RUKHMINI SOFTWARE P.LTD, MUMBAI V. ITO 7(2)(1), MUMBAI

CO 271/MUM/2014

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2552 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 15-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 26-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3); 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH , MUMBAI BEFORE SRI MAHAVIR SINGH, JM AND SRI RAJESH KUMAR , AM ITA NO . 5349 /MUM/201 3 (A.Y: 2008 - 09 ) INCOME TAX OFFICER 7(2) (1 ) ROOM NO. 670, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 VS. M/S RUKHMIN I SOFTWARE P. LTD. 208, CORPORATE CENTRE, 2 ND FLOOR, OPP. HOTEL SUN - SHEEL, S.V. ROAD, ANDHERI (EAST), MUMBAI - 400012 APPELLANT .. RESPONDENT CO NO.271/MUM/2014 ( IN ITA NO. 5349/MUM/2013 A.Y:2008 - 09) M/S RUKHMINI SOFTWARE P. LTD. 208, CORPORATE CENTRE, 2 ND FLOOR, OPP. HOTEL SUN - SHEEL, S.V. ROAD, ANDHERI (EAST), MUMBAI - 400012 PAN NO.AADCR0412M VS. INCOME TAX OFFICER 7(2) (1) ROOM NO. 670, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 APPELLANT .. RESPONDENT REVENUE BY .. SHRI ANU K. AGGARWAL, ADDL. CIT ASSESSEE B Y .. SHRI M.R. MEHWALA, AR DATE OF HEARING .. 15 - 11 - 2016 DATE OF PRONOUNCEMENT .. 15 - 11 - 2016 O R D E R PER MAHAVIR SINGH , JM : ONE APPEAL BY THE REVENUE AND CO BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF CIT (A) - 13 , MUMBAI IN APPEAL NO. CIT (A) 1 3/RG. (2)(1)/APL.293/2010 - 11 DATED 17 - 05 - 2013 . THE ASSESSMENT WAS FRAMED BY ITO 7(2)(1), MUMBAI FOR THE A . Y . 20 0 8 - 0 9 VIDE HIS ORDER DATED 20 - 12 - 2010 U /S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AS REGARD TO THE ORDER OF CIT (A) DELETING THE DISALLOWANCE OF 12% OF NATIONAL INTEREST ON INTEREST FREE SECURITIES WITHOUT PROPERLY APPRECIATING THE FACTS. 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE FIRST OF ALL TOOK US THROUGH THE ORDER OF CIT(A) WHEREI N, THIS ISSUE IS DECIDED AT PARA 5.2 BY OBSERVING AS UNDER: - ITA NO.5349/MUM/2013 CO NO.271/MUM/2014 2 5.2 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE. THIS ISSUE IS ALSO COVERED BUT IN FAVOUR OF APPELLANT BY APPEAL ORDER OF A.Y. 2007 - 08. FOLLOWING THE APPEAL ORDER OF A.Y. 2007 - 08, IT IS H ELD THAT THE NATIONAL INTEREST ON INTEREST FREE SECURITY DEPOSIT WAS NOT REQUIRED TO BE CONSIDERED FORMING PART OF ANNUAL VALUE OF PROPERTY. THE ADDITION MADE BY THE AO IS THEREFORE, DELETED. THIS GROUND OF APPEAL IS THEREFORE, ALLOWED. 4. LD. SENIOR DR. ARG UED THAT IN THE IMMEDIATE PRECEDING YEAR THE TRIBUNAL HAS SET ASIDE THE APPEAL IN ITA NO. 1438/M UM /2013 FOR THE A.Y. 2007 - 2008 VIDE ITS ORDER DATED 08 - 09 - 2014 BY OBSERVING AS UNDER: - WE HEARD THE LD. DR AND PERUSED THE RECORD. WE NOTICE THAT THE ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A) ALSO AND HENCE, THE FIRST APPELLATE AUTHORITY HAS PASSED THE ORDER EX - PARTE. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS ALSO CONTENDED THAT THE LD. CIT(A) HAS PASSED THE ORDER IN VIOLATION OF PRINCIPLE OF NATURAL JUSTI CE. THOUGH THE LD. DR VEHEMENTLY ARGUED BEFORE US THAT THE LD. CIT(A) HAS DECIDED THE ISSUES ON MERITS BY PASSING A SPEAKING ORDER, YET, IN OUR VIEW, THE ASSESSEE SHOULD HAVE BEEN GIVEN ADEQUATE OPPORTUNITY BY LD CIT(A) IN ORDER TO PRESENT HIS CASE ON THE MATTERS AGITATED BEFORE HIM. SINCE, THE ASSESSEE WAS NOT GIVEN THE ADEQUATE OPPORTUNITY, WE ARE OF THE CONSIDERED VIEW THAT ALL THE ISSUES SHOULD BE DECIDED AFRESH BY THE LD. CIT(A) AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORD INGLY, WE SET ASIDE THE IMPUGNED ORDER AND RESTORE ALL THE ISSUES TO HIS FILE WITH A DIRECTION TO CONSIDER THEM AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THEM IN ACCORDANCE WITH LAW . IN VIEW OF THE ABOVE , LD. SE NIOR DR. STATED THAT CIT (A) HAS RELIED ON THE ORDER OF LAST YEAR I.E. A.Y.2007 - 2008, WHICH EVENTUALLY WAS SET ASIDE TO THE FILE OF THE CIT (A) BY THE TRIBUNAL. IN VIEW OF THESE FACTS LD. SENIOR DR. URGED THE BENCH TO SET ASIDE THIS ISSUE TO THE FILE CIT(A ) FOR FRESH ADJUDICATION. ON THIS LD. COUNSEL FOR THE ASSESSEE ALSO AGREED. AFTER HEARING BOTH THESE SI D ES AND GOING THROUGH THE FACTS , WE RESTORE BACK THE ISSUE TO THE FILE OF AO ON THE SAME DIRECTIONS AS RESTORE BY TRIBUNAL IN ASSESSEE S OWN CASE FOR IMM EDIATE PRECEDING YEAR I.E. A.Y. 2007 - 2009 VIDE ITA NO. 1438/MUM/2013 VIDE ORDER DATED 08 - 09 - 2014. RESPECTFULLY, FOLLOWING THE SAME , WE RESTORE THIS ISSUE BACK TO THE FILE OF THE CIT (A) EXACTLY ON SAME DIRECTION. 5. COMING TO THE CROSS OBJECTION OF THE ASSES SEE, WHICH IS SUPPORTIVE OF THE ORDER OF CIT(A), THE SAME IS ALSO RESTORED BACK TO THE FILE OF THE CIT (A). ITA NO.5349/MUM/2013 CO NO.271/MUM/2014 3 6. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CO OF THE ASSESSEE BOTH ARE DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 15 - 11 - 2016 . BY ORDER, ASSISTANT REGISTRAR ITAT, MUMBAI S D/ ( RA JESH KUMAR ) ACCO U NTANT MEMBER MUMBAI, DATED: 15 - 11 - 2016 SUDIP SARKAR /SR.PS S D/ ( MAHAVIR SINGH ) JUDICIAL MEMBER COPY OF THE ORDE R FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT (A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//