DR. MARIO D'SOUZA, MUMBAI V. ACIT 11(3), MUMBAI

ITA 3173/MUM/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0069 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-02-2017
• Assessment Year: misc
• Appeal Filed On: 25-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3); 142(1); 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 3173 / MUM/ 20 13 ( / ASSESSMENT YEAR: 2000 - 01 ) DR. MARIO D. SOUZA COURT VIEW 33 NESBIT RD, MAZGA ON MU MBAI PIN:400010 / VS. ACIT AAYAKAR BHAVAN MUMBAI PIN:400020 ./ ./ PAN/GIR NO. : AADPD 1837 H ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 15.06 .2017 / DATE OF PRONOUNCEMENT : 31. 08 . 2017 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS FILED THE PRESENT APPEA L AGAINST THE ORDER DATED 21 .0 3 .201 3 , PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO THE AY.2000 - 0 1. 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE ORDER PASSED BY THE LD. CIT (A) IS BAD IN LAW. 2. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.21.95,000/ - MADE BY THE AO U/S 69 - OF ACT BEING ALLEGED CAPITATION FEE SAID TO HAVE BEEN PAID BY APPELLANT TO MEDICAL COLLEGE FOR ADMISSION OF HIS SON. REVENUE BY: S HRI SUMAN KUMAR ( DR ) ASSESSEE BY : SHRI K.R. LAKSHMINARAYAN DR. MARIO D. SOUZA 2 3. THE LEARNED CIT (A) EN D IN HOLDING THAT THE APPEL LANT FAILED TO UTILIZE THE OPPOR TUNITY CROSS - EXAMINE THE ACCOUNTANT OF MEDICAL COLLEGE WITHOUT APPRECIATING THE FACT THAT ACCOUNTANT WAS CALLED BY AO. ON 20 - 02 - 2013 WHEN HIS STATEMENT WAS RECORDED APPELLANT WAS CALLED TO APPEAR ON 22 - 02 - 201 3 TO CROSS - EXAMINE WHICH IS HUMIDITY IMPOSSIBLE THUS GIVING SAID OPPORTUNITY TO APPELLANT BY AG. WAS AN EMPTY RITUAL. 4 WITHOUT PREJUDICE CIT(A) FAI1D TO NOTICE THAT IN TH E STATEMENT RECORDED BY THE AD. 20 - 02 - 2013 THE ACCOUNTANT HE HAD CLEARLY ST ATED THE HE MADE THE RELEVANT ENTRIES IN HIS REGISTERED AT THE INSTRUCTION OF HIS SENIORS AND THAT HE NEVER HANDLED FEE COLLECTED . WHICH PROVES THAT THERE IS NO EVIDENCE THAT APPELLANT PAID THE CAPITATION FEE. 5. LEARNED CIT(A) ERRED IN COMING TO CONCLUSIO N THAT THE M ARKS OBTAINED BY APPELLANT'S SON . ARE NOT SUFFICIENT TO GET ADMISSION TO MEDICAL COLLEGE WITHOUT THE BENEFIT OF CUT OFF MARKS. OR NOT RULING OUT THAT ADMISSION COULD BE OBTAINED BY APPELLANT DOCTOR' S FRIENDLY RELATIONS WITH FACULTY MEMBERS. 6. LEARNED CIT (A) FAILED TO TAKE NOTE OF THE DECISION OF JODHPUR ITAT IN THE CASE OF DC I T: V. SHY AM SUNDER SAJAL IN ITA NO.651/JOBS FOR AY. 2000 - 0 1 WHERE SIMILAR ADDITION ASS A/C OF CAPITATION FEE TO THE SAME MEDICAL COLLEGE WAS DELETED IN THE CASE OF ANOTHER STUDENT. 7. IT IS PRAYED THAT THE ADDITION OFRS21,95,000/ - MADE BY KU. U/S . 69 - C BE DELETED. A. THE APPELL ANT CRAVES LIBERTY TO ADD, AMEND , ALTER AND / OR WITHDRAW ANY OF THE ABOVE GROUNDS OF APPEAL. 3 . THE BRIEF FACTS OF THE CASE , ARE THAT THE ASSESSE E F ILED HIS RETURN OF INCOME ON 31 . 1 0.20 0 1 DECLARING TOTAL INCOME TO THE TUNE OF RS.20,53,780 - . THE RETURN OF INCOME WAS PROCESSED U/S143(1). A LETTER WAS RECEIVED FROM DDIT(INV.) UNIT - VIII(3)/INFORMATION/200607/3 DATED 05.03.2007. IT WAS CONVEYED THAT THE AS SESSEE PAID THE CAPITATION FEES DURING FI NANCIAL YEAR 1999 - 2000 RELEVANT TO A.Y. 2000 - 01 FOR THE ADMISSION FOR MR. ROMNESH MARIO DSOUZA FOR MEDICAL FACULTY IN D.Y. PATIL MEDICAL COLLEGE AND HOSPITAL, NERUL. PRIMA FACIE, T HE ASSESSING OFFICER WAS SATISFIED THAT THE INCOME FROM 2000 - 01 WAS ESCAPED ASSESSMENT. THEREFORE, NOTICE U/S 148 OF THE ACT WAS IS SUED ALONGWITH REASONS. THEREAFTER , ASSESSMENT U/S 143(3) R.W.S. 147 OF THE I.T. ACT, 1961 WAS COMPLETED ON 24.12.2007 ASSESSING THE TOTAL INCOME AT RS.42,48, 780/ - . FEELING AGGRIEVED, THE ASSESSEE FILED AN DR. MARIO D. SOUZA 3 APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPE AL OF THE ASSESSEE AND THEREAFTER , THE ASSESSEE FILED AN APPEAL BEFORE THE HONBLE ITAT AND HONBLE ITAT REMANDED THE CASE BEFORE THE AO AND DIRECTED TO PASS T HE ORDER AFRESH AFTER GIVING THE REASONABLE OPPORTUNITY TO THE ASSESSEE . THEREAFTER , THE NOTICES U/S 143(2) AND 142(1) WERE ISSUED AND SERVED UPON THE ASSESSEE. THEREAFTER, THE INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.42,48,780/ - . THE ASSESS EE FILED AN APPEAL BEFORE T HE CIT(A) WHO DISMISSED THE APPEAL . THEREFORE, TH E ASSESSEE FILED THE PRESENT APPEAL BEFORE US 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE LD. REPRESENTATIVE DI D NOT ARGUE THE CASE ON MERIT. THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE ACCOUNTANT OF THE MEDICAL COLLEGE WAS CALLED BY AO ON 20.02.2013. AND HIS STATEMENT WAS RECORDED BUT NO OPPORTUNITY WAS GIVEN TO CROSS - EXAMINE THE ACCOUNTANT , T HEREFO RE, IN THE SAID CIRCUMSTANCES THE ORDE R PASSED THE AO AND CONFIRMED BY THE CIT(A) IS NOT JUSTIFIABLE AND IS LIABLE TO BE SET ASIDE. IT IS ALSO ARGUED THAT THE ACCOUNTANT MADE THE ENTRIES IN THE RECORD ON THE BASI S OF THE STATEMENT OF HIS SENIOR, H OWEVER, THE ASSES SEE NEVER PAID ANY AMOUNT TO THEM THEREFORE, IN THE SAID CIRCUMSTANCES AN OPPORTUNITY TO BE CROSS - EXAMINE D IS NECESSARY FOR HIM TO ACHIEVE THE JUSTICE HENCE THE FINDING OF THE CIT(A) IS LIABLE TO BE SET ASIDE AN OPPORTUNITY TO CROSS - EXAMINE THE A CCOUNTANT IS LIABLE TO BE GIVEN IN ACCORDANCE WITH LAW. ON THE OTHER HAND , THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. DR. MARIO D. SOUZA 4 5. ON APPRAISAL OF THE ABOVE RECORD , WE NOTICED THAT THE HONBLE ITAT MUMBAI HAS ALREADY REMANDED THE CASE BEFORE THE AO VIDE ORDER DATED 11.10.2009 WITH THE DIRECTION TO PROVIDE THE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BUT PROPER OPPORTUNITY TO CROSS - EXAMINE THE ACCOUNTANT WAS NOT GIVEN . THE ASSESSING OFFICER CALLED THE ACCOUNTANT BEFORE HIM BY THE VIRTUE OF LETTER DATED 12.02.2013 FOR 20.02.2013. T HE NOTICE OF THE ASSESSING OFFICER CALLING THE CLERK OF MEDICAL COLLEGE ON 20.02.2013 IS ON RECORD WHICH LIES AT PAGE NO. 29 TO 31 OF THE PAPER BOOK. THE ASSESSEE WAS CALLED TO APPEAR BEFORE THE AO ON 22.02.2013 . IN THIS REGARD THE LETTER DATED 13.02.2013 IS ON THE FILE WHICH LIES AT PAGE NO. 37 OF THE PAPER BOOK. THE ASSESSEE WAS NOT AFFORDED AN OPPORTUNITY TO CROSS - EXAMINE THE WITNESS I.E . CLERK OF THE MEDICAL COLLEGE BEFORE THE ADDITION ON THE B ASIS OF THE STATEMENT OF THE CLERK OF THE MEDICAL COLLEGE. IT DOESNT SEEM JUSTIFIABLE . I N VIEW OF THE SAID CIRCUMSTANCES WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND RESTORED THE FILE BEFORE THE AO WITH THE DIRECTION TO PROVIDE AN OPPORTUNITY TO CROSS - EXAMINE THE WITNESS BY THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, THE FINDING OF THE CIT(A) IS HEREBY ORDER TO BE SET ASID E AND THE FILE IS HEREBY RESTORED BEFORE THE AO FOR FURTHER TAKING THE ACTION IN ACCORDANCE WITH LAW. 6 . IN THE RESUL T, THE APPEAL FILED BY THE ASSESSEE IS HERE BY ORDERED TO BE ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON 31.0 8 . 2017 . DR. MARIO D. SOUZA 5 SD/ - SD/ - ( B.R. BASKARAN ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 31 .08 .2017 V.P. SING H / 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// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI