ASHOK VATIKA P. LTD, MUMBAI V. ITO 10(3)(4), MUMBAI

ITA 2975/MUM/2011

• Counselvise Citation: 297519914 RSA 2011
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 14-05-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 15-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Reassessment proceedings
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI N.V.VASUDEVAN(J.M) AND SHRI RAJENDR A SINGH (A.M) ITA NO. 2972/MUM/11 TO 2978/MUM/11 (ASSESSMENT YEAR 1997-98 TO 2003-04) M/S. ASHOK VATIKA PVT. LTD. C-1, ALPA APARTMENTS, SIR POCHKANWALA ROAD, WORLI, MUMBAI - 400 030. PAN: AABCA 8431F (APPELLANT) VS. THE ITO 10(3)(4), AAYKAR BHAVAN, MK ROAD, MUMBAI. (RESPONDENT) APPELLANT BY : SHRI M.SU BRAMANIAN RESPONDENT BY : SHRI P.K.B.MENON DATE OF HEARING : 17/05/2012 DATE OF PRONOUNCEMENT : 17/05/2012 ORDER PER BENCH, THESE ARE APPEALS BY THE ASSESSEE AGAINST ORDERS D ATED 14/1/2011 OF CIT(A)-22, MUMBAI RELATING TO ASSESSMENT YEARS 1997 -98 TO 2003-04. 2. THE ASSESSMENT FOR ALL THE AFORESAID ASSESSMENT YEARS WAS REOPENED BY ISSUING OF NOTICE UNDER SECTION 148 OF THE INCO ME TAX ACT, 1961 (THE ACT) DATED 26/4/2004. THE REASON FOR ISSUE OF SUCH NOTI CE WAS THAT THE ASSESSEE HAD DECLARED INCOME FROM IMMOVABLE PROPERT Y UNDER THE HEAD INCOME FROM BUSINESS. ACCORDING TO THE REVENUE THE SAID INCOME WAS LIABLE TO BE TAXED UNDER THE HEAD INCOME FROM HOUS E PROPERTY. CONSEQUENTLY EXPENSES WHICH WERE CLAIMED AS DEDUCTI ON UNDER THE HEAD INCOME FROM BUSINESS WERE DISALLOWED AND ONLY DED UCTIONS PERMISSIBLE UNDER SECTION 24 OF THE ACT UNDER THE HEAD INCOME FROM HOUSE PROPERTY WAS ALLOWED. THE AO PASSED THE ORDER UNDER SECTION 143(3) R.W.S. 148 OF THE ITA NO. 2972/MUM/11 TO 2978/MUM/11 2 ACT ON 30/11/2004. THE CIT(A) CONFIRMED THE ORDER OF THE AO. THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL AGAI NST THE ORDERS OF THE CIT(A). ONE OF THE CONTENTION OF THE ASSESSEE BEFO RE THE TRIBUNAL WAS THAT THE INITIATION OF REASSESSMENT PROCEEDINGS WERE BAD IN LAW AND FURTHER THE REASONS RECORDED FOR INITIATING REASSESSMENT PROCEE DINGS WERE NOT FURNISHED TO THE ASSESSEE. THE TRIBUNAL IN ITA NO.4052/MUM/0 6 BY ORDER DATED 17/6/2009 DIRECTED THE AO TO FURNISH THE REASONS RE CORDED FOR REOPENING THE ASSESSMENT AND DECIDE THE ISSUE WITH REGARD TO VALIDITY OF INITIATION OF REASSESSMENT PROCEEDINGS AFRESH. THEREAFTER THE AO WAS ALSO DIRECTED TO DECIDE THE ISSUE ON MERITS. PURSUANT TO THE ORDER OF THE TRIBUNAL THE AO PASSED AN ORDER DATED 30/9/2010 UPHOLDING THE VALID ITY OF INITIATION OF REASSESSMENT PROCEEDINGS AND ALSO ASSESSING THE INC OME IN QUESTION UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 3. AGAINST THE ORDERS OF THE AO THE ASSESSEE FILED APPEALS BEFORE THE CIT(A). THE CIT(A) FIXED THE APPEALS FOR HEARING O N 20/12/2010 AND AGAIN THE APPEALS WERE FIXED FOR HEARING ON 29/12/2010. THEREAFTER, AT THE REQUEST OF THE ASSESSEE THE CASE WAS ADJOURNED TO 1 4/1/2011. THE ASSESSEE FILED AN APPLICATION FOR ADJOURNMENT OF THE HEARING ON 14/1/2011 GIVING THE FOLLOWING REASONS: RESPECTED SIR, SUB: REQUEST FOR ADJOURNMENT FOR APPEALS FIXED FOR A.Y 9 7-98 TO 2004-05. KINDLY REFER TO YOUR NOTICE DATED 03/1/2011 FOR THE ABOVE MENTIONED A.Y 97-98 TO 2004-05. I MAUSHIK PATEL, DIRECTOR OF M/S. ASHOK VATIKA PVT. LTD. AGAINST REQUEST YOU THAT THE APPEALS FIXED FOR HEARING ON 1 4/1/2011 FOR AY 1997-1998 TO 2004-05 MAY BE ADJOURNED TILL THE LAST WEEK OF JAN.2011. AS INFORMED TO YOU EARLIER ALSO THAT MY TAX CONSULTANT WHO HAS GONE TO NATIVE PLACE HAS BECOME SICK AND IS EXP ECTED IN THE MIDDLE OF JAN.11. I, THEREFORE, ONCE AGAINST REQUEST YOU THAT APPEALS FIXED FOR ITA NO. 2972/MUM/11 TO 2978/MUM/11 3 HEARING ON 14 TH JANUARY 2011 MAY BE ADJOURNED TO LAST WEEK OF JAN.2011 SO THAT MY CONSULTANT WILL BE ABLE TO SUBM IT THE REQUIRED DOCUMENTS BEFORE YOUR HONOUR. I HAD IN MY EARLIER REPLIES TO YOUR HEARING HAD AG AIN AND AGAIN REQUESTED YOUR GOODSELF TO KEEP THE HEARING IN THE LAST WEEK OF JANUARY 2011 BUT YOU HAVE NOT CONSIDERED MY REQUEST FOR THE SAME. I ONCE AGAIN PLEAD TO YOU TO GRANT ME THE DATE IN T HE LAST WEEK OF JANUARY 2011. 4. THE CIT(A) WAS OF THE VIEW THAT THE ASSESSEE WA S NOT INTEREST IN PROSECUTING THE APPEALS, HE THEREFORE, DISMISSED THE APPEALS OF THE ASSESSEE. 5. AGGRIEVED BY THE AFORESAID ORDERS OF THE CIT(A) THE ASSESSEE HAS FILED THE PRESENT APPEALS BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS. IN OUR VIE W THERE WAS LACK OF OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS SUBMISSI ONS BOTH ON MERITS AS WELL THE VALIDITY OF INITIATION OF ASSESSMENT PROCEEDING S. IT IS ALSO SIGNIFICANT TO NOTICE THAT THE CIT(A) HAS PASSED THE ORDERS ON THE VERY SAME DATE ON WHICH THE CASE WAS FIXED FOR HEARING. WE ALSO FIND THAT THE REQUEST OF THE ASSESSEE WAS ONLY FOR TWO WEEKS WHICH OUGHT TO HAVE BEEN GRA NTED CONSIDERING THE REASONS FOR SEEKING ADJOURNMENT VIZ., SICKNESS OF T HE COUNSEL FOR THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF TH E CIT(A) AND RESTORE ALL THE ISSUES RAISED BY THE ASSESSEE BEFORE THE CIT(A) FOR FRESH CONSIDERATION BY THE CIT(A). FOR STATISTICAL PURPOSES THESE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED. ITA NO. 2972/MUM/11 TO 2978/MUM/11 4 7. IN THE RESULT, ALL THESE APPEALS BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 17 TH DAY OF MAY 2012 SD/- SD/- (RAJENDRA SINGH ) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 17 TH MAY 2012 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RA BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM.