BIRENDRA M SHUKLA, MUMBAI V. ACIT CIR 21, MUMBAI

ITA 3899/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9111 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 1989-1990
• Appeal Filed On: 23-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUJIT BANGER
• Section: 143(3); 132

Judgement Text

INCOME-TAX APPELLATE TRIBUNAL -KBENCH MUMBAI , ,, , , , , , , ,, , BEFORE S/SHRI RAJENDRA,ACCOUNTANT MEMBER AND SAKTIJIT DEY,JUDICIAL MEMBER / ITA /NO.3899/MUM/2015 : /ASSESSMENT YEAR-1989-90 BIRENDRA M. SHUKLA 5, SARVODAYA NAGAR,DATTA MANDIR ROAD, MALAD (E),MUMBAI-400 097. PAN:BLFPS 5959 F VS. ACIT-CENTRAL CIRCLE-21 AAYAKAR BHAVAN, MARINE LINES MUMBAI-400 020. ( /APPELLANT ) ( / RESPONDENT) REV ENUE BY: SHRI SUJIT BANGER ASS ESSEE BY: SHRI RAJESH S. SHAH / DATE OF HEARING: 20.10.2016 / DATE OF PRONOUNCEMENT: 06/01/2017 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) , / PER RAJENDRA A.M. - CHALLENGING THE ORDER DATED 23.03.2015 OF THE CIT(A )-51, MUMBAI THE ASSESSEE HAS FILED THE PRESENT APPEAL. ASSESSEE, AN INDIVIDUAL FILED HIS R ETURN OF INCOME ON 29.01.1997 DECLARING INCOME OF RS.93,950/- IN RESPONSE TO THE NOTICE ISS UED U/S.148 OF THE ACT.THE ASSESSING OFFICER(AO)COMPLETED THE ASSESSMENT U/S. 143(3) R.W .S. 147 ON 27.2.2009, DETERMINING THE INCOME OF THE ASSESSEE AT RS.15.98 LAKHS. BRIEF FACTS: 2. AN ACTION U/S. 132 OF THE ACT WAS CARRIED OUT ON 10 . 12.1994 IN THE CASE OF THE ASSESSEE AND THE ASSESSMENT PROCEEDINGS WERE INITIATED FOR THE Y EAR 1986 TO 1995-96.AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL B EFORE THE FIRST APPELLATE AUTHORITY (FAA). BEFORE HER, THE ASSESSEE RAISED AN ISSUE OF VALIDIT Y OF REOPENING.HOWEVER, WITHOUT ADJUDICATING THE ISSUE, THE FAA DECIDED THE APPEAL IN FAVOUR OF THE ASSESSEE, IN PART. 3. DURING THE COURSE OF HEARING BEFORE US THE AUTHORIS ED REPRESENTATIVE (AR) STATED THAT THE TRIBUNAL HAD WHILE DECIDING THE APPEALS FOR THE AS SESSMENT YEARS 1987-88 1988-89 AND 1990-91(ITAS NO./3897/MUM/2015, 3898 AND 3900/MUM/2 015 DT.18.8.2015) HAD SENT BACK THE MATTER TO THE FILE OF THE FAA, AS THE FACTS OF THE EARLIER AND SUBSEQUENT YEARS WERE IDENTICAL TO THE FACTS FOR THE YEAR UNDER CONSIDERA TION. THE DEPARTMENTAL REPRESENTATIVE (DR), LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT WHILE 3899/M/15-BIRENDRA M.SHUKLA 2 DECIDING THE APPEALS FOR THE EARLIER YEARS THE TRIB UNAL HAD DELIBERATED AND DECIDED THE ISSUE AS UNDER : 2. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUB MITTED THAT THE ASSESSMENT OF ALL THE ASSESSMENT YEARS UNDER CONSIDERATION WERE COMPLETED UNDER SECTION 143(3) R.W.S 147 OF THE ACT. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASS ESSEE HAD FILED AN ADDITIONAL GROUND BEFORE THE LD. CIT(A) QUESTIONING THE VALIDITY OF THE RE-O PENING OF THE ASSESSMENT OF ALL THE THREE YEARS. HE SUBMITTED THAT THE LD. CIT (A), HOWEVER, DID NOT ADJUDICATE THE SAID LEGAL GROUND. HE FURTHER SUBMITTED THAT THE APPEALS RELATING TO THE ASSESSME NT YEARS 1991-92 TO 1994-95 ARE PENDING BEFORE THE LD. CIT (A) AND IN THOSE YEARS ALSO, THE ASSESSEE HAD QUESTIONED THE VALIDITY OF THE REOPENING OF THE ASSESSMENTS. HE FURTHER SUBMITTED THAT THE ASSESSMENTS FOR ALL THESE SIX YEARS HAVE BEEN RE-OPENED ON COMMON SET OF FACTS. HE SUBM ITTED THAT THE ISSUE OF VALIDITY OF RE- OPENING OF ASSESSMENT GOES TO THE ROOT OF THE MATTE R AND ACCORDINGLY PRAYED THAT THE SAME MAY BE RESTORED TO THE FILE OF THE LD.CIT(A) FOR ITS AD JUDICATION. 3. THE LD. DR ALSO AGREED TO THE REQUEST MADE BY TH E LD. AR. 4. HAVING REGARD TO THE SUBMISSIONS MADE BY THE LD. AR, WE ARE OF THE VIEW THAT THE LEGAL ISSUE RELATING TO THE VALIDITY OF REOPENING OF THE ASSESS MENT SHOULD BE RESTORED TO THE FILE OF THE LD. CIT(A), SINCE IT GOES TO THE ROOT OF THE MATTER AND ALSO FOR THE REASON THAT AN IDENTICAL ISSUE IS PENDING BEFORE THE LD. CIT(A) IN OTHER THREE YEARS REFERRED ABOVE, WHICH ARISE OUT OF COMMON SET OF FACTS. IN VIEW OF THE ABOVE, WE PREFER TO SE T ASIDE THE ISSUES URGED ON MERITS ALSO TO THE FILE OF LD. CIT (A) FOR FRESH CONSIDERATION. ACCORD INGLY, WE SET ASIDE THE ORDERS PASSED BY LD. CIT (A) FOR ALL THE THREE YEARS UNDER CONSIDERATION AND RESTORE ALL THE MATTERS TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE LEGAL ISSUE AND ALSO OT HER ISSUES URGED ON MERITS, AFRESH BY AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARING TO THE ASSESSEE. RESPECTFULLY FOLLOWING THE ABOVE,WE DECIDE EFFECTIV E GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE,IN PART.MATTER IS RESTORED BACK TO FAA FOR FRESH ADJUDICATION AS WE ARE SENDING BACK THE MATTER TO FAA,SO WE ARE NOT DECIDING THE OTHER ISSUES.FAA IS DIRECTED TO AFFORD A REASONABLE OPPORTUNITY TO THE ASSESSEE. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS PAR TLY ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH JANUARY, 2017. , 2017 SD/- SD/- ( / SAKTIJIT DEY ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 06.01.2017 JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR K BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.