BIBHUTI B. DASGUPTA (HUF), MUMBAI V. JT CIT RG 19(1), MUMBAI

ITA 1435/MUM/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0359 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Bonafide belief; Period of limitation; Condonation of delay
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, MU MBAI BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 5129//MUM/2012 (ASSESSMENT YEAR-2009-10) BIBHUTI B. DASGUPTA (HUF), PLOT NO. 285-286, NILEEMA, 12 TH ROAD, KHAR (W), MUMBAI-400052. PAN: AAAHG1175J VS. CIT-19, PIRAMAL CHAMBERS, PAREL, MUMBAI-400012. (APPELLANT) (RESPONDENT) ITA NO. 1435//MUM/2014 (ASSESSMENT YEAR-2009-10) BIBHUTI B. DASGUPTA (HUF), PLOT NO. 285-286, NILEEMA, 12 TH ROAD, KHAR (W), MUMBAI-400052. PAN: AAAHG1175J VS. JT.CIT-RANGE-19(1), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIPUL JOSHI (AR REVENUE BY : SHRI BHUPENDRA KUMAR SINGH (DR) DATE OF HEARING : 05.02.2018 DATE OF PRONOUNCEMENT : 05 .02.2018 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THESE TWO APPEAL BY ASSESSEE UNDER SECTION 253 OF T HE INCOME-TAX ACT (THE ACT) ARE DIRECTED AGAINST THE ORDER LD. CIT- 19, MUMBAI UNDER SECTION 263 DATED 23.07.2012 AND CIT(A)-30, MUMBAI DATED 11 .02.2013 FOR ASSESSMENT YEAR (AY) 2009-10. BOTH THE APPEAL RELAT ES TO ASSESSMENT YEAR ITA NO. 5129/M/2012 & 1435/M/14- BIBHUTI B. DASGUPTA (HUF) 2 2009-10. IN ITA NO. 5129/M/2012, THE ASSESSEE HAS R AISED THE FOLLOWING GROUNDS OF APPEAL: 1. BREACH OF THE PRINCIPLES OF NATURE JUSTICE 1.1. THE LEARNED COMMISSIONER OF INCOME-TAX -19, MUMBAI [LD.CIT] ERRED IN FRAMING THE REVISION ORDER U/S. 263 OF THE INCOME - TAX ACT, 1961 ['THE ACT'] BY NOT GIVING PROPER, SUFFICIENT AND EFFECTIV E OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 1.2. IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTA NCES OF THE CASE, AND IN LAW, THE ORDER IS REQUIRED TO BE HELD AS BAD AND IL LEGAL IN BREACH OF THE PRINCIPLES OF NATURAL JUSTICE. 2. REVISION ILLEGAL 2.1 THE LD. CIT ERRED IN REVISING THE ASSESSMENT OR DER PASSED BY THE A.O., BY INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT. 2.2 WHILE DOING SO, THE ID. CIT FAILED TO APPRECIAT E THAT: (I) THE A.O. HAD MADE THE NECESSARY INQUIRIES WHILE FRAMING THE ASSESSMENT ORDER; (II) THE ORDER WAS NOT' ERRONEOUS' WITHIN THE MEANI NG OF SECTION 263 OF THE ACT; AND (III) IT WAS NOT 'PREJUDICIAL TO THE INTEREST OF TH E REVENUE' WITHIN THE MEANING OF SECTION 263 OF THE ACT. 2.3 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCU MSTANCES OF THE CASE, AND IN LAW, NO SUCH REVISION WAS CALLED FOR. WITHOUT PREJUDICE TO THE ABOVE 3.1 THE ID. CIT ERRED IN HOLDING THAT THE FAIR MARK ET VALUE OF THE FLATS, TO BE RECEIVED BY THE APPELLANT ON TRANSFER OF HIS IMMOVA BLE PROPERTY, SHOULD BE TAKEN AS 'CONSIDERATION' WHILE COMPUTING CAPITAL GA IN TAX LIABILITY, AND NOT THE COST OF CONSTRUCTION ON SUCH FLATS. 