THE WODEHOUSE GYMKHANA LTD, MUMBAI V. DCIT 1(3), MUMBAI

ITA 1289/MUM/2014

• Counselvise Citation: 128919914 RSA 2014
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 26-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K DHONDIAL
• Assessee Lawyers: JEEVRAJ P JAIN
• Keywords: Reopening of assessment; Opportunity of being heard
• Section: 148; 154

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NOS.1289 & 1291/MUM/2014 ASSESSMENT YEARS: 2003-04 & 2008-09 THE WODEHOUSE GYMKHANA LTD. 182, MAHARSHI KARVE ROAD, COLABA, MUMBAI-400021 / VS. DEPUTY COMMISSIONER OF INCOME TAX-1(3), AAYKAR BHAVAN, MUMBAI / ASSESSEE / REVENUE P.A. NO. AAACT4146R $ % & / ASSESSEE BY SHRI JEEVRAJ P. JAIN $ % & / REVENUE BY SHRI A.K.DHONDIAL-CIT-DR / DATE OF HEARING 08/06/2015 & / DATE OF ORDER: 09/06/2015 & / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) BOTH THESE APPEALS ARE BY THE ASSESSEE FOR ASSESSMENT YEAR 2003-04 AND 2008-09 CHALLENGING THE RESPECTIVE IMPUGNED ORDER OF THE LD. FIRST APPELLAT E AUTHORITY, MUMBAI, BOTH DATED 16/12/2013. ITA NO.1289 & 1291/MUM/2014 WODEHOUSE GYMKHANA LTD. 2 2. DURING HEARING OF THIS APPEAL, I HAVE HEARD SHRI , JEEVRAJ P. JAIN, LD. COUNSEL FOR THE ASSESSEE AND S HRI A.K. DHONDIAL, LD. CIT-DR. THE CRUX OF ARGUMENT ADVANCE D ON BEHALF OF THE ASSESSEE IS THAT THE ASSESSEE FILED R ECTIFICATION APPLICATION BEFORE THE LD. COMMISSIONER OF INCOME T AX (APPEALS) WHICH IS STILL PENDING AND GOES TO THE RO OT OF THE ISSUES RAISED BEFORE THIS TRIBUNAL. IT WAS CONTEND ED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NO T PASSED A SPEAKING ORDER IN BOTH THE CASES. PLEA WA S ALSO RAISED THAT THE ASSESSEE HAS NOT RECEIVED THE COMPE NSATION FOR THE LAST TEN YEARS, THEREFORE, THERE IS NO QUES TION OF ADDITION. ON THE OTHER HAND, THE LD. CIT-DR DEFENDE D THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BUT DID NOT CONTROVERT THE ASSERTION MADE BY THE LD. COUNSEL FO R THE ASSESSEE. THE LD. DR, IN THE INTEREST OF JUSTICE, A LSO DID NOT OBJECTED TO THE REQUEST OF THE ASSESSEE IF THE MATT ER IS ADJUDICATED AFRESH BY THE OFFICE OF THE LD. COMMISS IONER OF INCOME TAX (APPEALS). 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT FOR ASSESSMENT YEAR 2003-04, THE AS SESSEE DECLARED LOSS OF RS.35,51,728/- IN ITS RETURN FILED ON 02/12/2003. THE SUMMARY ASSESSMENT WAS COMPLETED U/ S 143(1) OF THE ACT, RESULTING IN A REFUND OF RS.14,6 07/-, WHICH WAS ISSUED TO THE ASSESSEE. THE CASE OF THE ASSESSEE WAS REOPENED AND THUS NOTICE U/S 148 OF THE ACT DAT ED ITA NO.1289 & 1291/MUM/2014 WODEHOUSE GYMKHANA LTD. 3 31/03/2010 WAS ISSUED TO THE ASSESSEE. WE NOTE THAT THE REASONS FOR REOPENING IS THAT THE ASSESSEE COMPANY HAD BEEN CLAIMING BUSINESS LOSSES WHICH IS NOT PROPER A ND FURTHER THE ASSESSEE COMPANY, CLAIMING INCOME EARNE D FROM MEMBERS AS EXEMPT UNDER THE PRINCIPLE OF MUTUA LITY. BEFORE US, THE LD. COUNSEL BROADLY TOOK THE STAND T HAT THE IMPUGNED ORDERS ARE NOT SPEAKING ONE AND MATERIAL F ACTS WERE EITHER IGNORED OR NOT CONSIDERED WHILE COMING TO A PARTICULAR CONCLUSION. PLEAS WAS ALSO RAISED THAT MY RECTIFICATION APPLICATION FILED U/S 154 OF THE ACT IS STILL PENDING BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). THUS, WITHOUT GOING INTO THE MERITS OF THE APPEAL, THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) IS DIRECTED TO DISPOSE OFF THE APPLICATION OF THE ASSE SSEE FILED U/S 154 OF THE ACT AND THEN DECIDE BOTH THESE APPEA LS ON MERIT. BEFORE US, THE ASSESSEE HAS ALSO CHALLENGED THE REOPENING OF ASSESSMENT U/S 148 OF THE ACT BY CLAIM ING THAT NO SUCH NOTICE WAS EVER ISSUED TO THE ASSESSEE AND FURTHER NO SPEAKING ORDER HAS BEEN PASSED BY THE LD . COMMISSIONER OF INCOME TAX (APPEALS) ON THE ADDITIO NAL GROUND RAISED BY THE ASSESSEE. NEEDLESS TO MENTIO N HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM SO THAT NO GRIEVANCE IS CAUS ED TO EITHER SIDE. EVEN OTHERWISE, THE MANDATE OF THE CONSTITUTION IS TO COLLECT/LEVY DUE TAXES. BOTH TH ESE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. ITA NO.1289 & 1291/MUM/2014 WODEHOUSE GYMKHANA LTD. 4 FINALLY, BOTH THESE APPEALS ARE ALLOWED FOR STATIST ICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH THE S IDES AT THE CONCLUSION OF THE HEARING ON 08 TH JUNE 2015. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 09/06/2015 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. & / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI