SATISH CHANDRA SRIVASTAV, MUMBAI V. ACIT RG 11(3), MUMBAI

ITA 4001/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8450 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 04-03-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 20-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BISTDR
• Assessee Lawyers: KEYURI DESAI
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 69; 6

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.4001/MUM/2013 ASSESSMENT YEAR: 2006-07 SATISH CHANDRA SRIVASTAV, 201, YESHWANT CHAMBERS, 18, BURJORJI MARG, FORT, MUMBAI-400023 / VS. ACIT, RANGE-11(3), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( '# /ASSESSEE) ( % / REVENUE) P.A. NO. AAHPS9995B '# / ASSESSEE BY MS. KEYURI DESAI % / REVENUE BY SHRI B.S. BIST-DR & % ' ( / DATE OF HEARING : 20/02/2017 ' ( / DATE OF ORDER: 20/02/2017 SATISH CHANDRA SRIVASTAV ITA NO.4001/MUM/2013 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 25/02/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE FIRST GROUND I.E. 1(A) AND (B) RELATES TO SECTION 6 9 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). THE CRUX OF AR GUMENT ON BEHALF OF THE ASSESSEE BY MS. KEYURI DESAI, IS THAT THE ADDITION WAS MADE HASTILY AS ONLY TWO DAYS TIME WAS PROVIDED TO THE ASSESSEE, THEREFORE, REASONABLE OPPORTUNITY OF BEIN G HEARD WAS NOT PROVIDED. IT WAS ALSO EXPLAINED THAT EVEN THE I MPUGNED ORDER IS ALSO AN EX-PARTE ORDER. ON THE OTHER HAND , THE LD. DR, MR. B.S. BIST, STRONGLY DEFENDED THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. COMMISSI ONER OF INCOME TAX (APPEAL) BY CONTENDING THAT THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A) IN SPITE OF OPPORTUNITIES PROVIDED TO THE ASSESSEE. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S, IN BRIEF, ARE THAT THE ASSESSEE IS A PRACTICING ADVOCATE, DER IVES INCOME FROM PROFESSION AND ALSO FROM OTHER SOURCES. THE AS SESSEE DECLARED TOTAL INCOME OF RS.14,14,333/- FOR THE IMP UGNED ASSESSMENT YEAR, VOLUNTARILY, ON 31/10/2006. THE RE TURN WAS PROCESSED U/S 143(1) OF THE ACT. THE CASE OF THE AS SESSEE WAS SELECTED FOR SCRUTINY AND FINALLY THE ASSESSMENT WA S FRAMED U/S 143(3) OF THE ACT. WITHOUT GOING INTO MUCH DELI BERATION, SINCE, A LITTLE TIME WAS PROVIDED BY THE ASSESSING OFFICER TO SATISH CHANDRA SRIVASTAV ITA NO.4001/MUM/2013 3 SUBSTANTIATE THE CLAIM AND EVEN AN EX-PARTE ORDER W AS PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL), WE ARE OF THE VIEW THAT NO PERSON SHOULD BE CONDEMNED UNHEARD. EV EN OTHERWISE, THE MANDATE OF THE CONSTITUTION OF INDIA IS TO LEVY AND COLLECT DUE TAXES ONLY, THEREFORE, KEEPING IN T HE VIEW THE PRINCIPLE OF NATURAL JUSTICE, WE SET-ASIDE THE EX-P ARTE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AND SEN T THE GROUND TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO PROVIDE DUE OPPORTUNITY OF BEING HEARD TO THE ASSES SEE TO SUBSTANTIATE HIS CLAIM, THUS, THIS GROUND IS ALLOWE D FOR STATISTICAL PURPOSES. 3. SO FAR AS, THE ADDITION OF RS.3,53,779/- MADE U /S 68 OF THE ACT IS CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE TOOK IDENTICAL PLEA AS HAS BEEN RAISED IN THE GROUN D TO THE EFFECT THAT THE IMPUGNED AMOUNT MERELY REPRESENTS P ROFIT ON SALE OF UNITS OF MUTUAL FUNDS PURCHASE IN THE PAST, BEING LONG TERM CAPITAL GAINS/SHORT TERM CAPITAL GAINS. ON TH E OTHER HAND, THE LD. DR DEFENDED THE ADDITIONS. THE CRUX O F THE ARGUMENT ON BEHALF OF THE ASSESSEE IS ALSO THAT PRO PER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE. CONSI DERING THE TOTALITY OF FACTS AND THE ARGUMENT FROM RIVAL SIDE, WE SET ASIDE THIS GROUND ALSO TO THE FILE OF THE LD. ASSESSING O FFICER TO EXAMINE THE FACTUAL MATRIX AND FURTHER PROVIDE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO SUBST ANTIATE HIS CLAIM. THE LD. ASSESSING OFFICER IS DIRECTED TO DE CIDE THE ISSUE IN ACCORDANCE WITH LAW, THUS, THIS GROUND IS ALSO A LLOWED FOR STATISTICAL PURPOSES. SATISH CHANDRA SRIVASTAV ITA NO.4001/MUM/2013 4 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 20/02/2017. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & MUMBAI; * DATED : 20/02/2017 F{X~{T? P.S / +% %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 0./ / THE RESPONDENT. 3. 1 1 & 2 ( ,- ) / THE CIT, MUMBAI. 4. 1 1 & 2 / CIT(A)- , MUMBAI 5. 4%5 , 1 ,-( , 6 , & / DR, ITAT, MUMBAI 6. 7' 8 / GUARD FILE. / BY ORDER, 04- //TRUE COPY// / (DY./ASSTT. REGISTRAR) , & / ITAT, MUMBAI,