NILESH N. SHAH, MUMBAI V. INCOME TAX OFFICER-13(1)(1), MUMBAI

ITA 4527/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7796 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 20-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHADR
• Assessee Lawyers: KUNAL PANDEY
• Keywords: Rectification of order; Opportunity of being heard; Difference of opinion; Change of opinion
• Section: 143(3); 154

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.4527/MUM/2017 ASSESSMENT YEAR: 2010-11 SHRI NILESH N SHAH, 159, SWASTIK RUBBER, NAGDEVI STREET, MUMBAI-400003 / VS. INCOME TAX OFFICER-13(1)(1) ROOM NO.419, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 / ASSESSEE / REVENUE P.A. NO. ANEPS0121R $ % & / ASSESSEE BY SHRI KUNAL PANDEY $ % & / REVENUE BY MS. N. HEMALATHA-DR / DATE OF HEARING 19/12/2017 & / DATE OF ORDER: 19/12/2017 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 27/03/2017 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI, AFFIRMING THE ACTION OF THE LD. ASSESSING O FFICER PASSING RECTIFICATION ORDER U/S 154 OF THE INCOME T AX ACT, ITA NO.4527/MUM/2017 NILESH N SHAH 2 1961 (HEREINAFTER THE ACT) BY CHANGING THE HEAD OF INCOME OF RS.26,50,000/- FROM THE HEAD INCOME FROM BUSINE SS TO INCOME FROM OTHER SOURCES MERELY ON THE BASIS OF CHANGE OF OPINION AND THAT TOO WITHOUT PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE, SHRI KAMAL PANDEY, ADVANCED ARGUMENTS WHI CH IS IDENTICAL TO THE GROUND RAISED BY CONTENDING THA T BEFORE ANY RECTIFICATION IS MADE U/S 154 OF THE ACT, THE L D. ASSESSING OFFICER WAS EXPECTED TO PROVIDE OPPORTUNI TY TO THE ASSESSEE. MY ATTENTION WAS INVITED TO THE ORDER PASSED BY THE LD. ASSESSING OFFICER. ON THE OTHER HAND, M S. N. HEMLATHA, LD. DR, DEFENDED THE RECTIFICATION MADE B Y THE ASSESSING OFFICER AND AFFIRMED BY THE LD. COMMISSIO NER OF INCOME TAX (APPEAL). 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE LD. ASSESSING OFFICER WHILE PAS SING THE ORDER U/S 143(3) OF THE ACT MADE ADDITION OF RS.26,50,000/- UNDER THE HEAD INCOME FROM BUSINESS ITA NO.4527/MUM/2017 NILESH N SHAH 3 WHICH WAS SUO-MOTO RECTIFIED BY PASSING AN ORDER U/ S 154 OF THE ACT AND THE ADDITION WAS MADE UNDER THE HEAD INCOME FROM OTHER SOURCES. THE GRIEVANCE OF THE ASSESSEE IS THAT NO OPPORTUNITY WAS PROVIDED TO THE ASSESSEE. I AM OF THE VIEW THAT EVEN FOLLOWING THE PRINCIPLE OF JUSTICE, NO PERSONS SHOULD BE CONDEMNED UNHEARD. EVEN OTHERWISE, AS PER SUB-SECTION 154(2)(A), THE L D. ASSESSING OFFICER IS EMPOWERED TO MAKE THE RECTIFIC ATION BUT AS PER SUB-SECTION (6) TO SECTION 154, WHERE AN Y SUCH AMENDMENT HAS THE EFFECT THE ENHANCING THE ASSESSME NT OR REDUCING A REFUND, THE ASSESSING OFFICER SHALL S ERVE UPON THE ASSESSEE OR THE DEDUCTOR, AS THE CASE MAY BE A NOTICE IN THE PRESCRIBED FORM, THE EVIDENCE CLEARLY SHOWS THAT NO SUCH OPPORTUNITY OR NOTICE WAS PROVIDED/GIV EN TO THE ASSESSEE, THEREFORE, WITHOUT GOING INTO THE MER ITS OF THE APPEAL, IT IS DEEMED APPROPRIATE THAT THE MATTE R SHOULD BE REMANDED BACK TO THE FILE OF THE LD. ASSE SSING OFFICER TO ADJUDICATE THE APPEAL OF THE ASSESSEE ON MERIT. DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO FURNISH NEC ESSARY ITA NO.4527/MUM/2017 NILESH N SHAH 4 EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM. THUS, TH E APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 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. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 19/12/2017 SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 19/12/2017 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * / THE CIT, MUMBAI. 4. ) ) * / CIT- , MUMBAI 5. +,- ' , ) '#$ ' / , / DR, ITAT, MUMBAI 6. -0 1$ / GUARD FILE. & / BY ORDER, (+# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI