KISHORE KULCHANDANI, MUMBAI V. ITO 17(2)(2), MUMBAI

ITA 1252/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0240 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 22-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR SINGH LD
• Assessee Lawyers: AMIT C JHAVERI LD
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 54

Judgement Text

ITA NO. 1252/MUM/2017 KISHORE KULCHANDANI ASSESSMENT YEAR: 2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE HONBLE SHRI PAWAN SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO.1252/MUM/2017 ( / ASSESSMENT YEAR: 2012-13 KIS HORE KULCHANDANI 2/B, GANGA VIHAR, 2 ND FLOOR 94, KAZI SAYED STREET MUMBAI-400 003. / VS. INCOME TAX OFFICER - 17(2)(2) MUMBAI-400 021. ./ ./PAN/GIR NO. AAKPK-8332-K ( /APPELLANT ) : ( !' / RESPONDENT ) ASSESSEE BY : AMIT C.JHAVERI- LD.AR REVENUE BY : MANOJ KUMAR SINGH-LD. DR / DATE OF HEARING : 13/11/2018 / DATE OF PRONOUNCEMENT : 05/12/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2012-13 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-28, MUMBAI [CIT(A)], APPEAL NO.CIT(A)-28/IT-307/ITO-17(2)(2)/2015-16 DATED 17/11/2016 QUA CONFIRMATION OF CERTAIN QUANTUM ADDITIONS ITA NO. 1252/MUM/2017 KISHORE KULCHANDANI ASSESSMENT YEAR: 2012-13 2 AGGREGATING TO RS.94.33 LACS. THE ASSESSEE BEING RESIDENT INDIVIDUAL WAS ASSESSED FOR IMPUGNED AY IN SCRUTINY ASSESSMENT U/S 143(3) ON 26/03/2015 WHEREIN THE INCOME OF THE ASSESSEE WAS D ETERMINED AT RS.111.14 LACS AFTER CERTAIN ADDITIONS AS AGAINST R ETURNED INCOME OF RS.16.80 LACS E-FILED BY THE ASSESSEE ON 21/03/2013. IN THE QUANTUM ASSESSMENT, THE ASSESSEE HAS BEEN DENIED DEDUCTION U/S 54 FOR RS.91.33 LACS. THE SECOND ADDITION OF RS.3 LACS REP RESENTS EXCESS INTEREST PAID TO THE FAMILY MEMBERS. THE STAND OF L D. AO, UPON CONFIRMATION BY FIRST APPELLATE AUTHORITY, IS UNDER APPEAL BEFORE US. 2. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [ AR], SHRI AMIT C.JHAVERI, DRAWING OUR ATTENTION TO THE IMPUGNED ORDER SUBMITT ED THAT THE SUFFICIENT OPPORTUNITY WAS NOT GRANTED TO THE A SSESSEE TO REPRESENT HIS CASE AND LD. FIRST APPELLATE AUTHORITY HAS SIMP LY CONFIRMED THE STAND OF LD. AO WITHOUT DUE APPLICATION OF MIND. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE [DR], SHRI MANOJ KUMAR SINGH, SUBMITTED THAT THE ASSESSEE FAILED TO APPEAR BEFORE APPELLATE AUTHORIT Y ON SEVERAL OCCASIONS. 3. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PER USED THE IMPUGNED ORDER. WE FIND THAT ALTHOUGH THE ASSESSEE WAS PROVIDED WITH SEVERAL OPPORTUNITY OF BEING HEARD BY LD. FIRST APP ELLATE AUTHORITY BUT THE ASSESSEE NEGLECTED TO AVAIL THE SAME. HOWEVER, KEEP ING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE AND ARTICLE 265 OF THE CONSTITUTION WHICH STATES THAT ONLY LEGITIMATE TAXES WERE TO BE COLLECTED WIT HIN THE FRAMEWORK OF LAW, WE DEEM IT FIT TO RESTORE THE MATTER BACK TO T HE FILE OF LD. CIT(A) FOR RE-ADJUDICATION AS PER LAW AND PASS A SPEAKING ORDE R WITH A DIRECTION TO THE ASSESSEE TO SUBSTANTIATE HIS CLAIM FORTHWITH AS ASSURED BY LD. AR. ITA NO. 1252/MUM/2017 KISHORE KULCHANDANI ASSESSMENT YEAR: 2012-13 3 4. RESULTANTLY, THE APPEAL STANDS ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH DECEMBER, 2018. SD/- SD/- (PAWAN SINGH) ( MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 05/12/2018 SR.PS:- JAISY VARGHESE !'#$ # / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. ) ( ) / THE CIT(A) 4. ) / CIT CONCERNED 5. * +!$, , , , / DR, ITAT, MUMBAI 6. + -./ / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.