Income Tax Appellate Tribunal - Mumbai
Mohd. Ayub Mustafa Hussain Shaikh, ... vs Income Tax Officer, Ward 4 (1), Thane on 23 April, 2018
IN THE INCOME TAX APPELLATETRIBUNAL, BENCH "A" MUMBAI
BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND
SHRI PAWAN SINGH, JUDICIAL MEMBER
ITA No.6751 /Mum/2017 (Assessment Year- 2009-10)
Mohd Ayub Mustafa Hussain Income Tax Officer,
Shaikh, C/o M/s VSS & Associates, Ward (4), Ashar IT Park,
Chartered Accountants, Thane.
306, Dalamal Chambers, Vs.
New Marine Lines,
Mumbai 400020
PAN: BAQPS6351H
(Appellant) ( Respondent)
Assessee by : Shri Prakash Jhunjhunwala (AR)
Revenue by : Shri Saurabh Kumar Rai (DR)
Date of hearing : 23.04.2018
Date of Pronouncement : 23.04.2018
Order Under Section 254(1) of Income Tax Act
PER PAWAN SINGH, JUDICIAL MEMBER:
1. This appeal by assessee under section 253 of Income tax Act is directed against the order of Commissioner (Appeals)-3, Thane, dated 15th September 2017 for assessment year 2009-10, which in turn arises from the assessment order passed under section 144 read with section 147 dated 20th March 2015. The assessee has raised following grounds of appeal;
(1) On the facts and circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the order passed under section 144 read with section 147 of the Income tax Act, which is against the principle of natural Justice.
(2) On the facts and circumstances of the case and in law, the learned Commissioner (Appeals) erred in confirming the addition of Rs.63,00,000/- being unexplained investment is without considering the ITA No. 6751/M/2017- Mohd Ayub Mustafa Hussain Shaikh facts of the case that the said investment have already been disclosed in the partnership firm.
2. Brief facts of the case are that assessee has not filed return of income for assessment year 2009-10. The assessing officer issued notice under section 148 on the basis of information received from ITO Ward-15(3)(3) dated 31st January 2013, that assessee has purchased immovable property valued at Rs. 30 lakhs and more. Therefore, notice under section 143(2) was issued to the assessee to attend the proceeding on 05 November 2014 and again on 26th November 2014, however, neither the assessee attended the proceedings before assessing officer not furnished any written submission. The assessing officer issued notice under section 133(6) to the Sub- Registrar on 5th February 2014 to furnish the copy of the sale deed. On the basis of information furnished by Sub-Registrar, in response to notice under section 133(6), the assessing officer came to know that assessee purchased two properties for Rs. 40 lakhs and 23 lakhs on 22nd August 2008. Since, the assessee neither appeared before the assessing officer nor furnished any explanation the assessing officer therefore completed the assessment under section 144 read with section 147 of the Act. The assessing officer while framing assessment order made the addition of Rs. 63 lakhs as unexplained investment. On appeal before Commissioner (Appeals) the action of assessing officer was confirmed. Thus, further aggrieved by the order of Commissioner (Appeals) the assessee has filed present appeal before us.
3. We have heard learned AR of the assessee and learned DR for the revenue and perused the material available on record. At the outset of the hearing the learned AR for the assessee submits that he is not pressing ground No.1. Considering the submission of learned AR of the assessee the ground No.1 of the appeal is dismissed as not pressed.
2 ITA No. 6751/M/2017- Mohd Ayub Mustafa Hussain Shaikh4. Ground No.2 relates to addition of Rs. 63 lakhs as unexplained investment. The learned AR of the assessee submits that the assessee has already disclosed the investment in his partnership firm namely Best Developers. The learned AR further submits that the assessee could not appear before the assessing officer as well as before first appellate authority. The reasons for non-appearance before the assessing officer were that assessee has shifted his residence from Thane to his Home Town in Sant Kabir Nagar, Uttar Pradesh. The business of the partnership firm was closedown because of dispute among the partners of the firm. The notice of appeal before Commissioner (Appeals) was received for 14th August 2017. The assessee appointed Shri Sanjay Jain CA to represent him before the appellate authority. Shri Sanjay Jain CA sought adjournment on 24th August 2017 and the appeal was adjourned for 14th September 2017. On 14th September 2017 his representative could not attend the hearing due to his ill health and attended the hearing on 15th September, on the day he was informed that appeal has been dismissed. Before the lower authorities the assessee could not furnish certain relevant document during the assessment as well as before first appellate estates. The assessee has filed the documentary evidences in the form of additional evidence. The learned AR submits that the evidences furnished by assessee are relevant for proper adjudication of the issues involved in the present appeal. The learned AR prayed that matter may be restored to the file of assessing officer for passing the assessment order afresh after considering the submission of the assessee and the documentary evidences furnished by assessee.
5. On the contrary the learned DR for the revenue supported the order of authorities below. The learned DR further submits that the assessee did not appear before the lower authority intentionally and deliberately. The assessee has no case on merit and the investment in properties which has 3 ITA No. 6751/M/2017- Mohd Ayub Mustafa Hussain Shaikh been added as unexplained investment has not been shown by assessee in the assessment of his form as well.
6. We have considered the rival submission of the parties and have gone through the orders of authorities below. There is no dispute that the assessee has not appeared before the assessing officer and again before the first appellate authority. The assessee has now filed affidavit for explaining the reasons for non-appearance before the first appellate authority. The assessee has filed his affidavit contending therein that he appointed Shri Sanjay Jain CA to represent him before the first appellate authority. Shri Sanjay Jain CA could not appear before the first appellate authority due to ill-health and the order was passed on the next day of the hearing. We have noted that assessee has filed an affidavit/application under Rule 29 of Income-tax Appellate Tribunal Rules, 1969, copy of Assessment Order of Best Developer (wherein the assessee is partner) for Assessment Year 2009-10 & 2010-11, acknowledgement, balance-sheet, stock register, ledger account and bank statement of Best Developers. The ld. AR of the assessee had argued that the assessee has shown the investment in the assessment of firm. Considering the peculiarity of the fact that all these documents were not filed before the lower authorities, in our view, the documentary evidence furnished by assessee is relevant for proper adjudication of issue raised by the assessee. Hence, we deem appropriate to restore the appeal to the file of Assessing Officer to examine the fact and the evidences furnished by assessee and pass the order in accordance with law. The Assessing Officer shall is directed to provide reasonable opportunity to the assessee. The assessee is also directed to fully cooperate with the authorities concerned and not to take the excuse of change of address for service of notice. The assessee is further directed to provide his address for service of notice to the 4 ITA No. 6751/M/2017- Mohd Ayub Mustafa Hussain Shaikh Assessing Officer. With these directions, the appeal of the assessee is allowed for statistical purpose.
7. In the result, appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open court on 23rd day of April 2018.
Sd/- Sd/-
(G.S. PANNU) (PAWAN SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai; Dated 23/04/2018
S.K.PS
Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT(A), Mumbai.
4. CIT
5. DR, ITAT, Mumbai
6. Guard file. ािपत ितC
BY ORDER
(Asstt.Registrar)
ITAT, Mumbai
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