ITO 6 (1) (4), MUMBAI V. BLOSSOM DEVELOPERS PVT. LTD., MUMBAI

ITA 2747/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0440 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 13-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: SANTOSH ZENDE
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCHES, MUMBAI , , , BEFORE SHRI JOGINDER SINGH , J UDICIAL M EMBER, A ND SHRI RAM T KOCHAR , A CCOUNTANT M EMBER ITA NO . 2747 /MUM/201 6 ASSESSMENT YEAR: 20 1 0 - 11 INCOME TAX OFFICER - 6(1)(4), MUMBAI. / VS. M/S. BLOSSOM DEVELOPERS PVT. LTD., B - 11, KASTURCHAND PREMISES, M.C. JAWALE MARG, DADAR (W), MUMBAI 28. ( / REVENUE) ( /ASSESSEE) P.A. NO. AABCB 7935 P / ASSESSEE BY SHRI SANTOSH ZENDE - AR / REVENUE BY SHRI T.A. KHAN - DR / DATE OF HEARING : 13 / 02 /201 8 / DATE OF PRONOUNCEMENT 13 / 02 /201 8 / O R D E R PER JOGINDER SINGH ( JUDICIAL MEMBER ) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 13 /01/2016 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI DIRECTING THE ASSESSING OFFICER TO VERIFY THE ITA NO . 2747 /MUM/201 6 ( M/S. BLOSSOM DEVELOPERS PVT. LTD. ) 2 ADDITIONS MADE ON SUBSTANTIVE B ASIS IN THE ASSESSMENT ORDER AND IN THE RECORDS OF M/S. UNIVERSAL ESTATE DEVELOPERS , WHEREAS THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS NO POWER TO DIRECT THE ASSESSING OFFICER FOR VERIFICATION ON SUBSTANTIVE ISSUE AND THE SAME AMOUNTS TO RESTORING T HE ISSUE TO THE ASSESSING OFFICER, WHICH POWER IS NOT AVAILABLE WITH THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 2. DURING HEARING, THE LD. DR SHRI T.A. KHAN ADVANCED ARGUMENTS , WHICH IS IDENTICAL TO THE G R OUND RAISED BY CONTENDING THAT THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) HAS NO POWER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER AND WAS EXPECTED TO ADJUDICATE THE ISSUE ON MERITS. 3 . ON THE OTHER HAND, SHRI SANTOSH ZENDE , LD. COUNSEL FOR THE ASSESSEE DEFENDED THE IMPUGNED ORDER . 4. W E HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF BUILDER AND DEVELOPER, DECLARED NIL INCOME IN ITS RETURN FILED ON ITA NO . 2747 /MUM/201 6 ( M/S. BLOSSOM DEVELOPERS PVT. LTD. ) 3 31/03/2011 . THE CASE OF THE ASS ESSEE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) OF THE ACT DETERMINING THE TOTAL INCOME OF RS. 1,02,27,060/ - ON 28/03/2013 . THE ASSESSEE IS THE OWNER AN OLD BUILDING KNOWN AS BAWLA HOUSE. THE ASSESSEE ENTERED INTO A DEVELOPMENT AGREEMENT WITH M/S.UNIVERSAL ESTATE DEVELOPERS FOR THE DEVELOPMENT OF THE AFORESAID PROPERTY , VIDE AGREEMENT DATED 24/02/2003 . AS PER THE DEVELOPMENT AGREEMENT, THE DEVELOPER WAS TO BEAR THE COST OF CONSTRUCTION AND TO PROVIDE FREE OF COST A SUITABLE ACCOMMODATION TO REHABILITATE THE TENANTS/OCCUPANTS OF THE OLD BUILDING IN THE PROPOSED NEW BUILDING. THE LD. ASSESSING OFFICER MADE ADDITION OF RS. 1,02,27,060/ - ON THE BASIS OF TRANSACTIONS REPORTED IN AIR REGARDING THE SALE OF P ROPERTY. THE STAND OF THE ASSESSEE WAS THAT NECESSARY DETAILS WERE FURNISHED VIDE LETTER DATED 16/11/2012 AND THE TOTAL SALE CONSIDERATION, AS PER AGREEMENT, HAS BEEN ACCOUNTED BY M/S. UNIVERSAL ESTATE DEVELOPERS. ON APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) NONE WAS PRESENT FOR THE DEPARTMENT AND FINALLY, ON CONSIDERATION OF REMAND REPLY AND REPLY OF ITA NO . 2747 /MUM/201 6 ( M/S. BLOSSOM DEVELOPERS PVT. LTD. ) 4 THE ASSESSEE TO THE REMAND REPORT , THE LD. ASSESSING OFFICER WAS DIRECTED TO VERIFY THE RECORD OF M/S. UNIVERSAL ESTATE DEVELOPERS . SINCE T HE REMAND REPORT WAS SOUGHT FROM THE LD. ASSESSING OFFICER , WE ARE OF THE VIEW THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL) INSTEAD OF REMANDING BACK TO THE ASSESSING OFFICER WAS EXPECTED TO ADJUDICATE THE ISSUE ON MERITS. THUS, THE LD. COMMISSIONER O F INCOME TAX (APPEALS) IS DIRECTED TO ADJUDICATE THE ISSUE ON MERITS AFRESH IN ACCORDANCE WITH LAW. THE ASSESSEE AS WELL AS THE REVENUE BE GIVEN OPPORTUNITY OF BEING HEARD . THUS, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. FINALLY, T HE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES . THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 13 / 02/2018 . S D/ - ( RAMIT KOCHAR ) SD/ - (JOGINDER SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 13/02/18 VR. , S. P.S/. . . , ITA NO . 2747 /MUM/201 6 ( M/S. BLOSSOM DEVELOPERS PVT. LTD. ) 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. , ( ) / THE CIT, MUMBAI. 4. / CIT(A) - , MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI