Ashopk H Rajwani , Kalyan vs Department Of Income Tax

आयकर अपील य अ धकरण, मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES "A" MUMBAI सव ी आय.पी. बंसल, या यक सद य एवं ी राजे , लेखा सद य BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND

SHRI RAJENDRA, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.1997/MUM/2010 नधा रण वष /Assessment Year 2006-07 The ACIT, Cir.2, बनाम/ Shri Ashok H Rajwani, Kalyan. Prop.H.J..Enterprises, Vs. Ulhasnagar - 3. थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AEPPR 3288Q

(अपीलाथ /Appellant) .. ( यथ / Respondent)

Appellant by Shri Asghar Zain Respondent by None सनु वाई क तार"ख / Da te o f Hearing : 03/06/2015 घोषणा क तार"ख /Date of Pronouncement : 03/06/2015

आदे श / O R D E R

PER I.P.BANSAL, J.M:

This is an appeal filed by the Revenue and it is directed against order passed by Ld. CIT(A)-II, Thane dated 5/12/2009 for assessment year 2006-

07. Grounds of appeal read as under:

1) Whether on the facts and in the circumstances of the case and in law the learned CIT (A)- II, Thane, erred in cancelling the penalty levied u/s. 271(1)(c) of the I.T. Act without considering the fact that had the survey not conducted, the assessee would not have disclosed the additional income on account of unsecured loans received from several persons including his employees.

2) Whether on the facts and in the circumstances of the case and in law the learned CIT (A)- II, Thane, erred in without going into the merits of the case that the assessee had neither proved the creditworthiness of the loan creditors nor genuineness of the transaction during the course of survey action u/s. 133A of the I.T. Act as well as during the scrutiny proceedings.

2 आयकर अपील सं. / ITA No.1997/MUM/2010 नधा रण वष /Assessment Year 2006-07

2. This appeal was earlier fixed on various dates, however, on none of dates the assesse has attended the hearing. On various dates Ld. DR was directed to serve notice on the assessee. Reference in this regard can be made to the following dates:

06/01/2011, 21/03/2012, 20/08/2013 and 26/2/2015.

2.1 Lastly, the present appeal was fixed on 03/06/2015 and none was present on behalf of the assessee. However, Ld. DR submitted a letter received by him from AO, which is dated 1/6/2015. The AO had deputed the Inspector for service of notice on the assessee and Inspector has reported that he has visited the residential address of the assessee and it was found that his residence was closed. He further found that assessee had left the premises 5 to 6 years ago and on further enquiry in the vicinity, it was found that the bungalow was sold through auction by Bank. It was further mentioned by the Inspector that the present whereabouts of the assessee is not traceable.

3. After placing aforementioned letter on record Ld. DR submitted that Department may be given further opportunity to serve notice on assessee.

4. We have carefully considered the submissions of Ld. DR. In view of the facts narrated by the Inspector, which have been noted above, we are of the opinion that giving one more opportunity to Ld. DR to serve notice on the assessee would also not serve any useful purpose. Therefore, we decline to accept such submission of Ld. DR. However, keeping in view the request of Ld. DR, we are of the opinion that the appeal filed by the Revenue cannot be adjudicated without giving the assessee a reasonable opportunity of hearing.

Since notice cannot be served upon the assessee, we dismiss the present appeal filed by the Revenue and provide liberty to the Revenue to seek recall of 3 आयकर अपील सं. / ITA No.1997/MUM/2010 नधा रण वष /Assessment Year 2006-07

this order in case Revenue is able to trace the assessee and is able to serve notice upon him. With these observations we dismiss Revenue's appeal.

5. In the result, the appeal filed by the Revenue is dismissed.

Order pronounced in the open court on 03/06/2015 आदे श क घोषणा खुले यायालय म) *दनांकः 03/06/2015 को क गई ।

Sd/- sd/- ( राजे , / RAJENDRA) (आय.पी. बंसल / I.P. BANSAL) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मुंबई Mumbai; *दनांक Dated 03/06/2015 आदे श क त ल प अ!े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. आयकर आयु.त(अपील) / The CIT(A)- 4. आयकर आय. ु त / CIT 5. /वभागीय त न1ध, आयकर अपील"य अ1धकरण, मंब ु ई / DR, ITAT, Mumbai 6. गाड फाईल / Guard file.

आदे शानुसार/ BY ORDER, स या/पत त //True Copy//

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai व. न.स./Vm, Sr. PS