SUNILKUMAR O KOCHHAR, MUMBAI V. ACIT 19(3), MUMBAI

ITA 2937/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8746 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 27-07-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 16-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTINE
• Assessee Lawyers: SUBRAMANIYAM
• Keywords: Opportunity of being heard; Deemed dividend

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI P K BANSAL, VICE PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.2937 /MUM/2013 (ASSESSMENT YEAR: 2008-09) SHRI SUNILKUMAR O. KOCHHAR VS. ASSISTANT COMMISSIONER OF 601, 6TH FLLOR, AMORE 2ND & 4TH ROAD, NEAR KHAR KABUTARKHAN, KHAR (W) MUMBAI 400052 INCOME TAX - 19(3) MUMBAI PAN AAOPK8359A APPELLANT RESPONDENT APPELLANT BY: SHRI SUBRAMANIYAM RESPONDENT BY: SHRI V. JUSTINE DATE OF HEARING: 30.10.2017 DATE OF PRONOUNCEMENT: 31.10.2017 O R D E R PER P.K. BANSAL, VICE PRESIDENT THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-30, MUMBAI DATED 04.02.2013 FOR A.Y. 2008-09 . 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN AS MANY AS 12 GROUNDS OF APPEAL. ALL THESE GROUNDS MAINLY RELATE TO THE ISSU E REGARDING ADDITION MADE UNDER SECTION 2(22)(E) OF THE INCOME TAX ACT. 3. AT THE OUTSET WE NOTED THAT THE ASSESSEE HAS TAKEN GROUND NO. 8 BEFORE US WHICH READS AS UNDER: - 8) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE C.I.T.(A) ERRED IN NOT GIVING ANY FINDING TO THE ADDITIONAL GROUND OF APPEAL WHICH WAS SUBMITTED TO THE C.I.T.(A) ON 09/01/2013 IN TH E COURSE OF HEARING AND WHICH RUNS AS FOLLOWS: - 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APP ELLANT WAS NOT GIVEN OPPORTUNITY OF BEING HEARD TO SUBMIT HIS REPLY ITA NO. 2937/MUM/2013 SHRI SUNILKUMAR O. KOCHHAR 2 ON THE VARIOUS REASONING AS RELIED UPON BY THE ASSE SSING OFFICER IN MAKING ADDITION OF RS.2,15,96,360/- BEIN G INCOME FROM DEEMED DIVIDEND U/S. 2(22)(E) IS MADE. 4. AFTER HEARING RIVAL SUBMISSIONS ON THIS GROUND IN O UR OPINION, WILL HAVE BEARING ON THE DECISION OF OTHER GROUNDS. WE F OUND THAT THE ASSESSEE HAD TAKEN THIS GROUND AS AN ADDITIONAL GROUND BEFOR E THE CIT(A) ON 09.01.2013. THE CIT(A) WHILE ADJUDICATING THE APPEA L OF THE ASSESSEE HAS NOT DECIDED THE GROUND. NEITHER HE HAS ADMITTED NOR REJECTED THE SAID GROUND. IF THE ASSESSEE HAD TAKEN A GROUND AS ADDIT IONAL GROUND, THE CIT(A) IS BOUND TO GIVE A FINDING WHETHER HE IS ADM ITTING THE GROUND OR NOT. IF THE GROUND IS ADMITTED HE IS BOUND TO DECIDE THE GROUND ON MERIT TREATING THIS GROUND TO BE PART OF THE MAIN GROUND. IN OUR VIEW THIS ADDITIONAL GROUND TAKEN BY THE ASSESSEE BEFORE THE CIT(A) WILL HAVE A BEARING ON THE OTHER GROUNDS TAKEN BY THE ASSESSEE BEFORE THE CIT(A) AND IT WILL AFFECT THE DECISION OF THE CIT(A). WE, THER EFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ADDITIONAL GROUND AS WELL OTHER GRO UNDS TO THE FILE OF THE CIT(A) WITH THE DIRECTION THAT THE CIT(A) SHOULD FI RST DECIDE THE ADDITIONAL GROUND ON MERITS IN CASE HE ADMITS THE ADDITIONAL G ROUND. ONCE THE ADDITIONAL GROUND IS DECIDED THE OTHER GROUND ARE A LSO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AS THIS ADDITIONAL GROUND, IN O UR OPINION, WILL HAVE A BEARING ON THE OTHER GROUNDS TAKEN BY THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2017. SD/ - SD/ - (PAWAN SINGH) (P.K. BANSAL) JUDICIAL MEMBER VICE PRESIDENT MUMBAI, DATED: 31 ST OCTOBER, 2017 ITA NO. 2937/MUM/2013 SHRI SUNILKUMAR O. KOCHHAR 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -30, MUMBAI 4. THE CIT - 19, MUMBAI 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.