NIKHIL JADAVJI SALIA , MUMBAI V. ITO 26 (2)(7) , MUMBAI

ITA 149/MUM/2020

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7624 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 05-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RADHA HALBE
• Keywords: Opportunity of being heard; Principle of natural justice; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) “SMC” BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER ITA.NOs. 148 & 149/MUM/2020 (A.Y: 2013-14) Shri Nikhil Jadavji Salia 2, Shri Niweas, J.N. Road Mulund (W), Mumbai PAN: AUWPS7167G v. Income Tax Officer – 26(2)(7) Room No. 416, 4 th Floor Kautilya Bhavan Bandra Kurla Complex Bandra(E), Mumbai - 400051 (Appellant) (Respondent) Assessee by : Shri Radha Halbe Department by : Shri Sanjay J. Sethi Date of Hearing : 14.09.2021 Date of Pronouncement : 25.11.2021 O R D E R PER C.N. PRASAD (JM) 1. These appeals are filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals) -40, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 23.03.2019 for the A.Y. 2013-14. 2. Assessee in his appeal for the A.Y. 2013-14 has raised following grounds: - “1 In the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in upholding the contention of the Learned Assessing Officer in treating Capital Gains as Short Term Capital Gain instead of Long Term Capital Loss. 2 ITA.NOs. 148 & 149/MUM/2020 (A.Y: 2013-14) Shri Nikhil Jadavji Salia 2. In the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the action of the Learned Assessing Officer in not considering the Brokerage Expenses of Rs. 60,000/- while determining full value of consideration. 3. In the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in not providing the opportunity of being heard thereby violating the principle of Natural Justice. 4. The appellant craves leave to add, alter, delete or modify all or any of the above grounds of appeal. All the above grounds are without prejudice to each other.” 3. At the outset, Ld. Counsel for the assessee submits that the order has been passed by the Ld.CIT(A) exparte without giving opportunity of being heard to the assessee. 4. Ld. DR has no serious objection in remitting the matter back to the Ld.CIT(A). 5. Heard both sides, perused the order of the Ld.CIT(A) and find that the Ld.CIT(A) passed an exparte order and the order passed was also very cryptic. Since the Ld.CIT(A) passed exparte order without providing adequate opportunity of being heard to the assessee, I feel this matter should go back to the Ld.CIT(A) to consider the appeal on merits afresh after providing adequate opportunity of being heard to the assessee. 3 ITA.NOs. 148 & 149/MUM/2020 (A.Y: 2013-14) Shri Nikhil Jadavji Salia Thus, this appeal is restored to the file of the Ld.CIT(A) for Denovo adjudication. ITA.No. 149/MUM/2020 6. Assessee in his appeal has raised following grounds: - “(i) In the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in sustaining the penalty of ₹.1,57,775/- u/s.271(1)(c) of the Act.” 7. Since the quantum appeal is restored to the file of the Ld.CIT(A) for Denovo adjudication the penalty appeal is also restored to the file of the Ld.CIT(A) for fresh adjudication. 8. In the result, both appeals of the assessee are allowed for statistical purpose. Order pronounced on 25.11.2021 as per Rule 34(4) of ITAT Rules by placing the pronouncement list in the notice board Sd/- (C.N. PRASAD) JUDICIAL MEMBER Mumbai / Dated 25/11/2021 Giridhar, Sr.PS 4 ITA.NOs. 148 & 149/MUM/2020 (A.Y: 2013-14) Shri Nikhil Jadavji Salia Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum