PADMADEVI KAINYA, MUMBAI V. ACIT, CC-22, MUMBAI

ITA 2522/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79448 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 03-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIKANT MAHADEO
• Assessee Lawyers: RACHNA KANOI
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO. 2522/MUM/2013 (ASSESSMENT YEAR:2006-07) PADMADEVI KAINYA 60/62, KIKA STREET, GULALWADI MUMBAI-400 004. VS. ACIT. CC - 22 MUMBAI. (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. : AACPK 1626 Q ITA NO. 2523/MUM/2013 (ASSESSMENT YEAR:2006-07) SHRI PRADEEP KAINYA 60/62, KIKA STREET, GULALWADI MUMBAI-400 004. VS. ACIT. CC - 22 MUMBAI. (APPELLANT) (RESPONDENT) P ERMANENT ACCOUNT N O. : AACPK 1625 P ASSESSEE BY : SMT. RACHNA KANOI REVENUE BY : SHRI SHRIKANT MAHADEO DATE OF HEARING : 10/07/2014 DATE OF PRONOUNCEMENT : 18/07/2014 O R D E R PER VIJAY PAL RAO, JUDICIAL MEMBER: THESE TWO APPEALS BY THE RELATED ASSESSEES IS AGAI NST TWO SEPARATE ORDERS OF CIT(A) BOTH DATED 24/01/2013 FOR THE ASSE SSMENT YEAR 2006- 07. COMMON GROUNDS HAVE BEEN RAISED IN THESE TWO AP PEALS AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DISMISSED THE APPEAL WITHOU T GIVING PROPER OPPORTUNITY OF BEING HEARD. ITA NO.2522 & 2523/M/13 AY:06-07 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING ACTION OF THE AS SESSING OFFICER WHEREBY LONG TERM CAPITAL GAIN OF RS.54,41,116/- CL AIMED EXEMPT U/S 10 (38) OF THE INCOME TAX ACT, 1961 WAS TREATED AS UNEXPLAINED CASH CREDIT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF 2,72 ,056/- BEING ALLEGED COMMISSION PAYMENT ON LONG TERM CAPITAL GAI N. 4. THE APPELLANT PRAYS THAT THE ADDITION CONFIRMED MAY BE DELETED. 2. GROUND NO.1 IS REGARDING DISMISSING THE APPEALS OF THE ASSESSEE WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD. 3. WE HAVE HEARD THE LD. AR AS WELL AS THE LD. DR A ND CONSIDERED THE RELEVANT MATTER ON RECORD. THESE APPEALS WERE DISMI SSED BY THE CIT(A) BY THE IMPUGNED EXPARTE ORDERS ON THE REASON THAT NONE APPEARED ON BEHALF OF THE ASSESSEES. IT IS MENTIONED IN THE IMPUGNED O RDER OF THE CIT(A) THAT THESE APPEALS WERE FIXED FOR HEARING ON 13/12/2012 WHEN THE ASSESSEE SENT AN APPLICATION FOR ADJOURNMENT OF HEARING OF T HE APPEALS. AS PER THE REQUEST OF THE ASSESSEE THE HEARING OF THE APPEALS WAS ADJOURNED TO JANUARY I.E. 24/01/2013. CIT(A) RECORDED THAT NEITH ER THERE WAS ANY COMPLIANCE NOR ANY WRITTEN SUBMISSION FILED BY THE ASSESSEE ACCORDINGLY HE WAS OF THE OPINION THAT THE ASSESSEE WAS NOT GOI NG TO PURSUE THE APPEALS. ON THIS BACKGROUND THE CIT(A) DISMISSED TH E APPEALS OF THE ASSESSEE EXPARTE. THE LD. AR OF THE ASSESSEE SUBMIT TED THAT ON 24/01/2013 THE ASSESSEE SUBMITTED A LETTER REQUESTI NG FOR A FURTHER ADJOURNMENT AND THESE APPEALS WERE ADJOURNED TO 01/ 02/2013 WHEREAS THE APPEALS WERE DISMISSED-VIDE IMPUGNED ORDER PURP ORTED TO BE PASSED ON 24/01/2013. THE AR FILED COPY OF LETTER DATED 24 /01/2013 ON WHICH THE ADJOURNMENT WAS GRANTED TO 1 ST FEBRUARY, 2013 AT 11:30AM. THE BENCH DIRECTED THE LD. DR DURING THE HEARING TO GET THE SAID LETTER FILED ITA NO.2522 & 2523/M/13 AY:06-07 3 BY ASSESSEE, VERIFIED AND SUBMIT THE COMMENTS FROM THE OFFICE OF THE CIT(A). THE LD. DR FILED A LETTER DATED 09/07/2014 REGARDING VERIFICATION OF SAID LETTER DATED 24/01/2014. AS PER THE AVERMEN T IN THE LETTER DATED 09/07/2014 FROM THE OFFICE OF THE CIT(A) IT IS ADMI TTED THAT THE ASSESSEE FILED AN APPLICATION FOR ADJOURNMENT ON 20/04/2013 THOUGH THE SAID APPLICATION WAS STATED TO HAVE BEEN RECEIVED IN OFF ICE OF CIT(A) AFTER 5.00 P.M. THERE IS NO COMMENT OR REPLY TO THE FACTUM OF ADJOURNMENT OF THE HEARING OF THE APPEALS TO 01-02-2013 AT 11.30 A.M. EVEN WE DO NOT FIND ANY SUBSTANCE IN THE AVERMENT OF THE LETTER THAT TH E APPLICATION OF THE ASSESSEE SEEKING ADJOURNMENT WAS RECEIVED IN THE OF FICE OF CIT(A) AFTER 5.00 P.M. WHEN THE SAID APPLICATION BEARS THE SEAL/ STAMP OF THE OFFICE OF THE CIT(A) AS AN ACKNOWLEDGEMENT OF RECEIPT. EVEN O THERWISE ONCE AN APPLICATION FOR ADJOURNMENT IS RECEIVED AND AN ADJO URNMENT IS GRANTED TO A FURTHER DATE THE IMPUGNED ORDER PURPORTED TO BE P ASSED ON PRE-DATE ON 24/01/2013 ITSELF IS AGAINST THE PRINCIPLES OF NATU RAL JUSTICE AS THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY OF HEARING BE FORE THE IMPUGNED ORDER WAS PASSED. IN THE FACTS AND CIRCUMSTANCES O F THE CASE WE SET ASIDE THE IMPUGNED ORDERS OF CIT(A) AND THESE TWO M ATTERS ARE REMITTED TO THE RECORD OF THE CIT(A) TO DECIDE AFRESH AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. 4. IN THE RESULT APPEALS OF THE ASSESSEE ARE ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JULY, 2014. SD/- SD/- (D. KARUNAKARA RAO) ACCOUNTANT MEMBER (VIJAY PAL RAO ) JUDICIAL MEMBER MUMBAI, DATED: 18/07/2014. JV. ITA NO.2522 & 2523/M/13 AY:06-07 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.