ST. JOSEPH EDUCATION & MEDICAL RELIEF SOCIETY, MUMBAI V. ADIT (E)-II(1), MUMBAI

ITA 409/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79142 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 19-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 14-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM BATRA
• Assessee Lawyers: ABHISHEK TILAK
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NOS. 409/MUM/2013 ASSESSMENT YEAR: 2009-10 ST. JOSEPH EDUCATION & MEDICAL RELIEF SOCIETY ST. JOSEPH CONVENT, 64-A, HILL ROAD, BANDRA (W) MUMBAI-400 050 PAN:AAATS 2693 D VS. ADIT (E)-II(1) PIRAMAL CHAMBERS, PAREL MUMBAI- 400 012 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIPUL JOSHI & ABHISHEK TILAK REVENUE BY SHRI VIKRAM BATRA DATE OF HEARING : 19.05.2014 DATE OF PRONOUNCEMENT : 18.06.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A)-1, MUMBAI DATED 22.10.2012 FOR THE ASSESS MENT YEAR 2009-10. 2. IN THIS APPEAL, THE ASSESSEE HAS AGITATED THE AC TION OF THE LD.CIT(A) IN CONFIRMING THE ACTION OF THE AO IN TAXING THE IMPUG NED INCOME AMOUNTING TO RS.2,17,15,044/- ON ACCOUNT OF VARIOUS RECEIPTS UND ER THE HEAD PROFIT AND GAINS OF BUSINESS OF PROFESSION. THE IMPUGNED AMOUNT OF RS. 2,17,15,044/- CONSISTED OF (A) ROYALTIES INCOME (CATERERS)- OF RS.20,30,000/-, (B) HIRING INCOME OF RS.22,81,897/-, (C) MISCELLANEOUS SALES RS.8,13,023/-, (D) SALES OF MACHINERY INCOME RS.4,84,000/-, (E) COMMISSION INCOME OF RS.10,49,500/-,(F) P.C.O. COLLECTION OF RS.12,705/-,(G) NURSING COURSE FEES RS.44,185/-, (H)LUNCH INCOME RS .1,50,183/-, (I) CANTEEN INCOME OF RS.2,67,043/-, (J) FARM INCOME OF RS.1,09 ,525/-, (K) MISCELLANEOUS INCOME OF RS.4,99,143/-, (L) SALE OF SCRAP OF RS.93 ,856/-, (M) RENT INCOME OF RS.77,003/- AND (N) INTEREST ON FIXED DEPOSIT & SAV ING OF RS.1,38,42,996/-. ITA NOS. 409/MUM/2013 ST. JOSEPH EDUCATION & MEDICAL RELIEF SOCIETY ASSESSMENT YEAR: 2009-10 2 3. AT THE OUTSET, IT IS OBSERVED THAT IN ASSESSMENT FRAMED U/S 143(3) OF THE ACT, VIDE ORDER SHEET NOTING DATED 09.11.2011, THE AO HA S SOUGHT THE DETAILS AS REGARDS THE INCOME RECEIVED BY THE ASSESSEE FROM REALITIES, AGENCY COMMISSION, GROUND AMENITIES, INCOME FROM CANTEEN AND INCOME FROM FARM HOUSE. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE HAS GIVEN A REPLY VIDE IT S LETTER DATED 15.11.2011. HOWEVER, THE AO HAS PASSED THE ASSESSMENT ORDER WHI CH RESULTED IN TAXING THE IMPUGNED INCOME AMOUNTING TO RS.2,17,15,044/- UNDER THE HEAD PROFIT AND GAINS OF BUSINESS OF PROFESSION. THE PERUSAL OF THE ASSESSM ENT ORDER REVEALS THAT THE AO HAS NOT ONLY TAXED THE INCOME SAID STATED IN THE SHOW C AUSE NOTICE, BUT ALSO TAXED THE OTHER INCIDENTAL INCOME NOT COVERED IN THE SHOW CAU SE NOTICE WHICH ALSO INCLUDED INTEREST ON FIXED DEPOSIT OF RS.1,38,42,996/-. THE PERUSAL OF THE ORDER OF THE LD.CIT(A) REVEALS THAT THIS PARTICULAR ASPECT OF PR OCEDURAL IRREGULARITY/VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE COMMITTED BY THE AO HA S NOT BEEN ADJUDICATED BY THE LD.CIT(A) WHILE CONFIRMING THE ADDITION MADE BY THE AO DESPITE THE FACT THAT THE ASSESSEE HAS FILED THE WRITTEN SUBMISSIONS DATED 25 .07.2012 BEFORE THE LD.CIT(A). ALSO, THE LD.CIT(A) HAS NOT EVEN ADJUDICATED ON MER ITS, THE LEGALITY OF VARIOUS ADDITIONS INCLUDING THE INCOME OF INTEREST ON FIXED DEPOSIT & SAVING OF RS.1,38,42,996/- WHILE CONFIRMING THE ACTION OF THE AO IN TAXING THE IMPUGNED INCOME AMOUNTING TO RS.2,17,15,044/- UNDER THE HEAD PROFIT AND GAINS OF BUSINESS OF PROFESSION. IN VIEW OF THAT MATTER, WE ARE OF TH E CONSIDERED OPINION THAT IT IS JUST AND PROPER TO SET ASIDE THE APPEAL TO THE FILE OF T HE LD.CIT(A) FOR FRESH ADJUDICATION AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WE ORDER AND DIRECT ACCORDINGLY. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18TH DAY OF JUNE, 2014. SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 18.06.2014. *SRIVASTAVA ITA NOS. 409/MUM/2013 ST. JOSEPH EDUCATION & MEDICAL RELIEF SOCIETY ASSESSMENT YEAR: 2009-10 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR D BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.