PUSHPABEN A PATEL LEGAL HEIR OF LATE ARVINDBHAI N PATEL, MUMBAI V. ADDL CIT SP RG 44, MUMBAI

ITA 3618/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71018 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 03-09-2013
• Assessment Year: 1998-1999
• Appeal Filed On: 21-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK KUMAR SINHA
• Assessee Lawyers: AJAY R SINGH
• Keywords: Opportunity of being heard; Cost of acquisition; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH , MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI R AJENDRA SINGH , A M T A NO. 3618 / MUM / 20 1 2 ( ASSESSMENT YEAR : 1998 - 99 ) SMT. PUSHPABEN A PATEL, LEGAL HEIR OF LATE ARVINDBHAI N PATEL, SHOP NO.5, GROUND FLOOR, PHIROZE SHAH MEHTA ROAD, SANTACRUZ (W), MUMBAI - 54 VS. ADDL. CIT, SP RG. 44, MUMBAI - 400 020 PAN/GIR NO. : A DGPA 2747 K ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI AJAY R. SINGH /REVENUE BY : SHRI DEEPAK KUMAR SINHA DATE OF HEARING : 3 RD S E PTEMBER , 201 3 DATE OF PRONOUNCEMENT : 6 TH SEPTEMBER , 2013 O R D E R P ER SHRI R.K.G UPTA, JM : THE ASSESSEE HAS PREFERRED THIS APPEAL AGAINST THE ORDER OF LEARNED CIT(A) , MUMBAI FOR ASSESSMENT YEAR 1998 - 99 . HEARD ON THE QUESTION OF CONDONATION OF DELAY. 2 . APPEAL OF THE ASSESSEE IS LATE BY 15 DAYS. CONDONATION APPLICATION IS PLACED ON RECORD. AFFIDAVIT OF THE ASSESSEE IS ALSO PLACED ON RECORD , WHEREIN THE DELAY IN FILING OF THE APPEAL HAS BEEN EXPLAINED . I TA NO. 3618 /1 2 2 2.1 AFTER HE ARING PARTIES AND CONSIDERING THE CONTENTS OF THE AFFIDAVIT, WE FIND THAT THERE IS A REASONABLE CAUSE IN FILING THE APPEAL LATE BY 15 DAYS . IT IS SEEN THAT WHEN THE APPEAL WAS DUE TO BE FILED BEFORE THE TRIBUNAL, THE ASSESSEE WAS TRAVELLING OUT OF INDIA I. E. BETWEEN 30 - 4 - 2012 TO 6 - 6 - 2012 . ACCORDINGLY, THE APPEAL COULD NOT BE SIGNED BY THE ASSESSEE AND, THEREFORE, THE APPEAL WAS FILED LATE BY 15 DAYS . SINCE THERE IS A REASONABLE CAUSE IN FILING THE APPEAL LATE, THEREFORE, WE CONDONE THE DELAY OF 15 DAYS IN F ILING THE APPEAL. THIS WAS ANNOUNCED IN THE OPEN COURT ITSELF. ALSO H EARD ON THE MERIT OF THE APPEAL . 3 . THE ASSESSEE HAS FILED A REVISED GROUND VIDE APPLICATION DATED 29 - 8 - 2003. IT WAS SUBMITTED BY THE LEARNED AR THAT THE ADDITION AL GROUND WAS RAISED BE FORE THE CIT(A) ON 29 - 1 - 2002, WHICH HAS NOT BEEN DECIDED BY THE LEARNED CIT(A) . IT WAS ALSO SUBMITTED THAT IN THE ADDITIONAL GROUND FILED BEFORE THE CIT(A) , IT WAS STATED THAT , IN FACT NO CAPITAL GAIN TAX LIABILITY AROSE AS THE COST OF ACQUISITION IS NOT ASCERTAINABLE AND CONSEQUENTLY THE ASSESSEE IS NOT LIABLE TO ANY CAPITAL GAIN TAX AT ALL. IT WAS SUBMITTED BY THE LEARNED COUNSEL OF THE ASSESSEE THAT THIS ADDITIONAL GROUND HAS NOT BEEN DISPOSED OF BY THE LEARNED CIT(A) . IT WAS FURTHER SUBMITTED THAT LEAR NED CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN A SUMMARY MANNER. THE ATTENTION OF THE BENCH WAS DRAWN ON PARA 7 AT P AGE 31 OF THE ORDER OF THE CIT(A ), WHERE HE HAS RECORDED HIS FINAL FINDING THAT THE AO HAS I TA NO. 3618 /1 2 3 RAISED PERTINENT ISSUES WHICH THE ASSESSE E HAS FAILED TO SATISFY SO FAR THE FACTS OF THE CASE BROUGHT IN BY THE AO , HAS NOT BEEN CONTROVERTED BY THE LD. AR IN THE SUBSEQUENT PROCEEDINGS STAGES. ACCORDINGLY, HE DISMISSED THE APPEAL OF THE ASSESSEE IN A SUMMARY MANNER. IT WAS SUBMITTED THAT THE DET AILED SUBMISSIONS WERE FILED BEFORE THE CIT(A) , WHICH HAS NOT BEEN CONSIDERED BY THE LEARNED CIT(A ) AT ALL. THEREFORE, THE ENTIRE MATTER SHOULD BE SENT BACK TO THE FILE OF THE CIT(A) TO DECIDE THE SAME AFRESH BY PASSING A SPEAKING ORDER IN VIEW OF THE ADDI TIONAL GROUND RAISED BEFORE HIM. 4 . LEARNED DR , ON THE OTHER HAND ALSO DID NOT OBJECT THE CONTENTION OF THE LEARNED AR OF THE ASSESSEE. 5 . IN VIEW OF THE ABOVE FACTS OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE LEARNED CIT(A) TO PASS A FRESH SPEAKING ORDER AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE CIT(A) IS ALSO DIRECTED TO DISPOSE OF THE LEGAL GROUND RAISED BEFORE HIM VIDE APPLICATION DATED 29 - 1 - 2002 . COPY OF THE LEGAL GRO UND RAISED BEFORE THE CIT(A) IS ALSO PLACED ON RECORD. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND REMAND THE MATTER BACK TO HIS FILE TO PASS A FRESH ORDER AS MENTIONED ABOVE. WE ORDER ACCORDINGLY. 8 . RESULTANTLY , APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. I TA NO. 3618 /1 2 4 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 6 TH DAY OF SEPT . 201 3 . SD/ - ( ) ( R AJENDRA SINGH ) SD/ - ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 06 / 09 / 2013 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE C I T(A) , MUMBAI . 4. / C I T 5. / DR, ITAT, MUMBAI . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( /ASSTT. REGISTRAR) / ITAT, MUMBAI