Mirza A. Baig, V. ITO,

ITA 352/PUN/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3379 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 23-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice; Additional evidence; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 352/PN/2009 (ASSTT. YEAR : 2005-06) MIRZA ATIKHULLAH BAIG, HOUSE NO.1-18-20, NEAR TOTI KI MASJID, CHELIPURA, AURANGABAD PAN: AOHPM5688P . APPELLANT V. INCOME TAX OFFICER, (CIB) NASHIK, [NOW ITO WARD 2(3)], AURANGABAD JEEWAN SUMAN, LIC- BUILDING, 2 ND FLOOR, CANNOUGHT PLACE, N-C-5, CIDCO, AURANGABAD-431003 . RESPONDENT APPELLANT BY : SHRI M.K. KULKARNI RESPONDENT BY : SHRI. ABHAY DAMLE ORDER PER D. KARUNAKARA RAO, AM THIS APPEAL BY THE ASSESSEE IS FILED AGAINST THE ORD ER OF THE CIT(A)- AURANGABAD DATED 04.11.2008 FOR THE A.Y. 2005-06. 2. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESS EE BROUGHT TO OUR NOTICE AN APPLICATION FOR CONDONATION OF DELAY OF 17 DAYS ON THE BASIS OF ILLNESS OF CONCERNED PERSONS. IT WAS DULY CERTIFIED BY THE MEDICAL PROFESSI ONAL. CONSIDERING THE NATURE AND REASONS GIVEN IN THE SAID APPLICATION REQUESTING FOR CONDONATION OF DELAY, WE ARE OF THE OPINION THAT THE APPEAL MUST BE ADMITTED AFTER CONDONING THE DELAY. ACCORDINGLY, THE REQUEST FOR CONDONATION IS ALLOWED . 3. FURTHER, THE LD COUNSEL MENTIONED THAT THE ISSUE RA ISED IN THE GROUNDS OF THE APPEAL HAVE TO BE ADJUDICATED IN TUNE WITH THE GROUN DS RAISED IN APPEAL FILED BY MR. NASEEBKHAN RAJEKHAN PATHAN (VIDE ITA NO. 167/PN/200 9, A.Y. 2005-06) AND MR. MOHMEDKHAN RAJEHKHAN PATHAN (ITA NO. 169/PN/2009, A .Y. 2005-06). REFERRING TO ITA NO 352/N/2009 MIRZA ATIKHULLAH BAIG A.Y.2005-06 OF 3 2 THE ORDER PASSED BY THE TRIBUNAL IN THESE TWO CASES VI DE CONSOLIDATED ORDER DT. 17 TH MAY 2010, LD COUNSEL DEMONSTRATED THAT THE PRESENT AS SESSEE IS ALSO HAVING INTEREST IN THE IMPUGNED CAPITAL ASSET, WHICH IS SUB JECT MATTER OF THE COMPROMISE SUIT FINALIZED BY THE HONBLE CIVIL COURT VIDE ORDER DT. 5.8.2009 AND THE SAID ORDER WAS NOT AVAILABLE TO THE REVENUE AUTHORITIES AT THE TIME OF MAKING OF IMPUGNED ORDER OF THE CIT(A) DT. 4.11.2008. SO, CONSIDERING TH E NECESSITY OF ALL THESE APPEALS TO BE DISPOSED OF IN ONE GO, LD COUNSEL PRAYED FOR SE TTING ASIDE THESE PRESENT APPEALS TO THE FILES OF THE A.O IN TUNE WITH THAT O F THE TRIBUNALS ORDER DT. 17.5.2010. 4. WE HAVE PERUSED THE SAID ORDER DT. 17.5.2010 AND FO UND THAT PARA 4 IS RELEVANT TO DEMONSTRATE THE WAY THE SAID TWO APPEALS WERE SET ASIDE TO THE FILES OF THE A.O. FOR THE SAKE OF COMPLETENESS, THE PARAGRAPHS 3 & 4 ARE REPRODUCED AS UNDER : 3. TO SUPPORT THE ABOVE, THE COUNSEL TOOK US THRO UGH THE COPY OF THE ORDER OF THE CIVIL COURT RECEIVED ON 5/8/2009 AND M ENTIONED THAT THIS ORDER CONSTITUTES A DEVELOPMENT SUBSEQUENT AND THE ASSESS EE COULD NOT HAVE FILED THE SAME BEFORE THE CIT(A) AS THE SAME BELONGS TO L ATER IN TIME. THE D.R. FOR THE REVENUE RELIED ON THE ORDERS OF THE REVENUE . 4. WE HAVE HEARD BOTH THE PARTIES AND TO START WIT H, WE EXAMINED THE ADMISSIBILITY OF THE ADDITIONAL EVIDENCE AND FOUND THAT IN VIEW OF THE SUBSEQUENT DEVELOPMENTS IN THE MATTER, ASSESSEES P RAYER FOR ADMITTANCE OF THE ADDITIONAL EVIDENCE SHOULD BE ACCEDED TO. FURT HER, IT IS NOTICED THAT THE SAID ADDITIONAL EVIDENCE GOES TO THE ROOT OF THE MATTER AND THE REVENUE HAS NO OCCASION TO TOOK IN TO THE CIVIL COURTS ORD ER. IN OUR OPINION, CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE, THE SAID ADDITIONAL EVIDENCE HAS TO BE REMANDED TO THE FILES OF AO. ISSUES AD THE FA CTS ARE COMMON IN BOTH THE APPEALS AND INFACT THE PROPERTY IN QUESTION IS SHARED BY BOTH THE ASSESSEES UNDER CONSIDERATION. BOTH THE PARTIES HA VE AGREED TO THE PROPOSAL. THEREFORE, WE HAVE NO PROBLEM IN SETTING ASIDE ALL THE GROUNDS OF THE APPEALS IN BOTH THE APPEALS TO THE FILES OF THE AO. AO SHAL L ADMIT THE SAID ADDITIONAL EVIDENCE AND ANY OTHER EVIDENCE THAT MAY BE PRODUCE D BY THE ASSESSEEE, WHICH MAY GO IN TO THE ROOT OF THE MATTER, AND AD JUDICATE THE ISSUES AFRESH AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE AS PER THE PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, THE GROUNDS IN BOT H THE APPEALS ARE SET ASIDE. 5. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES, WE FIND NO REASON NOT TO SET ASIDE GROUNDS OF THE PRESENT APPEAL TO THE FILE OF TH E A.O. THE A.O SHALL ADMIT ADDITIONAL EVIDENCE SUCH AS ORDER OF CIVIL COURT AND OTHER RELATED DOCUMENTS, IF ANY, AND PASS REQUISITE ORDER DE NOVO AFTER HEARING THE ASSESSEE AS PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, THE GROUNDS RAISED ARE SET ASIDE . ITA NO 352/N/2009 MIRZA ATIKHULLAH BAIG A.Y.2005-06 OF 3 3 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTI CAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20TH DAY OF AUG UST 2010. SD/- SD/- (I.C. SUDHIR) JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE, DATED THE 20TH AUGUST, 2010 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT, AURANGABAD 4. THE CIT(A), AURANGABAD 4. THE D.R. A BENCH, PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE