ITO 13(3)(1), MUMBAI V. MANMOHAN SINGH KOHLI, MUMBAI

ITA 2722/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8417 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2002-2003
• Appeal Filed On: 08-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 144

Judgement Text

I.T.A NO.2722/ MUM/2010 MANMOHAN SINGH KOHLI 1 IN THE INCOME TAX APPELLATE TRIBUNAL, F BENCH, MUMBAI. [ CORAM: PRAMOD KUMAR, AM AND R.S.PADVEKAR, JM ] I.T.A NO.2722/ MUM/2010 ASSESSMENT YEAR: 2002-03 INCOME TAX OFFICER 13(3)(1) .. APPELLANT R.NO.428, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. VS MANMOHAN SINGH KOHLI ,. RESPONDEN T MAHESH CHAMBERS, 391, NARSHI NATHA STREET, MUMBAI. PA NO.AADPK 6424 F APPEARANCES: MALATHI SRIDHARAN, FOR THE APPELLANT K.SHIVRAM , FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CAL LED INTO QUESTION CORRECTNESS OF CIT(A)S ORDER DATED , 28 TH JANUARY, 2010, IN THE MATTER OF ASSESSMENT UNDER SECTION 144 R.W.S 147 OF THE INCOME TAX ACT, 19 61, FOR THE ASSESSMENT YEAR 2002-03. 2. GROUND NO.1(I) READS AS UNDER:- THE LD CIT (A), ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE AND IN LAW, ERRED IN ALLOWING THE GAIN ON LONG TERM BASIS BY INVO KING PROVISION OF INDEXATION U/S.48 OF THE ACT TO THE GAIN ARISING OUT OF 25% SHARE BEQUEATHED IN THE APPELLANT FOR WHICH COST IS NIL IN THE HANDS OF THE PREVIOUS OWNER IN PURSUANCE OF PROVISION OF SECTION 49(1) OF THE ACT, TH E SHARE ACQUIRED BY THE DECEASED IN SUCCESSION. I.T.A NO.2722/ MUM/2010 MANMOHAN SINGH KOHLI 2 3. LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY AGREE THAT THE THIS ISSUE IS COVERED, IN FAVOUR OF THE ASSESSEE, BY THE HONBLE BOMBAY HIGH COURTS JUDGEMENT IN THE CASE OF COMMISSIONER OF INCOME-T AX V. SHAPOORJI PALLONJI AND CO. LTD. 318 ITR 417 (BOM), EVEN AS LE ARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE STAND OF THE ASSESSI NG OFFICER. IN VIEW OF THIS, RESPECTFULLY FOLLOWING THE JUDGEMENT OF THE H ONBLE BOMBAY HIGH COURT IN THE CASE OF SHAPOORJI PALLONJI AND CO. (SU PRA) UPHOLD THE GRIEVANCE OF THE ASSESSEE. 4. THIS GROUND IS THUS DISMISSED.. 5 IN GROUND NO.1(II), THE REVENUE IS AGGRIEVED THAT THE CIT (A) ERRED IN NOT FOLLOWING THE RULE 46A OF THE I.T.RULES. 6. AS FAR AS THIS GROUND IS CONCERNED, THE SHORT GRIEVA NCE OF THE REVENUE IS THAT THE CIT (A) SHOULD NOT HAVE ACCEPTED THE ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF I.T.RULES, 1962 BUT THEN IT IS NOT IN DISPUTE THA T THE AO HAS ALREADY BEEN HEARD ON THE ADDITIONAL EVIDENCE SO FILED INASMUCH AS REMAND RE PORT WAS CALLED FROM THE ASSESSING OFFICER DURING THE COURSE OF APPELLATE PROCEED INGS, A COPY OF THE SAID REPORT BEARING NO.ITO 13(3)/1/REMAND REPORT/2009-10 DATED 26.10.2009, IS PLACED ON RECORD BEFORE US. IN VIEW OF THE FACT THA T AS THE AO HAS BEEN HEARD ON THE ISSUE AND THEN THE ADDITIONAL EVIDENCE ADMITTED AFTE R GIVING DUE OPPORTUNITY TO THE AO, WE SEE NO SUBSTANCE IN THE TECHNICAL GROUND RAISED BY THE REVENUE. THIS GROUND IS THUS DISMISSED. 7. IN THE RESULT, THE APPEAL STANDS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 23 RD FEBRUARY, 2011 SD/- (R.S.PADVEKAR ) (JUDICIAL MEMBER) SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 23 RD FEBRUARY, 2011 I.T.A NO.2722/ MUM/2010 MANMOHAN SINGH KOHLI 3 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),24, MUMBAI 4. COMMISSIONER OF INCOME TAX, 13 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH F, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI I.T.A NO.2722/ MUM/2010 MANMOHAN SINGH KOHLI 4