Naresh K. Pahuja vs Income Tax Appellate Tribunal and Others

Rule. Rule returnable forthwith. Respondents waive service. By consent of the parties, petition is taken up for final hearing forthwith.

The petitioner is aggrieved by the rejection of his miscellaneous application arising out of ITA No. 3527/Mum/2003 by the Income Tax Appellate Tribunal, ''J'' Bench, Mumbai (''the Tribunal'' for short) on 10th July, 2007 [reported as (2008) 115 ITD 137 ].

The petitioner had filed his return of income for the asst. yr. 1995-96 u/s 139(1) of the IT Act, 1961 (''the Act'' for short) declaring total income of Rs. 59,050 which was processed and accepted u/s 143(1)(a) of the Act without any adjustment. During the year under consideration the petitioner had received three gifts. The said gifts were credited to the petitioner''s capital account. The business premises of the petitioner were subsequently surveyed u/s 133A and the statements of the petitioner and donor Mr. Kishan Punjabi were recorded.

The AO issued notice u/s 148 of the Act in response to which the petitioner filed his return of income on 20th Sept., 1999 declaring the same income. The petitioner filed certain documents to substantiate the gifts. The AO however made an addition u/s 68 of the said Act in respect of the aforesaid gifts.

The petitioner carried an appeal to the Tribunal. By order dt. 10th July, 2007 the Tribunal dismissed the petitioner''s appeal. As the order of the Tribunal suffered from various mistakes apparent on record the petitioner filed M.A. No. 730/Mum/2007 paying for rectification of mistakes. By the impugned order the said application was dismissed. The main grievance of the petitioner before the Tribunal was that the Tribunal relied upon certain judgments of which the petitioner had no notice. They were not cited by the Departmental Representative. The Tribunal also did not indicate that it was relying on those judgments. The petitioner is particularly aggrieved by the reliance placed on the Supreme Court''s judgment in Commissioner of Income Tax Vs. P. Mohanakala, . According to the petitioner, no opportunity was given to him to explain how the said judgment is not applicable to the facts of the case. The petitioner is also aggrieved by the fact that the statement of the donor Mr. Punjabi dt. 9th Aug., 1999 was not considered by the Tribunal.

Learned Counsel for the petitioner reiterated the same grievance. We find substance in his submission. In view of the fact that the impugned judgment is delivered without taking into consideration the donor''s statement, we deem it proper to set aside the order and remand the application to the Tribunal with direction to decide it afresh after hearing the parties in accordance with law. Order accordingly.

We make it clear that we have not expressed our opinion on the merits of the case and the Tribunal shall hear and dispose of the matter independently.

Rule is made absolute in the above terms with no order as to costs.

Petition is disposed of accordingly.