assessee , being ITA No. 1839 Mum 2012, is directed against the appellate order dated 09th January 2012 passed by learned Commissioner of Income Tax- 30, Mumbai ), for the assessment year 2003-04, the appellate proceedings before the learned CIT(A) arising from the assessment order dated 22nd December 2010 passed by the learned Assessing Officer u s 144 read with Section 147 of the Income Tax Act,1961. On perusal of the impounded documents pertaining to the assessee as received from the ITO , Ward 19(3)(1), Mumbai, it was observed by the AO that copies of demand draft cheques issued in the name of the assesses to the aggregate value of Rs 51 lacs were found and impounded as per the details in 3 ITA 1839 Mum 2012 assessment order dated 22-12-2010 page1 which as per the AO are not reflected in the return of income filed by the assessee for the assessment year 2003-04. During Survey action on 12.09.2007, statement of Sh. Rajgopalchari Sampat , constituted attorney of the firm and husband of the assessee was recorded on oath on 12.09.2007 wherein said Sh. Rajgopalchari Sampat accepted that the above sum represents sales proceeds of immovable property and also that income earned from sale of this undisclosed house property at Bangalore was not offered for taxation by the assessee in the return of income filed with the Revenue. Accordingly notices u s 148 of the Act was issued to the assessee by the AO on 24-03-2010 which was served on the assessee on 25-03-2010. 7 ITA 1839 Mum 2012 A perusal of the aforementioned paras will reveal that it is not stated by Ld.CIT(A) that the last date on which the appeal of the assessee is decided ex-parte, the notice was duly served upon the assessee. 7.1 To ensure compliance on behalf of assessee, we direct the assessee to appear before Ld. CIT(A) on 22 1 2014. The assessee is directed to appear before the learned CIT(A) and file all necessary and relevant evidences and explanations in support of her contention with respect to all grounds of appeal raised by the 8 ITA 1839 Mum 2012 assessee in this appeal, which evidences and explanations shall be admitted by learned CIT(A) and adjudicated on merits in accordance with law.


IN INCOME TAX APPELLATE TRIBUNAL BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER . I.T.A. No.1839 Mum 2012 ( Assessment Year : 2003-04) Mrs. Kaushalya R. Sampat ITO, 1-A, Hill Top 19(3)(2) v. 49, Pali Hill Road Piramal Chambe rs Bandra(West), Lalb aug Mumbai-400 050 Mumbai 400 012. . PAN : AAQPS0609F ( Appellant) .. ( Respondent) Assessee by Shri K.Gopal Revenue by : Shri A. Ramachandran Date of Hearing : 21-6-2016 Date of Pronouncement : 15-09-2016 O R D E R PER RAMIT KOCHAR, Accountant Member This appeal, filed by assessee , being ITA No. 1839 Mum 2012, is directed against appellate order dated 09th January 2012 passed by learned Commissioner of Income Tax (Appeals)- 30, Mumbai (hereinafter called CIT(A) ), for assessment year 2003-04, appellate proceedings before learned CIT(A) arising from assessment order dated 22nd December 2010 passed by learned Assessing Officer (hereinafter called AO ) u s 144 read with Section 147 of Income Tax Act,1961 (Hereinafter called Act ). 2 ITA 1839 Mum 2012 2. grounds of appeal raised by assessee in memo of appeal filed with Income Tax Appellate Tribunal, Mumbai (hereinafter called Tribunal ) read as under:- 1. On facts and in circumstances of case and in law, learned C.I.T.(A) erred in dismissing appeal and that too without giving any opportunity of being heard in matter. 2. On facts and in circumstances of case and in law, learned CIT(A) erred in dismissing appeal and that too without appreciating fully and properly facts of case. 3. On facts and in circumstances of case and in law, learned CIT(A) erred in upholding validity of reassessment proceedings initiated by issuance of notice u s. 148 of I.T.Act. 4. On facts and in circumstances of case and in law, learned CIT(A) erred in upholding validity of assessment order passed u s. 144 r.w.s. 147 of I.T.Act. 5. On facts and in circumstances of case and in law , learned CIT(A) erred in confirming addition made of Rs.46 lacs as unexplained income u s 68 of I.T.Act. 6. On facts and in circumstances of case and in law, learned CIT(A) erred in dismissing grounds of appeal pertaining to charging of interest u s. 234A, 234B and 234C of I.T.Act 3. brief facts of case are that assessee is partner in firm M s Deccan Enterprises. Survey action was conducted u s 133A of Act by ITO Ward 19(3)(1), Mumbai in case of Deccan Enterprises on 12.09.2007 and as informed by said ITO to AO , certain incriminating documents and loose papers pertaining to assessee were found in premises of Deccan Enterprises during course of survey operations in which assessee was partner. On perusal of impounded documents pertaining to assessee as received from ITO , Ward 19(3)(1), Mumbai, it was observed by AO that copies of demand draft cheques issued in name of assesses (Loose paper file no A-4 , page 90-100) to aggregate value of Rs 51 lacs were found and impounded as per details in 3 ITA 1839 Mum 2012 assessment order dated 22-12-2010 page1 which as per AO are not reflected in return of income filed by assessee for assessment year 2003-04. During Survey action on 12.09.2007, statement of Sh. Rajgopalchari Sampat , constituted attorney of firm and husband of assessee was recorded on oath on 12.09.2007 wherein said Sh. Rajgopalchari Sampat accepted that above sum represents sales proceeds of immovable property and also that income earned from sale of this undisclosed house property at Bangalore was not offered for taxation by assessee in return of income filed with Revenue. Based on above facts , case of assessee for assessment year 2003-04 was reopened u s 147 of Act as per reasons recorded and with prior approval of Additional CIT vide approval dated 24-03-2010. Accordingly notices u s 148 of Act was issued to assessee by AO on 24-03-2010 which was served on assessee on 25-03-2010. assessee submitted that return of income of assesses filed u s. 139 of Act be treated as return of income filed u s. 148 of Act. Thereafter, several notices were issued u s. 142(1) of Act by AO requiring assessee to appear before AO in connection with reassessment proceedings u s. 147 148 of Act but there was no compliance on part of assesssee. On 06.12.2010 , Sh R.C.Sampat, husband of assessee appeared before AO and sought adjournment to 08-12-2010. Again on 08-12-2010 none appeared before AO. AO proceeded to frame ex-parte order u s. 144 of Act based on material on record, keeping in view matter being getting time barred by limitation . AO based on impounded copies of cheques during survey and statements recorded during survey action, made addition of Rs. 46,00,000 - towards cheques drafts received for sale of house property at Bangalore as no explanation was offered by assessee with respect to ownership of said property. Since one DD no 758280 for Rs. 5,00,000 - pertained to assessment year 2004-05 , no addition of said amount of Rs. 5 lacs was made during impugned assessment year out of copies of cheques DD of 4 ITA 1839 Mum 2012 Rs. 51 lacs impounded during assessment year and balance Rs. 46 lacs was added to income as income being unexplained cash credit u s 68 of Act vide ex-parte assessment order dated 22.12.2010 passed by AO u s 144 read with Section 147 of Act. 4. Aggrieved by ex-parte assessment order dated 22.12.2010 passed by AO u s. 143(3) read with Section 147 of Act, assessee filed first appeal before learned CIT(A) . assessee did not appear before learned CIT(A) despite several opportunities being given by learned CIT(A) and appeals was dismissed by learned CIT(A) based on material on record vide appellate order dated 09-01-2012 passed by learned CIT(A). 5. Aggrieved by appellate order dated 09-01-2012 passed by learned CIT(A) dismissing assessee appeal , assessee filed second appeal with Tribunal. 6. learned counsel for assessee contended before Tribunal that ex-parte appellate order has been passed by learned CIT(A) It was submitted that on similar facts, Tribunal has set aside and restored matter to file of learned CIT(A) for de-novo adjudication of appeal by affording one more opportunity to tax-payers for making submissions before learned CIT(A) on merits in ITA no. 1838 Mum 2012 and ITA no. 1840 Mum 2012 vide common order dated 24 10 2013 for assessment year 2003-04 in case of relatives of assessee namely Smt Rashmi Sampat and Sh Rajesh Sampat . It was prayed that one more opportunity be granted to assessee and issue matter may be set aside and restored to learned CIT(A) and assessee will present her case on merits before learned CIT(A) by filing all necessary and relevant evidences and explanations. learned DR relied upon orders of learned CIT(A) and submitted that in case of relatives of assessee as set out above , 5 ITA 1839 Mum 2012 matter was set aside by Tribunal to file of learned CIT(A) and on same basis , issue matter in this appeal may also be set aside and restore to file of learned CIT(A). 7. We have considered rival contentions and perused material on record. We have observed that on similar facts issue matter was restored to file of learned CIT(A) by Tribunal in ITA no. 1838 Mum 2012 and 1840 Mum 2012 vide common orders dated 24 10 2013 in case of relatives of assessee namely Smt Rashmi Sampat and Sh Rajesh Sampat by holding as under: 7. We have heard both parties and their contentions have carefully been considered. For sake of convenience we may reproduce relevant paras of orders of Ld. CIT(A) which state reasons for proceeding to decide appeals ex-parte: In case of Smt. Rashi Sampat: present appeal is directed against assessment order passed by ITO 19(3)(2), Mumbai u s. u s.144 r.w.s. 147 of I.T. Act, 1961 ) dated 22.12.2010. In this case first notice of hearing was issued on 23.8.2011 fixing case for hearing on 14.9.2011 at 11.45 AM. However, in response to this notice neither anybody attended nor any adjournment was sought. Therefore, another notice dated 11.10.2011 was issued fixing case for hearing on 1.11.11 at 11.30 AM. In response to this notice also neither anybody attended nor any adjournment was sought. This being so notice dated 28.11.11 was issued fixing case for hearing on 15.12.2011 at 12 PM. However, as usual neither anybody attended nor any adjournment was sought. 