ZARIN RUSHI MOTIWALA, MUMBAI V. ITO WD 25(1)(5), MUMBAI

CO 113/MUM/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 3158 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 04-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 12-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITRA
• Assessee Lawyers: S S AGARWAL
• Keywords: Opportunity of being heard
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO. 1025/MUM/2017 : A.Y : 2006 - 07 ITO, WARD - 25(1)(5), MUMBAI (APPELLANT) VS. MRS. ZARIN RUSHI MOTIWALA L/R DR. R.C. MISHRA 12 - A GREATER BOMBAY HOUSING SOCIETY, GULMOHAR ROAD, JVPD SCHEME, MUMBAI 400 058. PAN : AAOPM7866J (RESPONDENT) CO NO. 113/MUM/2017 : A.Y : 2006 - 07 MRS. ZARIN RUSHI MOTIWALA L/R DR. R.C. MISHRA 12 - A GREATER BOMBAY HOUSING SOCIETY, GULMOHAR ROAD, JVPD SCHEME, MUMBAI 400 058. (CROSS OBJECTOR) PAN : AAOPM7866J VS. ITO, WARD - 25(1)(5), MUMBAI (RESPONDENT) ASSESSEE BY : SHRI S.S. AGARWAL REVENUE BY : SHRI S.K. MITRA DATE OF HEARING : 04/09/2017 DATE OF PRONOUNCEMENT : 04/09/2017 O R D E R THE CAPTIONED APPEAL BY THE REVENUE AND CROSS - OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF CIT(A) - 39 , MUMBAI DATED 11.11.2016 , PERTAINING TO ASSESSMENT YEAR 2006 - 07 , WHICH IN TURN HAS ARISEN FROM THE ORDER DATED 28.03.2014 PASSED BY THE ASSE SSING OFFICER 2 MRS. ZARIN RUSHI MOTIWALA ITA 1025/MUM/2017 & CO 113/MUM/2017 UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN BRIEF, THE RELEVANT FACTS ARE THAT THE ASSESSING OFFICER COMPLETED AN ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT DATED 28.3.2014 WHEREBY THE TOTAL INCOME WAS ASSESSED AT RS.37,01,290/ - AS AGAINST THE RETURNED INCOME OF RS.10,80,690/ - . IN APPEAL BEFORE THE CIT(A), ASSESSEE HAS RAISED VARIOUS GROUNDS, INTER - ALIA , CHALLENGING THE VALIDITY OF THE NOTICE ISSUED U/S 148 OF THE ACT. THE CIT(A) NOTED THAT THE NOTICE U/S 148 OF THE ACT WAS ISSUED ON 21.3.2011 AND IN VIEW THEREOF, ACCORDING TO HIM, THE ASSESSME NT ORDER PASSED BY THE ASSESSING OFFICER ON 28.3.2014 WAS BARRED BY LIMITATION PRESCRIBED IN SEC. 153 OF THE ACT. ACCORDINGLY, HE TREATED THE IMPUGNED ASSESSMENT ORDER AS VOID - AB - INITIO . HAVING HELD THE ASSESSMENT AS VOID - AB - INITIO , THE CIT(A) DID NOT AD JUDICATE ANY OF THE OTHER GROUNDS RAISED BY THE ASSESSEE. 3. NOW, BEFORE US THE LD. DR FOR THE REVENUE HAS POINTED OUT THAT THE DATE OF NOTICE U/S 148 OF THE ACT NOTED BY THE CIT(A) AS 21.3.2011 IS WRONG DUE TO THE TYPOGRAPHICAL ERROR IN PARA 1 OF THE ASS ESSMENT ORDER. THE LD. DR FURNISHED COPY OF THE NOTICE ISSUED U/S 148 OF THE ACT , WHICH IS DATED 21.3.2013 . ON THIS BASIS , IT IS SOUGHT TO BE CANVASSED THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER ON 28.3.2014 WAS THUS WITHIN THE PERIOD OF L IMITATION PRESCRIBED AND, THEREFORE, THE IMPUGNED ORDER OF THE CIT(A) DESERVES TO BE SET - ASIDE. 4. ON THE OTHER HAND, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE HAS NOT DISPUTED THE FACTUAL MATRIX BROUGHT OUT BY THE LD. DR, BUT 3 MRS. ZARIN RUSHI MOTIWALA ITA 1025/MUM/2017 & CO 113/MUM/2017 POINTED OUT, BY REFERRING TO THE CROSS - OBJECTION FILED, THAT THE CIT(A) HAS NOT ADDRESSED ANY OF THE OTHER ISSUES RAISED BEFORE HIM. 5. HAVING REGARD TO THE RIVAL STANDS, IN MY VIEW, IT IS QUITE OBVIOUS THAT THE CIT(A) PROCEEDED ON A WRONG PRESUMPTION THAT NOTICE U/S 148 OF THE AC T WAS ISSUED ON 21.3.2011. IN VIEW OF THE AFORESAID, THE DECISION OF THE CIT(A) IN TREATING THE ASSESSMENT ORDER DATED 28.3.2014 AS BARRED BY LIMITATION CANNOT BE ACCEPTED. THUS, ON THIS ASPECT, THE ORDER OF CIT(A) IS REVERSED. SO HOWEVER, IT IS DISCERN I BLE FROM THE ORDER OF THE CIT(A) THAT HE HAS NOT TOUCHED UPON ANY OF THE OTHER GROUNDS RAISED BY THE ASSESSEE BEFORE HIM. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, I DEEM IT FIT AND PROPER TO SET - ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTE R BACK TO HIS FILE FOR A DE NOVO ADJUDICATION ON THE GROUNDS RAISED BY THE ASSESSEE BEFORE HIM. NEEDLESS TO MENTION, THE CIT(A) SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD AND ONLY THEREAFTER ADJUDICATE THE GROUNDS RAISED BEFORE HIM AFRESH, AS PER LAW. 6. IN VIEW OF THE AFORESAID, THE APPEAL OF THE REVENUE IS ALLOWED AND THE CROSS - OBJECTION FILED BY THE ASSESSEE IS RENDERED ACADEMIC AND IS HEREBY DISMISSED. THE ABOVE DECISION WAS PRONOUNCED IN THE PRESENCE OF BOTH THE PARTIES AT T HE CONCLUSION OF THE HEARING ON 4 TH SEPTEMBER , 2017. SD/ - ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 4 T H SEPTEMBER , 201 7 *SSL* 4 MRS. ZARIN RUSHI MOTIWALA ITA 1025/MUM/2017 & CO 113/MUM/2017 COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, SMC BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI