PRADIP R. JAVERI HUF, MUMBAI V. INCOME TAX OFFICER 17(2)(5), MUMBAI

ITA 1875/MUM/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1727 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI
• Keywords: Principle of natural justice; Transactions in derivatives
• Section: 147; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.1875/M/2018 ASSESSMENT YEAR: 2010-11 PRADIP R. JAVERI HUF, PS 17, 2 ND FLOOR, ROTUNDA, STOCK EXCHANGE TOWER, BOMBAY SAMACHAR MARG, MUMBAI, MAHARASHTRA 400 001 PAN: AABHJ 9059B VS. INCOME TAX OFFICER 17(2)(5), AAYAKAR BHAVAN, MUMBAI (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI SHALIN S. DIVATIA, A.R. REVENUE BY : SHRI S.K. BEPARI, D.R. DATE OF HEARING : 27.08.2018 DATE OF PRONOUNCEMENT : 30.08.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 19.12.2017 OF THE COMMISSIONE R OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE HAS CHALLENGED THE ORDER OF LD. CIT (A) ON TWO ISSUES NAMELY THE WRONGFUL CONFIRMATION OF REOP ENING OF ASSESSMENT UNDER SECTION 147 OF THE ACT AND SECOND AGAINST TAXING RS.29,46,899/- AS INCOME FROM OTHER SOURCE UNDER SECTION 68 OF THE ACT ON THE GROUND THAT PROFIT FRO M F&O TRANSACTION BY CLIENT CODE MODIFICATION. ITA NO.1875/M/2018 PRADIP R. JAVERI HUF 2 3. THE LD. A.R., AT THE OUTSET, SUBMITTED BEFORE THE BENCH THAT ASSESSEE WAS NOT GIVEN A REASONABLE OPPORTUNIT Y TO PRESENT HIS CASE BEFORE THE AO AS THE REPLY FILED B Y THE ASSESSEE WAS NOT CONSIDERED AND THEREFORE THIS HAS RESULTED IN MISCARRIAGE OF PRINCIPLES OF NATURAL JUSTICE. THE L D. A.R. PRAYED BEFORE THE BENCH THAT THE ISSUE BE RESTORED TO THE FILE OF THE AO SO THAT THE FACTS OF THE CASE WITH ALL TH E DOCUMENTARY EVIDENCES COULD BE FURNISHED BEFORE THE AO AND TAKEN INTO ACCOUNT WHILE FRAMING DENOVO ASSESSMENT . 4. THE LD. D.R., ON THE OTHER HAND, OPPOSED THE ARGUME NTS OF THE LD. A.R BY SUBMITTING THAT THE ASSESSEE WAS GR ANTED SUFFICIENT OPPORTUNITY BY BOTH THE AUTHORITIES. 5. HAVING HEARD BOTH THE PARTIES AND PERUSING THE M ATERIAL ON RECORD, WE OBSERVE THAT THE REPLY WHICH WAS ADMIT TED FILED BY THE ASSESSEE AFTER THE DATE OF THE ASSESSMENT OR DER WAS NOT CONSIDERED BY THE AO AS IT WAS NOT POSSIBLE TO CONSIDER THE SAME AS IT WAS FILED AFTER THE DATE OF ASSESSMENT O RDER. THE LD. A.R. VEHEMENTLY SUBMITTED BEFORE US THAT THERE IS NO MISTAKE ON THE PART OF THE ASSESSEE AS HAS NOTED BY THE AO AND IN FACT THERE WAS A MISTAKE IN PUNCHING AT THE END OF THE STOCK BROKER FOR THE ASSESSEE SHOULD NOT BE PENALIZ ED. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE AS SESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO PRESENT HI S CASE. ACCORDINGLY, WE RESTORE THE ISSUE TO THE FILE OF TH E AO WITH THE DIRECTION TO DECIDE THE SAME DENOVO ON THE FACTS AN D AS PER LAW AFTER AFFORDING A REASONABLE OPPORTUNITY TO THE ASSESSEE. ITA NO.1875/M/2018 PRADIP R. JAVERI HUF 3 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30.08.2018. SD/- SD/- (JOGINDER SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 30.08.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.