3.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCU MSTANCES OF THE CASE, AND IN LAW, NO SUCH SUBSTITUTION WAS CALLED FOR. 2. BRIEF FACTS OF THE CASE ARE THAT FOR AY 2009-10, TH E ASSESSEE FILED RETURN OF INCOME ON 28.08.2009 DECLARING TOTAL INCOME OF RS. 17,46,41,580/-. THE ITA NO. 5129/M/2012 & 1435/M/14- BIBHUTI B. DASGUPTA (HUF) 3 ASSESSMENT WAS COMPLETED ON 26.12.2011 UNDER SECTIO N 143(3) OF THE ACT. THE ASSESSING OFFICER (AO) WHILE PASSING THE ASSESS MENT ORDER COMPUTED THE LONG TERM CAPITAL GAIN (LTCG) OF RS. 18,10,65,9 29/- AGAINST THE LTCG OF RS. 17,16,82344/- AS COMPUTED BY ASSESSEE I N ITS CALCULATION FOR WORKING THE CAPITAL GAIN. AGGRIEVED BY THE ORDER OF ASSESSMENT, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A), CHALLENGING THE ADDITIONS ON ACCOUNT OF WORKING THE LTCG. SUBSEQUENTLY, THE ASSESSMENT ORDE R WAS REVISED BY LD. CIT-19. THE LD. CIT-19 VIDE ITS ORDER DATED 23.07.2 012 AND SET-ASIDE THE ORDER PASSED UNDER SECTION 143(3) DATED 26.12.2011. WHILE SETTING ASIDE THE ASSESSMENT ORDER , THE AO WAS DIRECTED TO MAKE FURT HER ENQUIRY AND PASS THE AFRESH, AFTER MAKING ENQUIRY WITH REGARD TO FAIR M ARKET VALUE OF THE ASSET RECEIVED OR TO BE RECEIVED IN EXCHANGE OF CONSIDERA TION AND RECALCULATE THE LTCG. THUS, AGGRIEVED BY THE ORDER OF LD. CIT-19, T HE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENU E AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASS ESSEE ARGUED THAT THE AO PASSED THE ASSESSMENT ORDER AFTER MAKING FULL-FLEDG ED ENQUIRY AND RECOMPUTED THE LTCG. THE ASSESSEE HAS DISCLOSED ALL INFORMATION AND FURNISHED REPLIES TO THE RELEVANT QUERY RAISED BY A O DURING THE ASSESSMENT PROCEEDINGS. AFTER SATISFACTION OF THE REPLY OF THE ASSESSEE, THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER. THE ORDER PASS ED BY AO IS NEITHER ITA NO. 5129/M/2012 & 1435/M/14- BIBHUTI B. DASGUPTA (HUF) 4 ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENU E. IT WAS SUBMITTED THAT THE ASSESSEE WAS SERVED WITH SHOW-CAUSE NOTICE UNDE R SECTION 263 DATED 15.05.2012 FOR REVISING THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3). THE ASSESSEE FILED ITS REPLY ON 06.06.2012. IN THE REPLY, THE ASSESSEE CONTENDED THAT DURING THE ASSESSMENT PROCEEDING, AF TER DISCUSSING AND FULLY EXAMINING THE LTCG EARNED AND DECLARED BY THE ASSE SSEE ON THE SALE AND DEVELOPMENT RIGHT, THE AO PASSED THE ASSESSMENT OR DER UNDER SECTION 143(3) DETERMINING THE CAPITAL GAIN AT RS. 18.10 CR ORE AGAINST RS. 17.17 CRORE DECLARED BY ASSESSEE, THEREBY THE AO MADE THE ADDITION OF MORE THAN RS. 90 LAKHS. THE ASSESSEE FURTHER CONTENDED THAT T HE AO ISSUED DETAILS OF SHOW-CAUSE NOTICE VIDE LETTER DATED 15.11.2011 RAIS ING SPECIFIC QUERY REGARDING THE CAPITAL GAIN. THE ASSESSEE MADE EXHAU STIVE WRITTEN SUBMISSION ON 04.10.2011 AND PLACED ON RECORD THE ENTIRE FACTU AL AND LEGAL SUBMISSION ON THE ISSUE. THE ASSESSEE ALSO FURNISHED COPY OF V ALUATION REPORT FOR CONSIDERING AT THE END OF AO AFTER GATHERING ALL IN FORMATION DURING THE ASSESSMENT PROCEEDING. THE AO REWORK THE CAPITAL GA IN ON SALE OF DEVELOPMENT RIGHT. THE ASSESSEE SPECIFICALLY CONTEN DED THAT THE AO HAS TAKEN ONE OF THE POSSIBLE VIEWS DURING THE COURSE O F ASSESSMENT. MERE FACT THAT ADOPTING SOME OTHER ALTERNATIVE METHOD COULD F ETCH MORE REVENUE WOULD NOT RENDER THE ASSESSMENT ORDER ERRONEOUS. EV ERY ORDER WHICH IS PASSED ON A POSSIBLE VIEW CANNOT BE TERMED AS PREJ UDICIAL TO THE INTEREST OF REVENUE. ITA NO. 5129/M/2012 & 1435/M/14- BIBHUTI B. DASGUPTA (HUF) 5 4. IT WAS FURTHER SUBMITTED THAT EVEN IF THE ORDER IS PREJUDICIAL TO THE INTEREST OF REVENUE, NO REVISION IS POSSIBLE, IF THE ORDER IS N OT ERRONEOUS, REVISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE. IN SUPPORT OF HIS SUBMISSION RELIANCE IS MADE ON THE DECISION OF HONBLE APEX COURT IN MALABAR INDUSTRIAL CO. LTD. VS. CIT [(2000) 243 ITR 83 (SC)] AND CIT VS. KWALITY STEEL SUPPLIERS COMPLEX [(2017) 395 ITR 1 ( SC)] AND DECISION OF JURISDICTIONAL HIGH COURT IN CIT VS. GABRIEL INDIA LTD. [(1993) 203 ITR 108 (BOM)]. 5. IN OTHER ALTERNATIVE SUBMISSION, THE LD. AR OF THE ASSESSEE SUBMITS THAT THE ORDER IS INVALID AS THE AO ADOPTED AND FOLLOWED ONE OF THE POSSIBLE VIEWS WHILE PASSING THE ASSESSMENT ORDER. MERELY FACTS TH AT SOME OTHER ALTERNATIVE METHOD COULD FETCH MORE REVENUE OR THE COMMISSION I S NOT IN AGREEMENT WITH THE VIEW TAKEN BY AO WOULD NOT RENDER THE ASSE SSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE REL IANCE IS MADE IN CASE OF CIT VS. MAX INDIA LTD. [(2007) 295 ITR 282 (SC)], G RASIM INDUSTRY LTD. VS. CIT [(2010) 321 ITR 92 (BOM)], CIT VS. LIC HOUSING FINANCE LTD. [(2014) 367 ITR 458 (BOM)], CIT VS. GERA DEVELOPMENTS (P) L TD. [(2016) 387 ITR 691(BOM)] AND CIT VS. KIRAN HIRJI SHAH [(2015) 56 T AXMANN.COM 360(BOM)]. 6. IN FURTHER ALTERNATIVE SUBMISSION, THE LD. AR OF T HE ASSESSEE SUBMITS THAT NO REVISIONAL POWER SHOULD BE EXERCISED FOR DIRECTING FULL ENQUIRY, WHERE THE AO HAS ALREADY CONDUCTED SUFFICIENT ENQUIRY AND HAS TAKEN A POSSIBLE VIEW ITA NO. 5129/M/2012 & 1435/M/14- BIBHUTI B. DASGUPTA (HUF) 6 AFTER THE ENQUIRY. THE POWER OF REVISION CAN ONLY E XERCISE, WHERE NO ENQUIRY AS REQUIRED UNDER LAW IS DONE. RELIANCE IS MADE IN CASE OF CIT VS. NIRAV MODI [(2017) 390 ITR 292 (BOM)], CIT VS. NIRAV MOD I [(2017) 77 TAXMANN.COM 15(SC)], CIT VS. NIRAV MODI [(2017) TAX MANN.COM 78 (SC)], CIT VS. SUNBEAM AUTO LTD. [(2011) 332 ITR 167 (DEL) ], CIT VS. ANIL KUMAR SHARMA [(2011) 335 ITR 83 (DEL)], CIT VS. NEW DELHI TELEVISION LTD. [(2014) 360 ITR 44 (DEL)]. 7. IN OTHER ALTERNATIVE SUBMISSION, IT WAS ARGUED THAT AGAINST THE ADDITION MADE IN THE ASSESSMENT ORDER, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT WAS PRECLUDED FROM REVISING THE ASSESS MENT ORDER ON THE ISSUES WHICH WERE SUBJECT MATTER OF APPEAL PENDING BEFORE THE LD. CIT(A). ON THE CONTRARY, THE LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF LD. CIT. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NO TED THAT THE ASSESSMENT ORDER PASSED BY AO ON 26.12.2011 UNDER SECTION 143( 3). WHILE PASSING THE ASSESSMENT ORDER, THE AO RECALCULATED THE CAPITAL, AGAINST THE CAPITAL GAIN COMPUTED BY ASSESSEE IN ITS WORKING FURNISHED BEFOR E THE AO, ARISEN FROM THE DEVELOPMENT RIGHT SOLD BY ASSESSEE. THE ASSESSE E FILED APPEAL BEFORE THE LD. CIT(A). THUS, CERTAINLY THE RECALCULATION OF LT CG WAS MADE BY AO AFTER RAISING SUFFICIENT QUERIES DURING THE ASSESSM ENT PROCEEDING. THE AO MADE THE ADDITION OF MORE THAN RS. 90 LAKHS IN THE ASSESSMENT ORDER. THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). WHEN T HE ORDER WAS REVISED THE ITA NO. 5129/M/2012 & 1435/M/14- BIBHUTI B. DASGUPTA (HUF) 7 APPEAL ON THE SAME ISSUE WAS PENDING BEFORE LD CIT( A). THE APPEAL BEFORE THE LD. CIT(A) WAS INSTITUTED ON 11.01.2012. SHOW-C AUSE NOTICE UNDER SECTION 263 WAS ISSUED ON 15.05.2012. THE LD. CIT I SSUED SHOW-CAUSE NOTICE FOR REVISION OF ASSESSMENT ORDER PASSED UNDER SECTI ON 143(3) DURING THE PENDENCY OF THE APPEAL. THE SHOW CAUSE NOTICE WAS I SSUED IN RESPECT OF THE SAME ISSUE PENDING BEFORE THE LD. CIT(A). CLAUSE-(C ) OF EXPLANATION 1 ATTACHED WITH SECTION 263 PRESCRIBE THAT WHERE ANY ORDER PASSED BY ASSESSING OFFICER IS SUBJECT MATTER OF APPEAL, THE LD. PRINCIPLE COMMISSIONER OF INCOME-TAX OR CIT IS PRECLUDED TO CONSIDER THOSE ISSUES , THOUGH HE MAY CONSIDER THE OTHER ISSUES WHICH MAY N OT BEEN CONSIDERED OR APPEALED IN SUCH APPEAL. IN OUR VIEW, WHEN THE SUBJ ECT MATTER OF DISALLOWANCE WAS PENDING ADJUDICATION BEFORE THE LD . CIT(A). THE LD. CIT OUGHT NOT TO HAVE REVISED THE ORDER FOR PASSING ASS ESSMENT ORDER AFRESH. OUR VIEW IS ALSO SUPPORTED BY THE PROVISION CONTAINED U NDER SECTION 251 OF THE ACT, WHEREIN THE APPELLATE COMMISSIONER HAS A POWER TO CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT ORDER. 9. EVEN ON OTHER ALTERNATIVE ARGUMENT, WE MAY NOTE THA T THE HONBLE SUPREME COURT IN MALABAR INDUSTRIAL CO. LTD. VS. CIT (SUPRA ) HELD THAT WHERE TWO VIEW WAS POSSIBLE AND THE AO HAS TAKEN ONE VIEW. TH E ORDER OF LD. CIT REVISING ORDER IN SUCH CIRCUMSTANCES CANNOT BE TREA TED AS ORDER ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE. IN VIEW OF THE ABOVE, WE ACCEPT THE ITA NO. 5129/M/2012 & 1435/M/14- BIBHUTI B. DASGUPTA (HUF) 8 APPEAL OF THE ASSESSEE AND SET-ASIDE THE IMPUGNED O RDER PASSED BY LD. CIT UNDER SECTION 263 DATED 23.12.2012. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOW ED. ITA NO. 1435/MUM/2014 11. THE PERUSAL OF RECORD REVEALS THAT THE PRESENT APPE AL IS FILED AFTER 292 DAYS OF PRESCRIBED PERIOD OF LIMITATION. PERUSAL OF THE RECORD REVEALS THAT THE ASSESSEE HAS FILED AN AFFIDAVIT OF SH. BIBHUTI B. D ASGUPTA KARTA OF AASSESSEE FIRM IN SUPPORT OF CONDONATION OF DELAY IN FILING T HE APPEAL. IN THE AFFIDAVIT, THE ASSESSEE HAS CONTENDED THAT THE ORDER PASSED BY LD. CIT(A) DATED 11.02.2013 ON 13.03.2013 AND THE APPEAL IS FILED ON 28.02.2014. IT IS FURTHER STATED THAT AGAINST THE ASSESSMENT ORDER, THE ASSES SEE FILED APPEAL BEFORE THE LD. CIT(A) ON 11.02.2002. DURING THE PENDENCY OF AP PEAL, THE ASSESSEE RECEIVED NOTICE UNDER SECTION 263 FROM LD. CIT-19 F OR REVISING THE ASSESSMENT ORDER FRAMED UNDER SECTION 143(3). THE A SSESSMENT ORDER WAS REVISED BY LD. CIT-19 AGAINST WHICH APPEAL WAS FILE D BEFORE THE TRIBUNAL. THE ASSESSEE WAS ADVISED THAT THE ASSESSMENT ORDER HAS BEEN REVISED BY LD. CIT-19, AGAINST WHICH THE APPEAL HAS BEEN FILED. TH E ASSESSEE WAS ADVISED TO WAIT FOR OUTCOME OF APPEAL FILED BEFORE THE TRIB UNAL. IT WAS ADVISED THAT IF THE ORDER PASSED UNDER SECTION 263 IS QUASHED BY TR IBUNAL, THE ASSESSMENT ORDER AUTOMATICALLY WOULD STANDS REVIVED. HOWEVER, THE LD. CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT GIVING ANY OPPORTUNITY HOLDING THAT APPEAL OF THE ASSESSEE HAS BECOME INFRUCTUOUS. IT WAS ARGUED THAT ITA NO. 5129/M/2012 & 1435/M/14- BIBHUTI B. DASGUPTA (HUF) 9 ASSESSEE HAS BONAFIDE BELIEF THAT ASSESSEE NEEDS NO T TO FILE APPEAL BEFORE THE TRIBUNAL. 12. