DEDHIA PROPERTIES P. LTD, MUMBAI V. ITO WD 10(3)(4), MUMBAI

ITA 1600/MUM/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3745 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-04-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 24-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: RAHUL R SARDA
• Keywords: Reopening of assessment; Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 143(3); 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO 1600/MUM/2011 ASSESSMENT YEAR: 2005-2006 DEDHIA PROPERTIES PVT. LTD. C/O M/S. SARA & ASSOCIATES, 1 ST FLOOR, PEEDKAY MANSION, 470 JSS ROAD, CHIRA BAZAR, MUMBAI- 400020. PAN: AACCD1090L VS. THE ITO - 1 0(3)(4 ), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. RAHUL R. SARDA RESPONDENT BY : SHRI. B.S. BIST. DATE OF HEARING: 07/03/2016 DATE OF PRONOUNCEMENT: 16/03/2016 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGA INST ORDER DT. 25/12/2010 PASSED BY THE LD. CIT(APPEALS)-22, MUMBAI FOR THE A SST. YEAR 2005-06. 2. BRIEF FACTS, EMANATING FROM THE RECORD AND PLEAD INGS OF THE PARTIES, WHICH NEED NECESSARY MENTION FOR ADJUDICATION OF THE ISSU ES INVOLVED IN THIS APPEAL ARE THAT THE ASSESSEE COMPANY FILED ITS RETURN OF I NCOME FOR THE ASST. YEAR 2005-06 DECLARING THE LOSS OF RS. 882/-. THE RETURN WAS PROCESSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AND WAS ACCEPTED ON 30/03/2007. LATER ON, THE ASSESSMENT WAS RE-OPENED AND NOTICE U/S 148 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 26/03/2010. I N RESPONSE THEREOF THE ASSESSEE ASKED FOR THE REASONS RECORDED FOR ISSUING NOTICE AND FURTHER 2 ITA NO.1600/ MUM/2011 ASSESSMENT YEAR: 2005-06 REQUESTED TO TREAT THE RETURN FILED EARLIER U/S 139 OF THE ACT AS THE RETURN FILED IN RESPONSE TO THE NOTICE. ACCORDINGLY, COPY OF REA SONS RECORDED WAS SUPPLIED TO THE ASSESSEE. IT WAS ALLEGED IN THE REASONS RECO RDED FOR RE-OPENING THAT THE APPELLANT COMPANY HAS RECEIVED SHARE APPLICATION MO NEY OF RS. 4,00,000/- FROM UNIVERSAL CREDIT & SECURITIES LTD. ON 16/02/2 005. THE ASSESSING OFFICER ISSUED SHOW CAUSE AS TO WHY THE ADDITION OF RS. 4,0 0,000/- RECEIVED FROM UNIVERSAL CREDIT & SECURITIES LTD. SHOULD NOT BE MA DE. THE APPELLANT DENIED TO HAVE RECEIVED THE SAID AMOUNT HOWEVER, THE ASSESSIN G OFFICER MADE ADDITION OF RS. 4,00,000/-TO THE INCOME OF THE ASSESSEE. 3. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A)-22, THE LD. CIT(A) DISMISSED THE SAME. AGAIN ST THE ORDER OF THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. 4. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER P ASSED BY THE LD. CIT(A) ON THE FOLLOWING EFFECTIVE GROUNDS:- 1. THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL OF THE APPELLANT WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD. 2. THE LD. CIT(A) ERRED IN CONFIRMING ADDITIONS OF RS. 4,00,000/- U/S 68 WITHOUT APPRECIATING THE FACT AS NO SUCH ALLEGED SHARE CAPITAL HAS BEEN RECEIVED FROM M/S. UNIVERSAL CREDIT & SECU RITIES LIMITED. 3. THE APPELLANT PRAYS THAT ADDITION CONFIRMED OF RS. 4,00,000/- U/S 68 MAY BE DELETED. 5. THE ASSESSEE HAS ALSO MOVED AN APPLICATION FOR A LLOWING THE FOLLOWING ADDITIONAL GROUNDS: 3 ITA NO.1600/ MUM/2011 ASSESSMENT YEAR: 2005-06 1. THE LD. CIT(A) ERRED IN NOT ADJUDICATING THE GR OUND RAISED BY THE APPELLANT AGAINST REOPENING OF THE ASSESSMENT AND T REATING THE SAME AS GENERAL IN NATURE. 2. THE LD. CIT(A) ERRED IN NOT APPRECIATING THAT T HE REOPENING OF ASSESSMENT IS BAD IN LAW AS IT IS BASED ON UNCORROB ORATED INFORMATION RECEIVED FROM THIRD PARTIES WHICH CANNOT BE A GROUN D FOR INITIATING REASSESSMENT PROCEEDINGS. 6. AT THE VERY OUTSET, THE LD. AR SUBMITTED THAT TH E IMPUGNED ORDER HAS BEEN PASSED BY THE LD. CIT(A) WITHOUT GIVING PROPER OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE WHICH IS AGAINST THE BASIC PRINCIPLES OF NATURAL JUSTICE. THE LD. AR INVITED OUR ATTENTION TO THE COPY OF NOTICE DATED 1 6.12.2010 SUBMITTED AS A PART OF PAPER BOOK AND POINTED OUT THAT THE NOTICE WAS SENT TO THE ADDRESS OTHER THAN THE ADDRESS MENTIONED IN THE COLUMN OF A DDRESS OF THE ASSESSEE IN FORM NO. 35. WE HAVE ALSO NOTICED THAT THE ADDRESS MENTIONED ON THE NOTICE IS DIFFERENT FROM THE ADDRESS MENTIONED IN FORM 35. TH OUGH THE LD. CIT(A) HAS MENTIONED IN HIS ORDER THAT HE HAS GONE THROUGH THE ASSESSMENT ORDER, PERUSED THE SUBMISSIONS MADE BY THE APPELLANT AND A LSO DISCUSSED THE CASE WITH THE AR OF THE APPELLANT BUT SIMULTANEOUSLY, HE HAS ALSO MENTIONED ON THE FIRST PAGE OF THE IMPUGNED ORDER THAT NONE APPEARED FOR THE APPELLANT. THE ABOVE FACTS PRIMA FACIE CORROBORATE THE CONTENTION OF THE ASSESSEE THAT HE WAS NOT GIVEN PROPER OPPORTUNITY OF BEING HEARD. HENCE, IN OUR CONSIDERED VIEW, THE ASSESSEE SHOULD BE GIVEN OPPORTUNITY TO PRESENT HIS CASE BEFORE THE LD. CIT(A). 7. IN VIEW OF THE ABOVE FACTS AFTER HEARING THE LD. DR, WE SET ASIDE THE ORDER OF THE LD. CIT(A), WITHOUT GOING INTO THE MERITS OF TH E CASE, AND RESTORE THE FILE TO THE LD. CIT(A) WITH THE DIRECTION TO DECIDE THE APP EAL AFRESH AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO 4 ITA NO.1600/ MUM/2011 ASSESSMENT YEAR: 2005-06 APPEAR BEFORE THE CIT(A) AS AND WHEN DIRECTED TO DO SO AND TO CO-OPERATE WITH THE LD. CIT(A). 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR A.Y. 2005-06 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH MARCH, 2016 SD/- SD/- ( B.R.BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED:16/03/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA