MR. PIYUSH KISHANDUTT AGARWAL , MUMBAI V. ITO CIRCLE- 16 (3)2), MUMBAI

ITA 430/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6750 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 17-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JIGAR MEHTA
• Keywords: Principle of natural justice; Condonation of delay; Set aside; Capital Gains
• Section: 271(1)(c); 274

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI RAVISH SOOD (JM) I.T.A. NO.430/MUM/2020 (ASSESSMENT YEAR 2014-15) PIYUSH KISHANDUT AGARWAL 4C, JANAKDEEP, J.P.ROAD SEVEN BUGALOWS, ANDHERI(W) MUMBAI-400.061 PAN : ADCPA7030P VS. ITO,CIRCLE - 16(3)(2) ROOM NO.448, AAYKAR BHAWAN M.K.ROAD MUMBAI-400 020 ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI JIGAR MEHTA DEPARTMENT BY MS. SHREEKALA PARDESHI DATE OF HEARING 3 1 .08 .2021 DATE OF PRONOUNCEMENT 02 .0 9 .202 1 O R D E R PER SHAMIM YAHYA (AM) :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-7 DATED 22.11. 2019 AND PERTAINS TO ASSESSMENT YEAR 2014-15. THE ASSESSEE IS AGGRIEVED BY THE LD.CIT(A) ORDER, WHERE HE HAS NOT CONDONED THE DELAY IN FILING. STIL L HE HAS DECIDED THE ISSUE AGAINST THE ASSESSEE. FURTHER, LD.CIT(A) HAS FAILED TO ADJUDICATE ONE OF THE GROUND RAISED BEFORE HIM. 2. IN THIS CASE ASSESSEE HAS RAISED FOLLOWING GROUN DS BEFORE LD.CIT(A). 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED ASSESSING OFFICE (AO) ERRED IN LEVYING PENALTY OF RS. 9,79,91 0/- U/S 271(1)(C) WITHOUT AFFORDING DUE OPPORTUNITY TO THE APPELLANT TO FILE HER SUBMISSIONS. THE ACT OF THE LEARNED AO IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE NOTICE ISSUED BY LEARNED A.O FOR LEVYING OF PENALTY U/S 271(L)(C) OF THE ACT , R.W.S 274 IS BAD IN LAW SINCE IN THE NOTICE HE HAS NOT MENTIONED WHETHER PENALTY PRO CEEDINGS ARE INITIATED FOR CONCEALMENT OR INACCURATE PARTICULARS OF INCOME. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED! AO DIE! NOT APPRECIATE THAT THE APPELLANT HAD PROVIDE HER CORRE CT INCOME TAX PAN AT THE TIME OF ITA NO.430/MUM/2020 2 REGISTRATION OF THE AGREEMENT HENCE IT WAS NEVER HE R INTENTION NOT TO DISCLOSE THE SAID TRANSACTION TO THE I T DEPARTMENT. THE LEARNED AO F URTHER DID NOT APPRECIATE THAT IT IS A CASE OF ERROR AND NOT A CASE OF A CONCEALMENT OF INCOME SINCE INFORMATION WAS ALREADY PROVIDED TO THE INCOME TAX DEPARTMENT. THE APPELLANT PRAYS THAT THE PENALTY BE DELETED. 3. THERE WAS A DELAY OF 176 DAYS IN FILING APPEAL B EFORE LD.CIT(A). ASSESSEE HAS SUBMITTED FOLLOWING CONDONATION PETITION TO THE LD.CIT(A). 1. THAT I AM ASSESSED TO TAX UNDER INCOME LAX PAN - AD CPA 7030 P SINCE PAST MANY YEARS. 2. THAT DURING THE YEAR 2013-14 RELEVANT TO A.Y. 2014- 15 I HAD SOLD ONE PROPERTY AT MUMBAI AND WHILE REGISTRATION OF THE PROPERTY I HAD ALSO PROVIDED MY INCOME TAX PAN. HOWEVER AT THE TIME OF FILING MY INCOME TA X RETURN DUE TO OVERSIGHT THE SALE OF PROPERTY REMAINED TO BE REPORTED IN THE INCOME TAX RETURN. 3. THAT I HAVE PAID ALL DUE TAXES ON THE CAPITAL GAINS BUT PENALTY PROCEEDINGS WERE INITIATED BY THE ASSESSING OFFICER SIMULTANEOUSLY. THE NOTICE FOR HEARING WAS RECEIVED ON 15.6.2017 WHERE DATE OF HEARING FIXED O N 9.6.2017. HOWEVER DURING DIE SAID PERIOD I WAS OUT OF INDIA AND ACCORDINGLY COULD NOT ATTEND THE HEALING. 4. THAT THE LEARNED AO LEVIED THE PENALTY VIDE HIS ORD ER DTD. 29.6.2017 PRESUMING THAT I AM NOT INTERESTED IN GIVING ANY SUBMISSION. THE SAID ORDER WAS RECEIVED BY ME ON 4.7.2017 AND THE DUE DATE FOR FILING APPEA L WAS 2.8.2017. SINCE I WAS OUT OF INDIA AND ON RETURNING BACK IN INDIA MY HUSB AND WAS VERY MUCH SICK AND HENCE I COULD NOT PREFER APPEAL IN TIME. 5. THAT NOW I AM PREFERRING THE APPEAL AGAINST TH E ORDER OF THE ASSESSING OFFICER AND THERE IS A DELAY OF 176 DAYS. I SAY AND SUBMIT THAT THE DELAY IN FILING APPEAL IS FOR THE BONAFIDE REASONS AND PURELY UNINTENTIONAL AND H AS BEEN CAUSED DUE TO ILL HEALTH OF MY HUSBAND. I SAY AND SUBMIT THAT NO PREJUDICE WOUL D BE CAUSED IF THE DELAY IS CONDONED AND THE APPEAL IS DECIDED ON ITS MERIT BY THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL) - 7, MUMBAI. IN THE AFORESAID C IRCUMSTANCES, I RESPECTFULLY SUBMIT THAT THE PRESENT APPLICATION FOR CONDONATION OF DELAY BE ALLOWED. 4. LD.CIT(A) DID NOT CONDONE THE DELAY. THEREAFTER HOLDING THAT HE WAS NOT CONDONING THE DELAY, HE WENT ONTO UPHOLD THE AO OR DER CONFIRMING THE PENALTY. HOWEVER, HE DID NOT ADJUDICATED GROUND NO .2 ABOVE. ITA NO.430/MUM/2020 3 5. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE US. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORD. WE NOTE TH AT LD.CIT(A) HAS PASSED AN ORDER, WHICH IS NOT AS PER LAW. THE LD.CIT(A) HAS R EJECTED THE ASSESSEES CONDONATION PETITION. ONCE DELAY IS NOT CONDONED AP PEAL STANDS DISMISSED IN LIMINE. LD.CIT(A) THEN COULD NOT HAVE ADJUDICATED U PON THE MERITS. THOUGH, IN OUR CONSIDERED OPINION, THE DELAY OF 176 DAYS ON TH E FACTS AND CIRCUMSTANCES OUGHT TO HAVE BEEN CONDONED. WE CONDONE THE SAME AS SUCH. EVEN, WHEN LD.CIT(A) PROCEEDED TO UPHOLD THE MERIT OF AOS ORD ER, HE COMMITTED A MISTAKE OF NOT ADJUDICATING GROUND NO.2 ABOVE, WHICH CHALLE NGED THE VERY JURISDICTION OF THE AOS ORDER. 6. WE NOTE THAT, HONBLE MADRAS HIGH COURT IN CIT V S. RAMDAS PHARMACY 77 ITR 276 HAS HELD THAT AN APPELLATE AUTHORITY CANNOT DECIDE ONLY ONE ISSUE ARISING OUT OF MANY ISSUES AND DECLINE TO GO INTO T HE OTHER ISSUES RAISED BEFORE IT ON THE GROUND THAT FURTHER ISSUES WILL NOT ARISE IN VIEW OF THE FINDING ON THE ISSUE DECIDED BY IT. IT WAS EXPOUNDED THAT IF THE A PPELLATE AUTHORITY DECLINES TO CONSIDER AND DECIDE THE OTHER ISSUES IT COULD ONLY PROTRACT AND DELAY THE PROCEEDINGS, FOR THE ASSESSEE HAS TO GET THE DECISI ON OF THE APPELLATE AUTHORITY ON THE INITIAL POINT SET ASIDE BY APPROACHING A HIG HER APPELLATE AUTHORITY AND THEREAFTER AGAIN GO BEFORE THE APPELLATE AUTHORITY FOR THE DECISION ON THE OTHER ISSUES LEFT UNDECIDED BY IT EARLIER. IT WAS HELD TH AT THIS WILL AMOUNT TO MULTIPLICATION PROCEEDINGS UNDER THE ACT. IT WAS FU RTHER EXPOUNDED THAT SUBORDINATE COURTS AND TRIBUNALS SHOULD AS FAR AS P OSSIBLE GIVE THEIR VIEWS ON ALL THE POINTS RAISED BEFORE THEM SO THAT THE HIGHE R COURTS WILL HAVE THE BENEFIT OF THE DECISION ON OTHER POINTS ALSO IF THE NECESSI TY ARISES. 7. EXAMINING THE PRESENT ISSUE ON THE TOUCHSTONE OF ABOVE SAID CASE LAW, WE FIND THAT THE ORDER OF LD.CIT(A) HERE DIRECTLY FALL S UNDER THE AMBIT OF HONBLE HIGH COURTS ORDER AS ABOVE. LD.CIT(A) HAS DECIDED ONE ISSUE AND HAS LEFT UNDECIDED ANOTHER ISSUE DULY RAISED BEFORE HIM. HEN CE, WE ARE OF THE ITA NO.430/MUM/2020 4 CONSIDERED OPINION THAT THIS ISSUE [GROUND NO.2 BEF ORE CIT(A)] RAISED BY THE ASSESSEE NEEDS TO BE REMITTED TO THE FILE OF LEARNE D LD.CIT(A). LD.CIT(A) IS DIRECTED TO COMPLETE HIS APPELLATE ORDER BY DECIDIN G ON THIS ISSUE, WHICH WAS DULY RAISED BEFORE HIM BY THE ASSESSEE. AFTER THE O RDER OF LD.CIT(A) IS COMPLETE UPON ADJUDICATION OF THIS ISSUE, BOTH THE PARTIES W ILL BE AT LIBERTY TO FILE NECESSARY APPEALS AS AND IF NECESSARY. 8. ACCORDINGLY, THIS ISSUE IS REMITTED TO THE FILE OF LD.CIT(A). IN VIEW OF OUR ORDER REMITTING THE JURISDICTIONAL ISSUE TO THE FIL E OF LD.CIT(A) SO AS TO COMPLETE HIS ORDER. OTHER ISSUES RAISED IN THIS APPEAL IS NO T BEING ADJUDICATED. 9. IN THE RESULT, ASSESSEE APPEAL IS ALLOWED FOR S TATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 02 .09.2021. SD/- SD/- (RAVISH SOOD) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTAN T MEMBER MUMBAI; DATED : 02/09/2021 THIRUMALESH, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) ITAT, MUMBAI