6 ITA 1839 Mum 2012 2.1 From above it becomes clear that appellant is not interested in pursuing her appeal and therefore appeal of appellant is decided exparte on basis of material available on record. appellant has raised various grounds of appeal which are as under: In case of Shri Rajesh Sampat: 2.1. In this case, first notice of hearing was issued on 09-09-20 11 fixing case for hearing on 27-09-2011 at 3.00 P.M. This notice was duly served on appellant. However, in response to this notice, neither anybody attended nor any adjournment was sought. Therefore, another notice dated 29-09-2011, fixing case for hearing on 19-10-2011 at 12. P.M. was issued. There was no compliance to this notice also as neither anybody attended nor any letter for adjournment was filed. Therefore, another notice dated 19-10-2011 was issued fixing 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 being so, final notice of hearing dated 21-11-2011 was issued fixing case for hearing on 29-11-2011 at 3.45 P.M. However as usual neither anybody attended in response to this notice nor any adjournment was sought. Under circumstances, it becomes quite clear that appellant is not interested in pursuing his appeal and therefore, appeal of appellant is decided ex-parte on basis of material available on record. At this juncture, it will not be out of place to mention that same kind of non-cooperation non- compliance was shown by appellant during assessment proceedings also which resulted in passing ex-parte order u s. 144 r.w.s. 147 of I.T. Act. 7 ITA 1839 Mum 2012 perusal of aforementioned paras will reveal that it is not stated by Ld.CIT(A) that last date on which appeal of assessee is decided ex-parte, notice was duly served upon assessee. Therefore, according to facts of present case it can be presumed that on last date of hearing notice issued by Ld. CIT(A) was not duly served upon respective assessees. Taking into consideration such fact, we are of opinion that it would serve interest of justice if matter is restored back to file of Ld. CIT(A) with direction to re- adjudicate these appeals in accordance with law after giving both assessees reasonably opportunity of hearing. We order accordingly. 7.1 To ensure compliance on behalf of assessee, we direct assessee to appear before Ld. CIT(A) on 22 1 2014. Ld. AR of assessee has duly noted said date and he ensured compliance of directions. 7.2 Since we are disposing of these appeals on basis of ground No.1, which is regarding non-grant of opportunity of hearing, we do not consider it necessary to go into other grounds as both appeals in their entirety are being restored back to file of Ld. CIT(A) with direction to re-adjudicate same as per law in manner aforesaid. We have observed that facts in instant appeal are almost similar as to appeal in case of relatives of assessee Mrs. Rashmi Sampat(Supra) and Mr. Rajesh Sampat(supra) , and in our considered view , interest of justice will be best served in instant appeal if all matter issues in this appeal are also set aside and restored to file of learned CIT(A) for de-novo adjudication of issues in this appeal of assesssee on merits in accordance with law. assessee is directed to appear before learned CIT(A) and file all necessary and relevant evidences and explanations in support of her contention with respect to all grounds of appeal raised by 8 ITA 1839 Mum 2012 assessee in this appeal, which evidences and explanations shall be admitted by learned CIT(A) and adjudicated on merits in accordance with law. learned CIT(A) shall grant proper and adequate opportunity of being heard to assessee in accordance with principles of natural justice in accordance with law. We order accordingly. 8. In result, appeal filed by assessee in ITA No. 1839 Mum 2012 is allowed for statistical purposes. Order pronounced in open court on 15th September, 2016. 15 -09-2016 Sd - sd - (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated 15-09-2016 . . . R.K., Ex. Sr. PS Copy of Order forwarded to : 1. Appellant 2. Respondent. 3. ( ) CIT(A)- concerned, Mumbai 4. CIT- Concerned, Mumbai 5. , , DR, ITAT, Mumbai Bench 6. Guard file. BY ORDER, True Copy (Dy. Asstt. Registrar) , ITAT, Mumbai Kaushalya R. Sampat v. ITO, 19(3)(2), Mumbai
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