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUBMI TS THAT HE HAS NO OBJECTION, IF THE DELAY IS CONDONED AND THE APPEAL IS DECIDED ON MERIT. CONSIDERING THE CONTENTS OF AFFIDAVIT, THE SUBMISSI ON OF LD. AR OF THE ASSESSEE, WE FIND THAT ASSESSEE EXPLAINED HIS BONAF IDIES IN NOT FILING THE APPEAL WITHIN PRESCRIBED PERIOD OF LIMITATION. OUR VIEW IS ALSO SUPPORTED BY THE DECISION OF HONBLE SUPREME COURT IN CONCORD OF INDIA INSURANCE CO. LTD. V. SMT. NIRMALA DEVI AIR 1979 SC 1666, HAS HEL D THAT A LEGAL ADVICE TENDERED BY A PROFESSIONAL AND THE LITIGANT ACTING UPON IT ONE WAY OR THE OTHER COULD BE A SUFFICIENT CAUSE TO SEEK CONDONATI ON OF DELAY AND COUPLED WITH THE OTHER CIRCUMSTANCES AND FACTORS FOR APPLYI NG LIBERAL PRINCIPLES AND THEN SAID DELAY CAN BE CONDONED. EVENTUALLY, AN OVE RALL VIEW IN THE LARGER INTEREST OF JUSTICE HAS TO BE TAKEN. NONE SHOULD BE DEPRIVED OF ADJUDICATION ON MERITS UNLESS THE COURT OF LAW OR THE TRIBUNAL/A PPELLATE AUTHORITY FINDS THAT THE LITIGANT HAS DELIBERATELY AND INTENTIONALL Y DELAYED FILING OF THE APPEAL THAT HE IS CARELESS, NEGLIGENT AND HIS CONDU CT IS LACKING IN BONA FIDES . WE ARE CONSCIOUS OF THE FACTS THAT WHEN TECHNICALIT IES AND SUBSTANTIAL JUSTICE ARE PITTED AGAINST EACH OTHER, THE TECHNICALITIES M UST BE AVOIDED. CONSIDERING THE FACTS OF THE PRESENT CASE WE HAVE SEEN THAT SUB STANTIAL RIGHT OF THE ASSESSEE IS AN INVOLVED IN THE APPEALS, HENCE, WE D EEM IT APPROPRIATE TO CONDONE THE DELAY IN FILING APPEAL. ITA NO. 5129/M/2012 & 1435/M/14- BIBHUTI B. DASGUPTA (HUF) 10 13. WE HAVE HEARD THE PARTIES ON MERIT OF THE CASE. THE LD. AR OF THE ASSESSEE SUBMITS THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT THE ASSESSMENT ORDER HAS BEEN SET-ASIDE UNDER SECTI ON 263 BY ADMINISTRATIVE COMMISSIONER. HENCE, THE APPEAL HAS BECOME INFRUCTU OUS. THE LD. AR OF THE ASSESSEE SUBMITS THAT THE APPEAL MAY BE RESTORE D TO THE FILE OF LD. CIT(A) TO DECIDE IT AFRESH IN ACCORDANCE WITH LAW. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE CONDITIONALLY AGREED THAT THIS APPEAL M AY BE RESTORED TO THE FILE OF LD. CIT(A) TO DECIDE ON MERIT, ONLY IN CASE IF THE ORDER PASSED UNDER SECTION 263 DATED 26.07.2012 IS HELD INVALID BY THE TRIBUNAL. 14. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. AS WE HAVE ALREADY DECLARED THE ORDER PASSED BY LD. CIT-19 UNDER SECTION 263 DATED 23.07.2012 AS INVALID. HENCE, WE DEEM IT APPROPRIATE TO RESTORE THE PRESEN T APPEAL TO THE FILE OF LD. CIT(A) TO DECIDE IT AFRESH ON MERIT. NEEDLESS TO SA Y THAT LD. CIT(A) SHALL GRANT REASONABLE OPPORTUNITY BEFORE PASSING THE ORD ER ON MERIT. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF FEBRUARY, 2018. SD/- SD/- (B. R. BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 05 /02/2018 S.K.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT ITA NO. 5129/M/2012 & 1435/M/14- BIBHUTI B. DASGUPTA (HUF) 11 BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/