AJMERA ASSOCIATES LTD, MUMBAI V. DCIT RG 4(1), MUMBAI

ITA 1905/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8165 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 28-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARJOO GAR O DIA
• Assessee Lawyers: NAMRATA KASALE
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA N O. 1905/MUM/2016 ( ASSESSMENT YEAR : 2011 12 ) M/S. AJMERA ASSOCIATES LTD., 63/67, CARMELLO BUILDING, PATHAKWADI, OPP. G.T. HOSPITAL L.T. MARG MUMBAI 400 002 PAN: AADCA7062J . APPELLANT V/S DCIT RG 4(1), AAYAKAR BHAVAN M.K. ROAD MUMBAI 400 020 . RESPONDENT APPELLANT BY : MS. NAMRATA KASALE RESPONDENT BY : MS. ARJOO GAR O DIA DATE OF HEARING 12/12/2017 DATE OF ORDER 12 / 12/ 2017 O R D E R PER SAKTIJIT DEY, J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 28/12/2015 OF LD. COMMI SSIONER OF INCOME TAX APPEALS 9 , MUMBAI FOR THE A.Y.2011 12. 2 ITA NO.1905/MUM/2016 M/S. AJMERA ASSOCIATES LTD., 2. BRIEFLY THE FACTS ARE , THE ASSESSEE, A DOMESTIC COMPANY , IS STATED TO BE ENGAGED IN THE BUSINESS OF SHARE BROKING AND DEALING IN SHARES . F OR THE ASSESSMENT YEAR UNDER DISPUTE ASSESSEE FILED ITS RETURN OF INCOME ON 27/09/2011 DECLARING TOTAL INCOME OF . 39, 79,300/ . THE ASSESSING OFFICER COMPLETED THE ASSESSMENT VIDE ORDER DATED 30/03/2013 MAKING A COUPLE OF DISALLOWANCES , VIZ; DISALLOWANCE OF . 6,47,145/ UNDER SECTION.14A R.W.R. 8D AND DEPRECIATION CLAIMED OF . 7,41,963/ ON BSE MEMBERSHIP CARD. BEING AGGR IEVED OF THE DISALLOWANCE MADE BY THE ASSESSING OFFICER, ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. LEARNED CIT(A) DISPOSED OFF ASSESSEES APPEAL EXPARTE SUSTAINING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 3. BEING AGGRIEVED OF THE AFORESAID ORDER OF LD. FIRST APPELLATE AUTHORITY , ASSESSES HAS FILED THE APPEAL BEFORE US INTE R ALIA ON THE GROUND THAT THE ORDER PASSED BY THE FIRST APPELLATE AUTHORITY IS IN VIOLATION OF RULES OF NATURAL JUSTICE. 4. WE HAVE HEARD THE PARTIES. THE ONLY CONTENTION OF LEARNED A UTHORIZED R EPRESENTATIVE BEFORE US IS TO RESTORE THE MATTER BACK TO THE FIRST APPELLATE AUTHORITY FOR PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE TO ARGUE THE ISSUES ON MERITS. 3 ITA NO.1905/MUM/2016 M/S. AJMERA ASSOCIATES LTD., 5. THE LEARNED DR , TH OUGH , JUSTIFIED THE EX PARTE DISPOSAL OF THE APPEAL; HOWEVER, SHE HAS NO SERIOUS OBJECTION IF ONE MORE OPPORTUNITY IS GI VEN TO THE ASSESSEE TO ARGUE ITS CASE BEFORE THE COMMISSIONER ( A PPEALS ). 6. ON PERUSAL OF THE IMPUGNED ORDER OF THE FIRST APPELLATE AUTHORITY, IT IS EVIDENT THAT THE FIRST APPELLATE AUTHORITY HAS ALLEGED THAT IN SPITE OF I SSUANCE OF NOTICES FOR HEARING , NO ONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT THE APPEAL. BE THAT AS IT MAY, CONSIDERING THE SUBMISSIONS OF THE LEARNED A UTHORIZED R EPRESENTATIVE AND THE ASSURANCE GIVEN BEFORE US THAT THE ASS ESSEE WILL APPEAR BEFORE THE COMMISSIONER (A PPEALS ) TO REPRESENT ITS CASE , T AKING A LENIENT VIEW, WE ARE INCLINED TO RESTORE THE ISSUES BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR DE NO VO ADJUDICATION ON MERITS AFTER REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER, WE DIRECT THE ASSESSEE TO RESPOND TO THE NOTICE OF HEARING TO BE ISSUED BY THE COMMISSIONER (A PPEALS ) AND APPEAR BEFORE HIM TO REPRESENT THE CASE. IN CASE OF ANY DEFAULT BY THE AS SESSEE IN COMPLYING TO OUR DIREC TION RECORDED ABOVE, LEARNED COMMISSIONER (A PPEALS ) SHALL BE AT LIBERTY TO DISPOSE OF THE APPEAL ON MERIT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 4 ITA NO.1905/MUM/2016 M/S. AJMERA ASSOCIATES LTD., 7. WITH THE AFORESAID OBSERVATIONS ISSUES ARE RESTORED BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR DE NOVO ADJUDICATION. GROUNDS RAISED ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12.12.2017 SD/ - SD/ - SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 12.12.2017 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 KARUNA SR. PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT, MUMBAI