PANKAJ B KOTECHA, MUMBAI V. ITO 25(3)(3), MUMBAI

ITA 1737/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6689 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 13-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIKANT NAMDEO
• Assessee Lawyers: AJAY R SINGH
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . , , , BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA U , JU DICIAL MEMBER . / ITA NO. 1737 /MUM/2012 ( / ASSESSMENT YEAR : 2006 07 ) MR. PANKAJ B. KOTECHA F 1305/1306, AGARWAL RESIDENCY SHANKAR LANE, KANDIVALI (WEST) MUMBAI 400 067 .. / APPELLANT V/S THE INCOME TAX OFFICER WARD 25(3)(3), C 11 PRATYAKSHKAR BHAVAN BANDRA KURLA COMPLEX BANDRA (EAST), MUMBAI 400 051 .... / RESPONDENT ./ PERMANENT ACCOUNT NUMBER AACPR8134D / ASSESSEE BY : MR. AJ AY R. SINGH / REVENUE BY : MR. SHRIKANT NAMDEO / DATE OF HEARING 11.06.2014 / DATE OF ORDE R 19.06.2014 / ORDER , / PER AMIT SHUKLA , J.M. THE PRESENT APPEAL HA S BEEN PREFERRED BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDER DATED 4 TH JANUARY 2012, PASSED BY THE LEARNED COMMISSIONER (APPEALS) XXXV , MUMBAI, FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143(3) R/W SECTION 147, OF THE MR. PANKAJ B. KOTECHA 2 INCOME TAX ACT, 19 61 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 2006 07 , ON THE FOLLOWING GROUNDS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN TREATING LONG TERM CAPITAL GAIN ON SALE OF EQUITY SHARE OF ` 14,78,625, AS UNEX PLAINED CASH CREDIT U/S 68. 2 . AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LEARNED COMMISSIONER (APPEALS) HAS PASSED THE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. HE SUBMITTED THAT BEFORE THE LEARNE D COMMISSIONER (APPEALS), THE AUTHORISED REPRESENTATIVE HAD SENT ONE MR. RAMAKANT SHARMA, FOR SEEKING ADJOURNMENT ON THE DATE OF HEARING. HOWEVER, THE LEARNED COMMISSIONER (APPEALS) TREATED HIM TO BE THE AUTHORISED COUNSEL FOR THE ASSESSEE AND COMPLETED TH E HEARING. THE LEARNED COUNSEL FURTHER SUBMITTED THAT SINCE THE LEARNED COMMISSIONER (APPEALS) HAS NOT PROVIDED PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE, THEREFORE, VARIOUS DOCUMENTS AND EVIDENCES WHICH ARE QUITE RELEVANT AND GO TO THE VERY RO OT OF TH E ISSUE S INVOLVED , CANNOT BE FILED AND, THEREFORE, THE ASSESSEE IS FILING LIST OF DOCUMENTS WHICH ARE IN THE NATURE OF ADDITIONAL EVIDENCE S . ALONG WITH THE SAID ADDITIONAL EVIDENCE S , A PETITION FOR ADMISSION OF ADDITIONAL EVIDENCE H AS ALSO BEEN FILED VIDE LETTER DATED 9 TH JUNE 2014. 3 . THE MAIN ISSUE INVOLVED IN THIS CASE IS WHETHER THE TRANSACTIONS OF PURCHASE AND SALE OF SHARES CAN BE TREATED AS NON GENUINE AND THE CLAIM OF LONG TERM CAPITAL GAIN ON SALE OF SHARES CAN BE TREATED AS BOGUS . THE LEARNED COMMI SSIONER (APPEALS) HAS DECIDED THE ISSUE WITHOUT EVEN CONSIDERING THE FACTS OF THE ASSESSEES CASE AND HAS GONE BY VARIOUS CASE LAWS AND FINDING S OF THE ASSESSING OFFICER. THUS, HE MR. PANKAJ B. KOTECHA 3 SUBMITTED THAT THE ADDITIONAL EVIDENCE S SHOULD BE ADMITTED AND THE MATTER SH OULD BE HEARD ON MERITS. 4 . THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, STRONGLY RELIED UPON THE ORDER OF THE LEARNED COMMISSIONER (APPEALS) AND ALTERNATIVELY SUBMITTED THAT THE MATTER CAN BE RESTORED BACK BACK TO THE FILE OF THE LEARNED COMM ISSIONER (APPEALS) TO CONSIDER THE ASSESSEES ADDITIONAL EVIDENCE AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW AND FACTS OF THE CASE. 5 . WE HAVE HEARD THE RIVAL CONTENTIONS. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS GIVEN A STATEMENT AT THE BAR THAT THE LEARNED COMMISSIONER (APPEALS) HAS NOT PROVIDED OPPORTUNITY OF HEARING TO THE ASSESSEE , BECAUSE THE NAME OF THE AUTHORISED REPRESENTATIVE WHICH HAS BEEN NOTED IN THE ORDER OF THE LEARNED COMMISSIONER (APPEALS) IS MR. DHANANJAY SHARMA, CHARTERED ACCOUN TANT, WHEREAS IN THE BODY OF THE ORDER, HE HAS MENTIONED THE NAME OF ONE MR. RAMAKANT SHARMA, HAD APPEARED AND EXPLAINED THE CASE. MR. RAMAKANT SHARMA, WAS THE ACCOUNTANT IN THE OFFICE OF MR. DHANANJAY SHARMA, AND HAD ONLY APPEARED BEFORE THE LEARNED COMMI SSIONER (APPEALS) FOR SEEKING ADJOURNMENT IN THE MATTER. THE LEARNED COMMISSIONER (APPEALS) HAD REJECTED THE ADJOURNMENT AND PROCEEDED TO DECIDE THE CASE ON MERIT AFTER NOTING THE PRESENCE OF MR. RAMAKANT SHARMA, WHO WAS NOT WELL VERSED WITH THE FACTS OF T HE CASE. TH E SAME REASON S HAVE BEEN MENTIONED IN THE PETITION FOR ADMISSION OF ADDITIONAL EVIDENCE S UNDER RULE 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1962. SINCE THE LEARNED COUNSEL FOR THE ASSESSEE HAS GIVEN THIS STATEMENT AT THE BAR AND IN THE AB SENCE OF ANY REBUTTAL BY OTHER SIDE, WE ARE , THEREFORE, OF THE OPINION THAT IN THE INTEREST OF JUSTICE, THE MATTER NEEDS TO BE RESTORED BACK TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS). CONSEQUENTLY, WE SET ASIDE THE IMPUGNED MR. PANKAJ B. KOTECHA 4 ORDER PASSED BY THE LEAR NED COMMISSIONER (APPEALS) AND RESTORE BACK THE ENTIRE ISSUE TO THE FILE OF THE LEARNED COMMISSIONER (APPEALS), WHO SHALL ADMIT THE ADDITIONAL EVIDENCE S WHICH HA VE BEEN FILED BEFORE US AND THEN DECIDE THE ISSUE IN ACCORDANCE WITH THE FACTS, MATERIAL PLACED ON RECORD AND IN ACCORDANCE WITH THE PROVISIONS OF LAW AFTER PROVIDING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THE GROUND RAISED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 6 . 6 . IN THE RESULT, ASSESSEES APPEAL IS A LLOWED FOR STATISTICAL PURPOSES. 19 TH JUNE 2014 ORDER PRONOUNCED IN THE OPEN COURT O N 19 TH JUNE 2014 SD/ - . D. KARUNAKARA RAO ACCOUNTANT MEMBER SD/ - AMIT SHUKLA JUDICIAL MEMBER MUMBAI, DATED : 19 TH JUNE 2014 / 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 / / (DY./ASSTT. REGISTRAR) , / ITAT , MUMBAI