VIJAYALAKSHMI VISHWANNATHAN IYER, MUMBAI V. ITO 25(1)(4), MUMBAI

ITA 3246/MUM/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8137 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 04-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Keywords: Opportunity of being heard; Period of limitation
• Section: 142(1); 147; 148; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN , ACCOUNTANT MEMBER ITA NO. 3246 / MUM/2017 ( ASSESSMENT YEAR : 20 06 07 ) SMT. VIJAYLAKSHMI VISHWANNATHAN IYER E 702, 7 TH FLOOR, MAYFAIR MERIDIAN BUILDING 0, CEASAR ROAD AMBOLI, ANDHERI (WEST) MUMBAI 400 058 PAN AAATA4224A . APPELLANT V/S INCOME TAX OFFICER WARD 25 ( 1 ) (4) , MUMBAI . RESPONDENT ASSESSEE BY : SHRI PRADIP KAPASI REVENUE BY : SHRI RAJEEV GUBGOTRA DATE OF HEARING 0 3 . 12 .2018 DATE OF ORDER 26.12.2018 O R D E R PER SAKTIJIT DEY, J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 21.12.2016 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 37, MUMBAI FOR THE ASSESSMENT YEAR 2006 - 07. 2 . THOUGH, THE ASSESSEE HAS RAISED MULTIPLE GROUNDS, HOWEVER, AT THE TIME HEARING LEARNED AUTHORISED REPRESENTATIVE CONTESTED THE ORDER OF LEARNED COMMISSIONER (APPEALS) PRIMARILY ON THE GROUND OF 2 SMT. VIJAYLAKSHMI VISHWANNATHAN IYER DISMISSAL OF APPEAL IN LIMINE FOR DE LAY. 3 . BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER DISPUTE ASSESSEE DID NOT FILED ANY RETURN OF INCOME UNDER SECTION 139 (1) OF THE INCOME TAX ACT, 1961 ( FOR SHORT THE ACT ). SUBSEQUENTLY, ON THE BASIS OF INFORMATIO N AVAILABLE ON RECORD INDICATING THAT THE ASSESSEE HAS SOLD IMMOVABLE PROPERTY DURING THE RELEVANT PREVIOUS YEAR AND RECEIVED SALE CONSIDERATION OF ` 51,50,000, WHEREAS, SHE HAS NOT OFFERED THE INCOME TO TAX, THE ASSESSING OFFICER RE - OPENED THE ASSESSMENT UNDER SECTION 147 OF THE A CT. AS OBSERVED BY THE ASSESSING OFFICER, THE ASSESSEE DID NOT COMPLY TO THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. FURTHER, THE NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT ALONG WITH THE QUESTIONNAIRE ALSO RETURNED BACK UN SERVED WITH THE POSTAL REMARK LEFT. ACCORDINGLY, THE ASSESSING OFFICER PROCEEDED TO COMPLETE THE ASSESSMENT UNDER SECTION 144 OF THE ACT TO THE BEST OF HIS JUDGEMENT. WHILE DOING SO, HE ADDED BACK THE AMOUNT OF ` 51,50,000 AS CAPITAL GAIN. BEING AGGRIEVE D OF THE ASSESSMENT ORDER SO PASSED ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED COMMISSIONER (APPEALS). HOWEVER, LEARNED COMMISSIONER (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE ON THE GROUND OF DELAY WITHOUT EXAMINING THE MERITS OF THE ADDIT ION MADE. 3 SMT. VIJAYLAKSHMI VISHWANNATHAN IYER 4 . WE HAVE HEARD THE PARTIES AND PERUSED MATERIALS ON RECORD. THE BASIC CONTENTION OF THE LEARNED AUTHORISED REPRESENTATIVE IS, THOUGH, THE ASSESSMENT ORDER WAS PASSED ON 25.02.2014, HOWEVER, A COPY OF THE ASSESSMENT ORDER ALONG WITH THE DEMAND NOT ICE WAS SERV ED ON THE ASSESSEE ON 02.11.2015 ONLY AFTER THE ASSESSEE FILED A LETTER BEFORE THE ASSESSING OFFICER REQUESTING HIM TO SERVE A COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE. HE SUBMITTED, SINCE THERE IS NO DELAY IN FILING THE APPEAL, LEARNED C OMMISSIONER (APPEALS) WAS TOTALLY UNJUSTIFIED IN DISMISSING ASSESSEE'S APPEAL ON THE GROUND OF DELAY. TO DEMONSTRATE THAT THE ASSESSMENT ORDER AND DEMAND NOTICE WAS ONLY SERVED ON THE ASSESSEE ON 02.11.2015 LEARNED AUTHORISED REPRESENTATIVE TOOK US THROUGH VARIOUS DOCUMENTARY EVIDENCES IS PLACED IN THE PAPER BOOK INCLUDING THE LETTER DATED 26 .07. 2017 OF THE ASSESSING OFFICER. HE SUBMITTED, THE ORDER OF THE LEARNED COMMISSIONER (APPEALS) SHOULD BE SET ASIDE AND ALL THE ISSUES MAY BE RESTORED BACK TO THE COMM ISSIONER (APPEALS) FOR DECIDING ON MERITS. THE LEARNED DEPARTMENTAL REPRESENTATIVE, THOUGH, JUSTIFIED THE ORDER PASSED BY THE LEARNED COMMISSIONER (APPEALS), HOWEVER, HE HAS NO OBJECTION IF THE ISSUES ARE RESTORED BACK TO THE FILE OF THE COMMISSIONER (APPE ALS) FOR DECIDING ON MERIT. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. AS COULD BE SEEN FROM RECORD, ASSESSMENT FOR THE IMPUGNED ASSESSMENT YEAR WAS COMPLETED UNDER 4 SMT. VIJAYLAKSHMI VISHWANNATHAN IYER SECTION 144 OF THE ACT SINCE THE STATUTORY NOTICES ISSUED BY THE ASSESSING OFFICER COULD NOT BE SERVED ON THE ASSESSEE. IT IS ALSO EVIDENT, LEARNED COMMISSIONER (APPEALS) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE IN LIMINE ON THE GROUND THAT THE APPEAL WAS FILED BEYOND THE PERIOD OF LIMITATION PRESCRIBED UNDER THE ACT. ON A PERUSAL OF THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) IT IS EVIDENT, THOUGH, IN PARAGRAPH 3 OF THE ORDER HE HAS REFERRED TO THE DATE OF ASSESSMENT ORDER AND DATE OF FILING OF APPEAL BEFORE HIM BY THE ASSESSEE, HOWEVER, HE HAS NOT SPECI FICALLY MENTIONED WHEN THE ASSESSMENT ORDER ALONG WITH THE DEMAND NOTICE WAS SERVED ON THE ASSESSEE. HE HAS ALSO NOT MENTIONED THE QUANTUM OF DELAY. IT APPEARS, LEARNED COMMISSIONER (APPEALS) HIMSELF WAS NOT SURE ABOUT THE ACTUAL DELAY, IF ANY, IN FILING T HE APPEAL. ONLY ON THE BASIS OF THE DATE OF ASSESSMENT ORDER LEARNED COMMISSIONER (APPEALS) HAS PRESUMED THAT THE APPEAL WAS FILED BELATEDLY. ON THE CONTRARY, LETTER DATED 26.07.2017 ISSUED BY THE ASSESSING OFFICER IN RESPONSE TO A LETTER DATED 2 0.0 4 . 2017 FILED BY THE ASSESSEE CLEARLY REVEALS THAT THE ASSESSMENT ORDER SENT BY REGISTERED POST RETURNED BACK UNSERVED. IT IS FURTHER EVIDENT, ON THE REQUEST OF THE ASSESSEE THE ASSESSING OFFICER ULTIMATELY SERVED A COPY OF THE ASSESSMENT ORDER AND DEMAND NOTICE O N 0 2 . 11 . 2015. IN VIEW OF THE AFORESAID FACTS IT CAN BE SEEN THAT ACTUALLY THERE IS NO DELAY IN FILING THE APPEAL BEFORE THE COMMISSIONER 5 SMT. VIJAYLAKSHMI VISHWANNATHAN IYER (APPEALS). THEREFORE, IN OUR CONSIDERED OPINION, LEARNED COMMISSIONER (APPEALS) HAS ERRONEOUSLY DISMISSED ASSESSEE'S AP PEAL IN LIMINE ON THE GROUND OF DELAY. IN VIEW OF THE AFORESAID, WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE ALL THE ISSUES ARISING IN THE PRESENT APPEAL TO LEARNED COMMISSIONER (APPEALS) FOR DE NOVO ADJUDI CATION ON MERITS. NEEDLESS TO MENTION, LEARNED COMMISSIONER (APPEALS) MUST AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE ISSUES. GROUNDS RAISED ARE ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT ASSESSEE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26.12.2018 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 26.12.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI