ARUN KUMAR BHAIYA , Mumbai V. ITO 23(1)(2), Mumbai

ITA 3023/MUM/2022

AI Insights

The case involves an appeal by Arun Kumar Bhaiya against the order of the learned CIT(A), National Faceless Appeal Centre, Delhi, concerning the assessment year 2011-12. The primary grievances included the dismissal of the appeal without considering the assessee's request for adjournment to appoint an authorized representative, and the confirmation of the assessment made by the Assessing Officer without proper notice or satisfaction note. The Tribunal noted the procedural lapses and the remittance of the case back to the CIT(A) for a decision on the merits, acknowledging the assessee's compliance in remitting the disputed tax and the filing of a condonation of delay application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123914 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-01-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 28-11-2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Capital receipt; Condonation of delay
• Section: 56; 234B; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI ‘A’ BENCH, MUMBAI. Before Shri Kuldip Singh (JM) & Shri S. Rifaur Rahman (AM) I.T.A. No. 3023/Mum/2022 (A.Y. 2011-12) Arun Kumar Bhaiya D-66/639,MIG Colony Gandhi Nagar, Bandra East Mumbai-400 051. PAN : AINPB1866C Vs. ITO-23(1)(2) Matru Mandir Tardeo Road Mumbai-400 007. (Appellant) (Respondent) Assessee by Shri Ram Kumar Pugaliya Department by Shri Manoj Kumar Sinha Date of Hearing 11.01.2023 Date of Pronouncement 23.01.2023 O R D E R Per S. Rifaur Rahman (AM) :- The appeal filed by the assessee is directed against the order dated 1.8.2022 passed by the learned CIT(A), National Faceless Appeal Centre, Delhi and it relates to A.Y. 2011-12. 2. Aggrieved with the order of the learned CIT(A), the assessee is in appeal before us raising following grounds of appeal :- 1. That the Ld. Commissioner of Income-tax (Appeals) has erred in passing the order u/s 250 of the Income tax Act, 1961 without following the principles of natural justice. 2. That the Ld. Commissioner of Income-tax (Appeals) has erred in not considering genuine requests of the Assessee for adjournment for appointment of authorized representative for his case. 3. That the Ld. Commissioner of Income-tax (Appeals) has erred in summarily deciding grounds of the appeal without giving specific reasons for decision on every grounds of appeal separately. Arun Kumar Bhaiya 2 4. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the assessment made by Ld. Assessment Officer without duly and/or timely serving Notice u/s148 upon the Assessee. 5. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the assessment made by Ld. Assessment Officer without proper recording of satisfaction note of Ld. Concerned CIT/Pr.CIT or without furnishing same to the Assessee. 6. That the Ld. Commissioner of Income-tax (Appeals) has erred in making and confirming the addition of Rs. 6,20,500 and Ld. Assessing Officer which is received as corpus funds towards hardship caused to the Assessee on redevelopment. 7. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the addition u/s 56 of the Act, which is made by the ld. Assessing Officer by issuing a show cause notice based on incorrect and misconceived facts. 8. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the assessment made by Ld. Assessing Officer, reasons for reopening of which are based on incorrect premise of no return of income filed by the Assessee. 9. That the Ld. Commissioner of Income-tax (Appeals) has erred in not considering the fact that the physical possession of the flat was actually handed over in FY.15-16 wherein LTGC has been offered to tax. 10. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the Assessment made by Ld. Assessing Officer considering receipt of Rs. 6,20,500 to be revenue receipt and not capital receipt. 11. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the addition of Rs. 6,20,500/- which is not income u/s 2(24) of the Act. 12. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the Assessment made by Ld. Assessing Officer considering receipt of Rs. 6,20,500 to be profit in the hands of society and dividend in the hands of members of society (i.e. the Assessee). 13. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the assessment made by Ld. Assessing Officer disregarding the principles of mutually and/or commerciality. 14. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the assessment order which is based on and containing incorrect facts and figures as relied upon by the Ld. Assessing Officer. Arun Kumar Bhaiya 3 15. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the assessment made by Ld. Assessing Officer, basing the addition on ground of land being leasehold land and not a freehold land. 16. That the Ld. Commissioner of Income -tax (Appeals)have erred in confirming the assessment made by Ld. Assessing Officer by placing erroneous reliance on irrelevant judgements of Karnataka High Court and Supreme Court. 17. That the Ld. Commissioner of Income-tax (Appeals) has erred in confirming the addition of Rs. 6,20,500/- to the total income of the Assessee u/s 56 of the Act. 18. That the Ld. Commissioner of Income-tax (Appeals) and Ld. Assessing Officer have erred in not allowing any expenditure despite adding receipt to the income of the Assessee. 19. That the Ld. Commissioner of Income-tax (Appeals)erred in calculation of interest u/s 234A (Rs. 80,963), 234B (Rs. 33.480) and 234C (NIL) of the Act. 20. That the Ld. Commissioner of Income-tax (Appeals) erred in initiating penalty proceedings u/s 271(1) (c) of the Act.” 3. At the time of hearing learned AR submitted that the learned CIT(A) has dismissed the appeal of the assessee without considering the request of adjournment for appointment of learned AR and he accepted that there is delay of 50 days in filing the appeal before the first appellate authority. Further he submitted that the assessee has already remitted the disputed tax before filing the appeal. He submitted that the delay may be condoned and appeal may be restored to the file of the learned CIT(A) so that the issue may be decided on merit. 4. On the other hand, learned DR agreed with the facts submitted by learned AR and he submitted that the issues may be remitted back to the learned CIT(A). 5. Considering the rival submission and material placed on record, specially learned AR drawn our attention to page No. 42 of the paper book as per which the assessee has filed application for condonation of delay and also remitted disputed tax in this case. Since the learned CIT(A) has dismissed the Arun Kumar Bhaiya 4 appeal without considering the delay, for the sake of overall justice, we condoned the delay in filing the appeal before the first appellate authority and it is fact on record that the assessee has filed reasons for delay in application for condonation of delay. Accordingly, we remit this issue back to the file of the learned CIT(A) to decide the issues on merit. Accordingly this appeal is restored to the file of the learned CIT(A) and it is needless to say that the proper opportunity of being heard be given to the assessee. 6. In the result, appeal filed by the assessee stands allowed for statistical purposes. Pronounced in the open court on 23.1.2023. Sd/- Sd/- (KULDIP SINGH) (S. RIFAUR RAHMAN) Judicial Member Accountant Member Mumbai; Dated : 23/01/2023 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai