SHWETA KISHORE BHATIA, MUMBAI V. DCIT WD 19(3), MUMBAI

ITA 2741/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3711 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2010-2011
• Appeal Filed On: 08-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER IT A NO. 2741 /MUM/20 15 : (A.Y : 20 10 - 11 ) SHWETA KISHORE BHATIA 3/303, PLOT NO. 234, GULMOHAR CATHERINE CHS, 28 TH ROAD, BANDRA (W), MUMBAI 400 050. PAN : AKJPB2581Q ( APPELLANT ) VS. DCIT, WARD - 19(3), MUMBAI (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI A.K. KARDAM DATE OF HEARING : 20 /0 7 /2016 DATE OF PRONOUNCEMENT : 12 /0 8 /2016 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 34 , MUMBAI DATED 30 . 03 .20 15 , PERTAINING TO THE ASSESSMENT YEAR 20 10 - 11 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER DATED 30 . 03 .20 13 UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. INSPITE OF ISSUANCE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING, THEREFORE, WE PROCEED TO DECIDE THE 2 SHWETA KISHORE BHATIA ITA NO. 2741/MUM/2015 APPEAL EX PARTE QUA THE ASSESSEE AFTER HEARI NG THE LD. DR ON MERIT IN TERMS OF RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963. 3. IN THIS APPEAL, THE FIRST AND THE FOREMOST PLEA OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN DISPOSING THE APPEAL OF THE ASSESSEE EX PARTE WITHOUT DECIDING ON MERITS OF THE GROUNDS RAISED BEFORE HIM. 4. IN BRIEF, THE RELEVANT FACTS ARE THAT ASSESSEE IS AN INDIVIDUAL WHOSE RETURN OF INCOME FOR ASSESSMENT YEAR 2010 - 11 WAS SUBJECT TO SCRUTINY ASSESSMENT WHEREBY THE TOTAL INCOME WAS ASSESSED AT THE RETURNED INCOME OF RS.2,11,20,740/ - BUT THE INCOME ARISING FROM SALE OF SHARES W AS COMPUTED UNDER THE HEAD PROFITS & GAINS OF BUSINESS OR PROFESSION INSTEAD OF THE HEAD CAPITAL GAINS AS DECLARED BY THE ASSESSEE. THIS WAS CHALLENGED IN APPEAL BEFO RE THE CIT(A) , WHO HAS DISMISSED THE APPEAL WITHOUT GOING INTO THE MERITS OF THE CASE AS ACCORDING TO HIM ASSESSEE WAS NOT INTERESTED IN PURSUING THE APPEAL BECAUSE NOBODY APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF ISSU ANCE OF NOTICE OF HEARING. 5. A T THE TIME OF HEARING, IT WAS POINTED OUT TO THE LD. DR THAT THE CIT(A) HAS DISMISSED THE APPEAL WITHOUT DECIDING ON MERITS THE GROUNDS RAISED BEFORE HIM, WHICH IS UNSUSTAINABLE. IT WAS THEREFORE POINTED OUT THAT THE MATTER DESERVES TO BE REVISITED BY THE CIT(A) AS PER LAW. 6. HAVING CONSIDERED THE IMPUGNED ORDER AND THE SUBMISSIONS OF THE LD. DR, WE FIND THAT IN THE PRESENT CASE THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED BY THE COMMISSIONER (APPEALS) WITHOUT GOING INTO 3 SHWETA KISHORE BHATIA ITA NO. 2741/MUM/2015 THE MERITS OF THE ISSUES RAISED BEFORE HIM. SEC. 250(6) OF THE ACT PRESCRIBES THAT THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR SUCH A DECISION. OSTENSIBLY, THE CIT(A) IS OBLIGATED TO DISPOSE OF THE APPEAL IN THE MANNER PRESCRIBED IN SEC. 250(6) OF THE ACT, WHICH REQUIRES THAT THE ISSUES RAISED BEFORE HIM BY WAY OF THE GROUNDS OF APPEAL ARE ADDRESSED, DECISION RENDERED THEREON BY STATING THE REASONS FOR SUCH A DE CISION. THE SAID APPROACH IS CONSPICUOUS BY ITS ABSENCE IN THE IMPUGNED ORDER OF THE CIT(A), WHEREIN THE APPEAL HAS BEEN DISMISSED IN LIMINE WITHOUT ADVERTING TO THE MERITS OF THE GROUNDS OF APPEAL RAISED BEFORE HIM. THEREFORE, ON THIS COUNT ITSELF, THE IMPUGNED ORDER OF CIT(A) IS UNSUSTAINABLE. BE THAT AS IT MAY, WE DEEM IT FIT AND PROPER TO SET - ASIDE THE IMPUGNED ORDER OF CIT(A) AND REMAND THE APPEAL BACK TO HIS FILE FOR ADJUDICATION AFRESH AS PER LAW AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNIT Y OF BEING HEARD. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 2 T H AUGUST, 2016. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 1 2 T H AUGUST , 2016 * SSL * 4 SHWETA KISHORE BHATIA ITA NO. 2741/MUM/2015 COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, I BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI