PRITI H POLADIA, MUMBAI V. ITO- 20(2)(5), MUMBAI

ITA 1537/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5346 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 09-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILLIP
• Keywords: Opportunity of being heard; Set aside
• Section: 143(1); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER ITA NO. 1537/MUM./2018 ( ASSESSMENT YEAR : 2011 12 ) PRITI H. POLADIA FLAT NO.7, 2 ND FLOOR MOHANLAL MANSION DR. AMBEDKAR ROAD MATUNGA (E), MUMBAI 400 019 PAN AAGPS4681P . APPELLANT V/S INCOME TAX OFFICER WARD 20(2)(5), MUMBAI . RESPONDENT ASSESSEE BY : SHRI RAJESH SHAH REVENUE BY : SHRI NEIL PHILLIP DATE OF HEARING 14.05.2019 DATE OF ORDER 24.05.2019 O R D E R PER SAKTIJIT DEY. J.M. THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 30 TH NOVEMBER 20 17 , PASSED BY THE L EARNED COMMISSIONER (APPEALS) 32 , MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 20 11 12 . 2 . THOUGH , THE ASSESSEE HAS RAISED VARIOUS GROUNDS BOTH ON VALIDITY OF RE OPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX 2 PRITI H. POLADIA ACT, 1961 (FOR SHORT 'THE ACT' ) AS WELL AS MERITS OF VARIOUS ADDITION S / DISALLOWANCE S MADE BY THE ASSESSING OFFICER AND S USTAINED BY THE LEARNED COMMISSIONER (APPEALS), HOWEVER, AT THE TIME OF HEARING, LEARNED AUTHORISED REPRESENTATIVE PREFERRED TO ARGUE ON GROUND NO.3, AT THE OUTSET. 3 . IN GROUND NO.3, ASSESSEE HAS CHALLENGED THE EX PARTE DISPOSAL OF THE APPEAL BY LEARNED COMMISSIONER (APPEALS). 4 . WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE RETURN OF INCOME FILED BY THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEAR ON 26 TH JULY 2011, WAS INITIALLY PROPOSED UNDER SECTION 143(1) OF THE ACT . SUBSEQUENTLY, THE ASSESSING OFFICER BEING OF THE VIEW THAT INCOME DECLARED UNDER THE HEAD CAPITAL GAIN FROM THE SALE OF SHARES IS REQUIRED TO BE ASSESSED UNDER THE HEAD INCOME FROM BUSINES S AND PROFESSIONS, RE OPENED THE ASSESSMENT UNDER SECTION 147 OF T HE ACT. AS ALLEGED BY THE ASSESSING OFFICER, IN RESPONSE TO THE NOTICES ISSUED BY HIM , NEITHER THE ASSESSEE APPEARED NOR FILED ANY SUBMISSIONS. THEREFORE, HE PROCEEDED TO COMPLETE THE ASSESSMENT UNDER SECTION 144 OF THE ACT , TO THE BEST OF HIS JUDGMENT , BY TREATING THE INCOME FROM SALE OF SHARES AS INCOME FROM BUSINESS. AGAINST THE ASSESSMENT ORDER SO PASSED , ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3 PRITI H. POLADIA 5 . AS ALLEGED BY LEARNED COMMISSIONER (APPEALS) , THOUGH , THE APPEAL WAS FIXED ON DIFFERE NT DATES, HOWEVER, THE ASSESSEE DID NOT APPEAR. THEREFORE, LEARNED COMMISSIONER (APPEALS) ULTIMATELY DECIDED THE APPEAL EX PARTE BY DISMISSING IT . 6 . L EARNED AUTHORISED REPRESENTATIVE SUBMITTED, IF ONE MORE OPPORTUNITY IS GIVEN TO THE ASSESSEE , SHE WILL APP EAR BEFORE LEARNED COMMISSIONER (APPEALS) TO REPRESENTING HER CASE. 7 . THE LEARNED DEPARTMENTAL REPRESENTATIVE , THOUGH , SUBMITTED THAT IN SPITE OF SUFFICIENT OPPORTUNITY BEING GIVEN THE ASSESSEE DID NOT AVAIL THEM, HOWEVER, HE HAS NO OBJECTION IF ONE MORE OP PORTUNITY IS GIVEN TO THE ASSESSEE TO REPRESENT HER CASE BEFORE LEARNED COMMISSIONER (APPEALS). 8 . HAVING CONSIDERED RIVAL SUBMISSIONS, WE DO NOT INTEND TO ENTER INTO THE CONTROVERSY AS TO FOR WHOSE FAULT THE APPEAL WAS DECIDED EX PARTE. CONSIDERING THE SUBMISSION OF LEARNED AUTHORISED REPRESENTATIVE THAT GIVEN AN OPPORTUNITY THE ASSESSEE WILL APPEAR AND REPRESENT HER CASE BEFORE LEARNED COMMISSIONER (APPEALS), WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE T HE ISSUES RAISED IN THE PRESENT APPEAL FOR DE NOVO ADJUDICATION BY LEARNED COMMISSIONER (APPEALS). NEEDLESS TO MENTION, LEARNED COMMISSIONER (APPEALS) MUST AFFORD REASONABLE 4 PRITI H. POLADIA OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. AT THE SAME TIME, THE ASSESSEE IS DIRECTED TO RESPOND TO THE HEARING NOTICE TO BE ISSUED BY LEARNED COMMISSI ONER (APPEALS) AND REPRESENT HER CASE ON THE DATE FIXED WITH ALL RELEVANT MATERIALS AND EVIDENCES. FURTHER, THE ASSESSEE MUST EXPLAIN THE DELAY, IF ANY, IN FIL ING THE APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS). WITH THE AFORESAID OBSERVATIONS, THE GROUNDS RAISED ARE ALLOWED FOR STATISTICAL PURPOSES. 9 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN C OURT ON 24.05.2019 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 24.05.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI