SHIBANI GAIND, MUMBAI V. ITO WD 3(3), THANE

ITA 3152/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7928 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-05-2016
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Assessee Lawyers: B N RAO; VYOMA RAO
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.3152/M/2016 (AY 2009 - 2010) MRS. SHIBANI GAIND, FLAT NO.2203, MERIDIAN, HIRANANDANI MEADOWS, POKHRAN ROAD NO.2, THANE (W). / VS. INCOME TAX OFFICER, WARD 3(3), MUMBAI. ./ PAN : AOMPG7613M ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI B.N. RAO AND MS . VYOMA RAO / RESPONDENT BY : MS. BEENA SANTOSH, DR / DATE OF HEARING : 20.03 .2017 / DATE OF PRONOUNCEMENT : 24.03 .2017 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 4.5.2016 IS AGAINST THE ORDER OF THE CIT (A) - 2, THANE DATED 26.2.2016 FOR THE ASSESSMENT YEAR 2009 - 2010. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUND WHICH READS AS UNDER: - THE LD CIT (A) ERRED IN UPHOLDING THE ORDER F THE AO BY DISALLOWING THE CLAIM OF LONG TERM CAPITAL GAINS UNDER SECTION 54 OF THE ACT. 2. DURING THE PROCEEDINGS BEFORE THE TRIBUNAL, ASSESSEE RAISED AN ADDITIONAL GROUND AND THE SAME READS AS UNDER: - THE LD CIT (A) ERRED IN NOT ADMITTING THE APPEAL ON ACCOUNT OF SHORT DELAY IN FILING OF APPEAL BY 16 DAYS. HE OUGHT TO HAVE BROUGHT TO THE NOTICE OF THE APPELLANT DURING THE COURSE OF HEARING WHICH COULD HAVE BEEN RECTIFIED IMMEDIATELY. 3. IN CONNECTION WITH THE ABOVE EXTRACTED ADDITIONAL GROUND, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE FACTS REGARDING THE DELAY WAS NOT BROUGHT TO THE NOTICE OF THE ASSESSEE B Y THE CIT (A) BEFORE DENYING THE ADMITTING OF THE APPEAL. THE DETAILS FOR THE DELAY AND THE REQUEST FOR CONDONING IS FURNISHED BEFORE US VIDE LETTER DATED 20.3.2017. FURTHER, LD AR SUBMITTED THAT THE ADDITIONAL GROUND MAY BE ADMITTED AND THE ISSUE MAY BE REMANDED TO THE FILE OF THE CIT (A). FURTHER ALSO, LD 2 AR SUBMITTED THAT THE ISSUE RAISED I N THE APPEAL GETS COVERED IN FAVOUR OF THE ASSESSEE BY VIRTUE OF THE TRIBUNALS ORDER IN THE CASE OF GENERAL GLASS CO. P. LTD VS. DC IT (2007) 108 TTJ 0854. THE SAID TRIBUNALS ORDER REFERS TO THE SITUATION WHERE THE C LAUSES OF AGREEMENT PROVIDES FOR A CON DITION UPON WHICH, ON FULFILMENT OF THE SAME ONLY, ASSESSEE GETS RIGHTS ON THE PROPERTY. SUCH LEGAL PROPOSITION GOES IN FAVOUR OF THE ASSESSEE SO FAR AS THE CLAIM U/S 54 OF THE ACT IS CONCERNED. CIT (A) WHILE NOT ADMITTING THE APPEAL, ADJUDICATED THE ISS UE ON MERITS AGAINST THE ASSESSEE BY NOT ATTENDING TO THE ABOVE SAID ARGUMENT OF THE ASSESSEE AND THE CITATIONS MENTIONED ABOVE. 4. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISIONS OF THE TRIBUNAL (SUPRA), I AM OF THE VIEW, THE CIT (A) DID NOT ATTEND TO T H E C R U C I A L ARGUMENT OF THE ASSESSEE AND MERELY IGNORED THE SAID DECISION OF THE TRIBUNAL (SUPRA) BY MENTIONING THE CASES RELIED UPON BY THE ASSESSEE ARE DISTINGUISHABLE ON FACTS. CIT (A) HAS NOT GIVEN THE REASONS AS TO WHICH OF THE FACTS ARE DISTINGUISHABLE AND HOW THE RATIO LAID DOWN BY THE SAID DECISIONS ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. CONSIDERING THE SAME, I AM OF THE OPINION, THE CIT (A) SHOULD BE DIRECTED TO ADMI T THE APPEAL AND ADJUDICATE THE ISSUE AFRESH AFTER APPLYING THE SAID CITATIONS ON THE SUBJECT, IF ANY, AND AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, REGULAR GROUND AND THE ADDITIONAL GROUND RAISED BY THE ASSESSEE ARE ALLOWED STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUN CED IN THE OPEN COURT ON 2 4 T H MARCH, 2017. S D / - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 24.03.2017 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 3 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI