SHRI NISHANT M. BHABHERA, MUMBAI V. ITO 24 (2)(1), MUMBAI

ITA 3774/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55206 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-08-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 11-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MOURYA
• Assessee Lawyers: ASHOK J PATIL
• Keywords: Opportunity of being heard; Additional evidence; Surrender of tenancy right

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NO.3774/MUM/2010 : ASST.YEAR 2006-2007 SHRI NISHANT M.BHABHERA 1505/06 SAHYADRI TOWER UPPER GOVIND NAGAR NEXT TO UPVAN TOWER, MALAD (EAST) MUMBAI 400 097. PAN : AAIPB6970A. VS. THE INCOME TAX OFFICER WARD 24(2)(1) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHOK J.PATIL RESPONDENT BY : SHRI P.C.MOURYA DATE OF HEARING : 29.08.2011 DATE OF PRONOUNCEMENT :09.09.2011 O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 26.02.2010 IN RELATION TO THE ASSESSMENT YEAR 2006-2007. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE ASSESSMENT OF RS.7,00,000 RECEIVED BY THE ASSESSEE FOR SURRENDER OF TENANCY RIGHTS AS SHORT TERM CAPITAL GAIN INSTEAD OF LONG TERM CAPITAL GAIN CLAIMED BY THE AS SESSEE. 3. FILTERING OUT UNNECESSARY DETAILS IT IS NOTICED THAT THE ASSESSEE CLAIMED TO HAVE RECEIVED A SUM OF RS.7 LAKH FROM M/S. RAVI FOU NDATION ON ACCOUNT OF SURRENDER OF TENANCY RIGHTS WHICH WAS CLAIMED AS LO NG TERM CAPITAL GAIN AND EXEMPTION U/S.54F WAS CLAIMED. THE ASSESSING OFFICE R ASSESSED THIS AMOUNT AS SHORT TERM CAPITAL GAIN AND ALSO AS UNEXPLAINED CAS H CREDIT U/S.68 OF THE ACT. THE LEARNED CIT(A) DID NOT ACCEPT THE ALTERNATIVE VIEW POINT OF THE ASSESSING OFFICER BUT HELD THAT THE AMOUNT RECEIVED AS SHORT TERM CAP ITAL GAIN. ITA NO.3774/MUM/2010 SHRI NISHANT M.BHABHERA. 2 4. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FI LED APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE INCOME TAX RULES. HE SUBMITTED THAT WITH A LOT OF DIFFICULTY THE ASSESSEE COULD MANAGE TO GET ADDITIONAL EVIDENCE IN SUPPORT OF HIS CONTENTIONS WHICH HAVE DIRECT BEARIN G ON THE DECISION. NO SERIOUS OBJECTION WAS TAKEN BY THE LEARNED DEPARTMENTAL REP RESENTATIVE. WE, THEREFORE, ADMIT THE ADDITIONAL EVIDENCE AND RESTORE THE MATTE R TO THE FILE OF A.O. FOR DECIDING THIS ISSUE AFRESH AS PER LAW AFTER ALLOWING A REASO NABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE IMPUGNED ORDER TO THIS EXTENT IS THEREFORE SET ASIDE. IT IS MADE CLEAR THAT THE ASSESSEE SHALL BE AT LIBERTY TO LEAD ANY EVIDENCE IN SUPPORT OF HIS CASE DURING THE FRESH PROCEEDINGS. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 09 TH DAY OF SEPTEMBER, 2011. SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 09 TH SEPTEMBER, 2011. DEVDAS*` COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XX, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.