M/S IMMENSE INFRASTRUCTURE P. LTD, MUMBAI V. DY CIT - 10(1), MUMBAI

ITA 1856/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4467 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 21-10-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Notional interest
• Section: 143(3); 13

Judgement Text

ITA NO. 1856/MUM/2020 ASSESSMENT YEARS: 2012 - 13 PAGE 1 OF 3 INCOME TAX APPELLATE TRIBUNAL MUMBAI C BENCH, MUMBAI [CORAM: PRAMOD KUMAR (VICE PRESIDENT) AND RAVISH SOOD (JUDICIAL MEMBER)] ITA NO. 1856/MUM/2020 ASSESSMENT YEARS: 2012 - 13 M/S. IMMENSE INFRASTRUCTURE PVT LTD. ..... APPELLANT PLOT NO.# D - 197, T.T.C, INDUSTRIAL AREA, MIDC, TURBHE, NAVI MUMBAI 400705[PAN: AABCI4116M] VS. DEPUTY COMMISSIONER OF TAX OFFICER - 10 (1) MUMBAI. ..RESPONDENT APPEARANCES: PAYAL DEDHIYA FOR THE APPELLANT SHREEKALA PARDESHI FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : SEPTEMBER 30 , 2021 DATE OF PRONOUNCEMENT : SEPTEMBER 30 , 2021 O R D E R PER PRAMOD KUMAR, VP: 1. BY WAY OF THIS APPEAL, THE ASSESSEE - APPELLANT HAS CHALLENGED THE CORRECTNESS OF THE ORDER DATED 28 TH OCTOBER 2019, PASSED BY THE LEARNED CIT(A) IN THE MATTER OF ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2011 - 12. 2. GRIEVANCES RAISED BY THE APPELLANT ARE AS FOLLOWS: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 22, MUMBAI HAS ERRED IN PASSING THE ORDER EX - PARTE T HEREBY VIOLATING THE PRINCIPLE OF NATURAL JUSTICE. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 22, MUMBAI HAS ERRED IN CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER OF ASSESSING THE RENTAL INCOME OF RS. 64,12,500/ - AND SERVICE TAX CHARGED THEREON OF RS. 6,60,500/ - UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' INSTEAD OF 'PROFITS AND GAINS OF BUSINESS AND PROFESSION.' ITA NO. 1856/MUM/2020 ASSESSMENT YEARS: 2012 - 13 PAGE 2 OF 3 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 22, MUMBAI HAS ERRED IN CONFIRMING THE ADDITION OF PROPER TY TAX OF RS. 1,71,000/ - AS NOTIONAL INTEREST BEING 6 PER CENT OF INTEREST FREE DEPOSITS OF RS. 28,50,000/ - WHILE COMPUTING INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 4. WITHOUT PREJUDICE TO OUR CONTENTION THAT LEASE RENTAL INCOME IS CHARGEABLE TO TAX UNDER THE HEAD PROFITS AND GAINS OF BUSINESS AND PROFESSION, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 22, MUMBAI HAS ERRED IN NOT ALLOWING DEDUCTION OF RS. 10,12,597/ - PAID TOWARDS INTER EST FOR ACQUISITION OF THE PROPERTY U/S. 24(B) OF THE ACT. 3. WHEN THIS APPEAL WAS CALLED FOR HEARING IT WAS NOTICED THAT THE IMPUGNED ORDER IS PASSED EX - PARTE DISMISSING THE APPEAL PRIMARILY ON GROUND THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEAL AS EVIDENT FROM THE FACT THAT THE SPITE HAVING BEEN GIVEN OPPORTUNITIES OF HEARING, THE ASSESSEE HAS NOT AVAILED HIMSELF OF THESE OPPORTUNITIES. 4. MS. PAYAL DEDHIYA , LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE NON APPEARANCE BEFORE THE LEARNED CIT(A) WAS AN INADVERTENT MISTAKE ON ACCOUNT OF COMMUNICATION GAP AND GIVEN AN OPPORTUNITY FOR HEARING ONCE AGAIN, THE ASSESSEE WILL FULLY CORPORATE IN ASSURING EXPEDITIOUS DISPOSAL OF APPEAL ON MERITS AND DULY ATTEND TO THE PROCEEDING BEFORE THE LEARNED CIT(A). IT WAS THUS PRAYED THAT THE MATTER BE RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION ON MERITS AFTER GIVING ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. MS. SHREEKALA PARDESHI , LEARNED SENIOR DEPARTMENTAL REP RESENTATIVE DID NOT OPPOSE THE PRAYER FOR MATTER BEING RESTORED TO THE FILE OF THE LEARNED CIT(A) FOR FRESH ADJUDICATION AFTER GIVING GET ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE, EVEN THOUGH SHE DID POINT OUT THAT THE ASSESSEE WAS GIVEN A FAIR OPPOR TUNITY OF HEARING BY THE LEARNED CIT(A). 6. IN VIEW OF THE ABOVE AND THAT THE CONSENT OF THE PARTIES, WE DEEM IT FIT AND PROPER RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION ON MERITS, IN ACCORDANCE WITH THE LAW, BY WAY OF SPEAKING ORDER AND AFTER GIVING YET ANOTHER REASONABL E OPPORTUNITY OF HEARING. ORDERED, ACCORDINGLY. 9. IN THE RESULT, THIS APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS INDICATED ABOVE . PRONOUNCED IN THE OPEN COURT TODAY ON THE 30 TH DAY OF SEPTEMBER2021. S D / - S D / - RAVISH SOOD PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) MUMBAI, DATED THE 30 TH DAY OF SEPTEMBER 2021. COPIES TO: (1) THE APPLICANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE ITA NO. 1856/MUM/2020 ASSESSMENT YEARS: 2012 - 13 PAGE 3 OF 3 BY ORDER TRUE COPY ASSISTANT REGISTRAR/SR.PS INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI