SOFIYA AFZAL BIRYA, MUMBAI V. ITO WD 2(3)-2, MUMBAI

ITA 2596/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55000 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 10-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 05-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G P TRIVEDI
• Keywords: Reopening of assessment
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E : MUMBAI BEFORE SHRI N.V. VASUDEVAN, (JUDICIAL MEMBER) AND SHRI RAJENDRA SINGH,(ACCOUNTANT MEMBER) ITA NO.2596/MUM/2010 ASSESSMENT YEAR : 2005-06 MS. SOFIYA AFZAL BIRYA MOHAMMED HUSEN MERCHANT JAVED ENTERPRISES 265 BAZAR GATE BIRYA HOUSE FORT MUMBAI-400 001. ..( APPELLANT ) P.A. NO. (AAAPB 6895 J) VS. INCOME TAX OFFICER WARD - 2(3)(2) MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI JAYANT BHAT RESPONDENT BY : SHRI G. P. TRIVEDI DATE OF HEARING : 17.8.2011 DATE OF PRONOUNCEMENT : 24 TH AUGUST, 2011 O R D E R PER RAJENDRA SINGH (AM). THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER D ATED 4.1.2010 OF CIT(A) FOR THE ASSESSMENT YEAR 2005-06. TH E ASSESSEE IN THIS APPEAL HAS RAISED DISPUTES REGARDING NATURE OF INCO ME FROM SUB- LEASING OF PREMISES AND ALLOWABILITY OF EXPENSES RELATIN G THERETO. IN ADDITION THE ASSESSEE HAS ALSO FILED AN ADDITIONAL GROUN D CHALLENGING THE LEGAL VALIDITY OF REOPENING OF ASSESSMENT. ITA NO.2596/M/10 A.Y:05-06 2 2. THE LD. AR FOR THE ASSESSEE AT THE TIME OF HEARING O F THE APPEAL POINTED OUT THAT THE ASSESSEE HAD ALSO FILED REVISED GROU ND OF APPEAL BEFORE THE CIT(A) VIDE LETTER DATED 15.12.2009 IN W HICH ADDITIONAL GROUNDS WERE RAISED RELATING TO LEGAL VALIDITY OF REA SSESSMENT PROCEEDINGS AND THE ASSESSMENT BEING BARRED BY LIMITATION UNDER SECTION 153(2). IT WAS SUBMITTED THAT CIT HAD NOT ADJU DICATED THE ABOVE GROUNDS IN THE APPELLATE ORDER PASSED BY HIM. I T WAS ALSO POINTED OUT THAT THE ASSESSEE HAD ALSO FILED AN APPLICATI ON UNDER SECTION 154 OF THE ACT DATED 10.2.2010 REQUESTING CIT( A) TO AMEND THE ORDER WHICH HAD NOT BEEN DONE. IT WAS ACCORDINGLY REQUESTED THAT ADDITIONAL GROUND FILED BEFORE THE TRIBUNAL MAY BE ADMITTED FOR ADJUDICATION OR MATTER MAY BE SENT BACK TO CIT(A) FOR ADJUDICATING ALL THE GROUNDS FILED BEFORE HIM. THE LD. DR HAD NO OB JECTION IF THE MATTER WAS REMANDED BACK TO CIT(A). 3. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. IN THE GROUNDS OF APPEAL FILED ALONG WITH FORM NO.35 BEFORE CIT(A), ASSESSEE HAD DISPUTED THE NATURE OF INCOME FROM SU B-LEASING OF PROPERTY AND ALLOWABILITY OF EXPENSES. THE ASSESSEE FILED REVISED GROUND VIDE LETTER DATED 15.12.2009 IN WHICH LEGAL V ALIDITY OF RE- ASSESSMENT WAS CHALLENGED AND A GROUND WAS ALSO RAISED REGAR DING ASSESSMENT BEING BARRED BY LIMITATION. A COPY OF THE SAI D LETTER IS PLACED ON RECORD. PERUSAL OF THE ORDER OF CIT(A) SHOWS THAT HE HAD ADJUDICATED ONLY ORIGINAL GROUND REGARDING NATURE OF INCOME FROM SUB- LEASING OF PROPERTY AND DISALLOWANCE OF EXPENSES RELATIN G THERETO. THE CIT(A) HAS NOT ADJUDICATED OTHER GROUNDS FILED BEFORE HIM VIDE LETTER DATED 15.12.2009 NOR HAS PASSED ANY ORDER FOR NOT CONSID ERING THOSE GROUNDS. WE, THEREFORE, REMAND THE MATTER BACK TO T HE CIT(A) FOR PASSING FRESH ORDER AFTER ADJUDICATING ALL THE GROUNDS O F APPEAL. ITA NO.2596/M/10 A.Y:05-06 3 4. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24.8.2011. SD/- SD/- (N.V. VASUDEVAN) (RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 24.8.2011. JV. 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.