Appeal details
Counselvise Citation
[2015] 134 COUNSELVISE.COM (IT) 2168 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
7 month(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
30-11-2015
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Next Hearing Date
28-10-2015
Assessment Year
2009-2010
Appeal Filed On
15-04-2015
Judgement Text
- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SANJAY ARORA , A M ./ I.T.A. NO. 2198/MUM/2015 ( / ASSES SMENT YEAR: 2009 - 10 ) SONAL JAYES CHHEDA A/1, GROUND FLOOR, SAMRAT CHS, JUHU ROAD, SANTACRUZ (W), MUMBAI - 400 054 / VS. INCOME TAX OFFICER 19(1)(4), PIRAMAL CHAMBER, LALBAUG, MUMBAI 400 012 ./ ./ PAN/GIR NO. ABHPC 2239 H ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI JITENDRA SANGHAVI / RESPONDENT BY : SHRI VISHWAS JADHAV / DATE OF HEARING : 30.11.2015 / DATE OF PRONOUNCE MENT : 30.11.2015 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 34 , MUMBAI (CIT(A) FOR SHORT) DATED 12.3.2015 , DISMISSING THE A SSESSEES APPEAL CONTES TING ITS ASSESSMENT U/S.143(3) R/W S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2009 - 10 DATED 21/2/2014 . 2 ITA NO. 219 8 /MUM/2015 (A.Y. 200 9 - 10 ) SONAL JAYES CHHEDA VS. ITO 2. THE APPEAL, PER ITS SEVERAL GROUNDS, RAISES THE ISSUE OF THE ASSESSMENT OF INCOME RETURNED BY WAY OF SA LE OF SHARES, BEING LONG TERM CAPITAL ASSETS, I.E., AS LONG TERM CAPITAL GAIN , AS INCOME FROM UNDISCLOSED SOURCE S , REGARDING THE TRANSACTIONS OF PURCHASE AND/OR SALE OF SHARES AS BOGUS. 3. THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL , W OULD AT THE OUTSET SUBMIT THAT WHILE A CASE WAS MADE OUT , GIVING COMPLETE DETAILS OF THE TRANSACTIONS , VIDE LETTER DATED 24.2.2014, THE DATE OF HEARING, NO COGN IZA NCE OF THE SAME WAS TAKEN BY THE ASSESSING OFFICER (A.O.). THE LD. CIT(A), EVEN THOUGH HE REP RODUCE S THE SAID LETTER AT PARA 5 OF HIS ORDER, HAS MERELY CONFIRMED THE ASSESSMENT AS MADE. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) WOULD , IN REPLY, SUBMIT THAT THE LETTER DATED 24.2.2014 HA D RIGHTLY NOT BEEN TAKEN INTO ACCOUNT BY THE A .O. IN - AS - MUCH HE HAD PASSED THE ORDER OF ASSESSMENT ON 21.2.2014. AT THIS STAGE, THE LD. AR WOULD FURNISH THE LETTER DATED 24.2.2014, WHICH BEAR S THE RECEIPT DATE 21.2.2014 , STATING THAT THE SAME WAS FILED, AS INSTRUCTED BY THE A.O. , IN TAPAL. IN ANY CASE OF THE MATTER, THE SAME HAVING BEEN TAKEN ON RECORD BY THE LD. CIT(A), IN WHOSE ORDER THAT BY THE A.O. MERGES, THE DATE OF FILING THE LETTER WOULD LOOSE ITS SIGNIFICANCE. 4. THE PARTIES WERE HEARD, AND THE MATERIAL ON RECORD PERUSED. ADMITTEDLY, THE A.O. HAS NOT CONS IDERED THE ASSESSEES ARGUMENT S , O R AS THE CASE AS MADE OUT; HIS ORDER BEARING NO REFERENCE TO THE LETTER DATED 24.2.2014 (APPARENTLY FILED ON 21/2/2014) , ALONG WITH ACCOMPANYING DOCUMENT S, IF ANY. THIS FACT OUGHT TO HAVE BEEN RAISED BEFORE THE FIRST APPEL LATE AUTHORITY, AND WHICH H AS APPARENTLY BEEN NOT . WHY? THE LD. CIT(A) , ON HIS PART, EVEN AS HE RE PRODUCES THE ASSESSEES LETTER SUPRA, UPHOLDS THE ASSESSMENT ORDER IN VIEW OF THE FACTS AS DISCUSSED THEREIN, AND WHICH ADMITTEDLY BEARS NO CONSIDERATION OF T HE ASSESSEES CASE. THE ASSESSEE BEING A BENEFICIARY OF THE ALLEGED ACCOMMODATION ENTRIES , AS DEPOSED BY 3 ITA NO. 219 8 /MUM/2015 (A.Y. 200 9 - 10 ) SONAL JAYES CHHEDA VS. ITO MUKESH CHOKSI, MAY BE A VALID GROUND FOR REOPENING THE ASSESSMENT, WHICH IS NOT UNDER CHALLENGE, BUT CANNOT ITSELF BE CONCLUSIVE OF THE MATTER , FOR WHI CH THE RELEVANT FACTS AND INCIDEN TS , INCLUDING THE CIRCUMSTANCES, WOULD REQUIRE BEING BROUGHT ON RECORD AND APPRAISED , ISSUING DEFINITE FINDINGS OF FACT. RELIANCE BY THE ASSESSEE ON THE DECISION BY THE T RIBUNAL IN PUSHPA M. SHAH VS. ITO (IN ITA NO. 436/MUM /2013 DATED 22.4.2014) WOULD, IN THIS VIEW OF THE MATTER, BE OF LITTLE MOMENT. TRUE, AS ALSO ARGUED BY THE LD. AR, THE ASSESSEE CANNOT BE HELD RESPONSIBLE FOR NON - CONSIDERATION OF HIS CASE BY THE ASSESSING AUTHORITY, AND SHOULD THEREFORE NOT SUFFER A SE COND INNINGS BEFORE HIM ON THAT COUNT. HOWEVER, AS APPARENT, THE ASSESSEE DID NOT APPEAR BEFORE THE A.O. ON 21.2.2014, FOR WHICH DATE ONLY THE HEARING WOULD HAVE BEEN FIXED BY H IM , AND NOT 24 .2.2014, AS STATED BY THE LD. AR . AGAIN, WHY AS AFORE - NOTED, THIS ASPECT NOT RAISED BEFORE THE LD. CIT(A) ? BE THAT AS IT MAY, THE ASSESSEES SAID PLEA , TO BE ADOPTED AND MADE THE BASIS FOR ADJUDICATION , WOULD REQUIRE AN INSPECTION OF THE ASSESSMENT RECORD, SO AS TO ENABLE PROPER VERIFICATION. THIS BECOMES ALL THE MORE I MPORTANT AS THE LETTER (DATED 24.2.2014) , THOUGH BEARS THE STAMP OF 21.2.2014, HAS NO RECEIPT NUMBER ASCRIBED ON IT. FURTHER, F OR ALL WE KNOW, IT MAY HAVE BEEN FURNISHED ONLY LATE EVENING, I.E., AFTER THE CLOSURE OF THE HEARING OR EVEN THE PASSING OF THE O RDER. AGAIN, T HIS ASPECT OUGHT TO HAVE BEEN BROUGHT BY THE ASSESSEE TO THE NOTICE OF THE LD. CIT(A), WHOSE ORDER IS , AGAIN, WITHOUT CONSIDERATION OF THE ASSESSEES CASE IN - AS - MUCH AS THE SAME HAD NOT BEEN CONSIDERED BY THE A.O., WHOSE ORDER HE MERELY CONF IRMS. THERE HAS THUS BEEN IN EFFECT N O ADJUDICATION AT ANY STAGE . EVEN IF THEREFORE THE ASSESSEES LETTER IS FOUND TO BE ON THE ASSESSMENT FILE , THE MATTER WOULD REQUIRE BEING RESTORED TO THE FILE OF THE LD. C IT(A). T HE LD. AR, WOULD, UPON THIS BEING OBSE RVED BY THE BENCH, SUBMIT THAT HE WOULD P REFER THAT THE MATTER IS RESTORED TO THE FILE OF THE A.O., SO THAT HE HAS DUE OPPORTUNITY TO PRESENT ALL THE FACTS , AS WELL AS THE ASSESSEES CASE BEFORE HIM. THE LD. DR DID NOT OBJECT. 4 ITA NO. 219 8 /MUM/2015 (A.Y. 200 9 - 10 ) SONAL JAYES CHHEDA VS. ITO U NDER THE CIRCUMSTANCES AND I N VIEW OF THE FOREGOING , IT IS ONLY CONSIDERED PROPER THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE ASSESSING AUTHORITY FOR FRESH ADJUDICATION. THE ASSESSEE ALSO CONTEST S THE QUANTUM O F THE ADDITION IN - AS - MUCH AS IT IS CLAIMED THAT A PART OF THE GAIN S (RS.1,48,584/ - ) STANDS BROUGHT TO TAX FOR AN EARLIER YEAR ( A .Y. 2008 - 09). THE ASSESSEE I S AT LIBERTY TO RAISE THIS , AS WELL AS ANY OTHER FACTUAL AND LEGAL ASPECT OF THE MATTER , BEFORE HIM. I DECIDE ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 30, 201 5 SD/ - (S ANJAY ARORA) / A CCOUNTANT MEMBER MUMB AI ; DATED : 30 . 11 .201 5 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT (A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI
Mehul