ITO 19(2)(4), MUMBAI V. MAYA L. NORONHA, MUMBAI

ITA 4083/MUM/2009

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5183 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-05-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 02-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DURGESH SUMROTT
• Assessee Lawyers: HITESH M SHAH
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO. 4083/MUM/2009 (ASSESSMENT YEAR: 2005-06) INCOME TAX OFFICER - 19(2)(4) MRS. MAYA L. NORONHA ROOM NO. 310, 3RD FLOOR VILLA ZINDA, ST. FRANCIS AV ENUE PIRAMAL CHAMBERS, LALBAUG VS. SANTACRUZ (W), MUMBAI 400054 PAREL, MUMBAI 400012 PAN - AACPM1583B APPELLANT RESPONDENT APPELLANT BY: SHRI DURGESH SUMROTT RESPONDENT BY: SHRI HITESH M. SHAH DATE OF HEARING: 08.10.2013 DATE OF PRONOUNCEMENT: 08.10.2013 O R D E R PER D. MANMOHAN, V.P. THIS IS AN APPEAL FILED AT THE INSTANCE OF THE ASSE SSEE AND IT PERTAINS TO A.Y. 2005-06. 2. THERE ARE FIVE GROUNDS IN ALL, THE MAIN ISSUE BEING COMPUTATION OF CAPITAL GAINS REFERABLE TO INCOME RECEIVED ON SURRE NDER OF TENANCY RIGHTS. 3. VIDE ORDER DATED 28 TH JANUARY, 2011 THE ITAT B BENCH, MUMBAI SET ASIDE THE ISSUE TO THE FILE OF THE AO. THE AO, IN T URN, PASSED AN ORDER UNDER SECTION 143(3) R.W.S. 254 OF THE ACT AND IN THE ORD ER DATED 27.12.2007 ALLOWED THE CLAIM OF THE ASSESSEE. IN OTHER WORDS, AS PER THE ORIGINAL ASSESSMENT ORDER THE CAPITAL GAIN WAS TREATED AS NI L BUT UNDER THE HEAD INCOME FROM OTHER SOURCES A SUM OF ` 84,19,788/- WAS TREATED AS CASUAL AND NON-RECURRING INCOME AND ANOTHER SUM OF ` 4,42,068/- WAS ADDED UNDER SECTION 68 OF THE ACT. IN THE ORDER DATED 29. 12.2011, PURSUANT TO THE DIRECTION BY THE TRIBUNAL, THE AO ACCEPTED THAT THE ASSESSEE HAS PROVIDED DETAILS FOR SUBSTANTIATING HER CLAIM OF SURRENDER O F TENANCY AND LONG TERM CAPITAL GAIN ON THE SAME AND ACCORDINGLY COMPUTED T HE NET LONG TERM CAPITAL GAIN AT ` 9,25,202/-. CONSEQUENTLY THE ADDITION OF ` 84,19,788/- MADE UNDER ITA NO. 4083/MUM/2009 MRS. MAYA L. NORONHA 2 THE HEAD OTHER SOURCES WAS DELETED AND THE AO HAS ALSO DELETED THE ADDITION OF ` 4,42,068/- ORIGINALLY MADE UNDER SECTION 68 OF THE ACT. HOWEVER, ON 11.07.2012 THE REVENUE MOVED A MISCELLA NEOUS APPLICATION UNDER THE SIGNATURES OF THE SAME AO, WHO HAS PASSED THE CONSEQUENTIAL ORDER, STATING THAT THE ITAT HAS NOT CONSIDERED GRO UND NO. 3 IN THE APPEAL WHILE RESTORING THE MATTER TO THE FILE OF THE AO. A CCORDINGLY THE TRIBUNAL RESTORED THE MATTER FOR THE LIMITED PURPOSE OF DISP OSING OF GROUND NO. 3 AND THUS THE ISSUE IS PLACED BEFORE US. 4. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT DISPOSAL OF GROUND NO. 3 AT THIS JUNCTURE WOUL D BE OF ACADEMIC NATURE SINCE THE AO HAS ALREADY DELETED THE ADDITION IN TH E ORDER PASSED UNDER SECTION 143(3) R.W.S. 254 OF THE ACT AND HENCE NO U SEFUL PURPOSE WILL BE SERVED AT THIS STAGE BY CONSIDERING THE ISSUE AFRES H. IT WAS ALSO SUBMITTED THAT THE AO MADE THESE DISALLOWANCES WITHOUT PROVID ING AN OPPORTUNITY TO THE ASSESSEE AND THE RECORDS AVAILABLE WITH THE AO REALLY SHOWS THAT THE CASH-IN-HAND IN THE BALANCE SHEET OF EXPRESS GARMEN TS AS ON 31.03.2004 WAS ` 4,42,068/- AND HENCE WITHOUT RECONCILING THE FIGURE S PROPERLY THE AO HAS MADE THE IMPUGNED ADDITION. HAVING REGARD TO TH E CIRCUMSTANCES THE LEARNED CIT(A) DELETED THE ADDITION. AT ANY RATE, W HILE PASSING AN ORDER UNDER SECTION 143(3) R.W.S. 254 OF THE ACT, THE AO HIMSELF DELETED THE SAID ADDITION AND HENCE REVENUES APPEAL, IN SO FAR AS G ROUND NO. 3 IS CONCERNED, IS ACADEMIC. 5. ON THE OTHER HAND, THE LEARNED D.R. SUBMITTED THAT THE ISSUE HAVING NOT BEEN DEALT WITH IN THE FIRST ROUND OF LITIGATIO N BEFORE THE TRIBUNAL THE AO OUGHT TO HAVE AWAITED THE FINAL DECISION OF THE TRI BUNAL BEFORE PASSING AN ORDER UNDER SECTION 143(3) R.W.S. 254 OF THE ACT. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IT IS NOT IN DISPUTE THAT THE AO VERIFIED A LL FACTS AND UPON SATISFACTION WITH REGARD TO THE CASH-IN-HAND AVAILA BLE, THE IMPUGNED ADDITION WAS DELETED AND HENCE THE DECISION ON THIS ISSUE AT THIS STAGE WOULD BE OF ACADEMIC IMPORTANCE. WE, THEREFORE, REJ ECT GROUND NO. 3 OF REVENUE, SINCE THE ORDER PASSED BY THE AO MERELY SU BSTANTIATE THE REASONS ITA NO. 4083/MUM/2009 MRS. MAYA L. NORONHA 3 GIVEN BY THE LEARNED CIT(A) IN THE IMPUGNED ORDER. UNDER THESE CIRCUMSTANCES GROUND NO. 3 OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH OCTOBER, 2013. SD/- SD/- (SANJAY ARORA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 8 TH OCTOBER, 2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XIX, MUMBAI 4. THE CIT X, MUMBAI CITY 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.