MRS. SULAKSHANA NANCHE, MUMBAI V. ITO 33 (3)(5), MUMBAI

ITA 457/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9617 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 20-01-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital Gains
• Section: 143(3); 246A

Judgement Text

, , ! IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER . 457 / /20 20 ('. . 2014-15 ) ITA NO.457/MUM/2020 (A.Y.2014-15) MRS. SULAKSHANA NANCHE, BUNGLOW NO.98, MADHUSHRI, CHARKOP, SECTOR 1, KANDVIVALI WEST, MUMBAI 400 067 PAN: ACUPN-3354-Q ...... ) / APPELLANT ' VS. THE INCOME TAX OFFICER 33(3)(5), KAUTILYA BHAVAN, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI 400 051. ..... *+/ RESPONDENT ),/ APPELLANT BY : MS. CHAITEE LONDHE *+,/ RESPONDENT BY : SHRI SANJAY J. SETHI '-+ / DATE OF HEARING : 28/06/2021 ./0 -+ / DATE OF PRONOUNCEMENT : 26/07/2021 / ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) -45, MUMBAI [IN SHORT THE CIT (A)] DATED 23/10/2019 FOR THE ASSESSMENT YEAR 2014-15. 2. THIS APPEAL IS TIME BARRED BY THREE DAYS. MS. CHAITEE LONDHE APPEARING ON BEHALF OF THE ASSESSEE MADE ORAL PRAYER FOR CONDONA TION OF DELAY. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE DELAY IN FILING OF APPEAL WAS CAUSED DUE TO WRONG CALCULATION OF PERIOD OF LIMI TATION. THE DELAY IN FILING OF THE APPEAL IS NOT INTENTIONAL OR FOR INACTION ON THE PA RT OF APPELLANT/ASSESSEE. 2 ITA NO.457/MUM/2020 (A.Y.2014-15) 3. SUBMISSIONS MADE BY LD. AUTHORIZED REPRESENTATIV E FOR THE ASSESSEE HEARD. THE REASON FOR DELAY IN FILING OF THE APPEAL APPEAR S TO BE BONAFIDE. HENCE, THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED TO BE HEARD AND DISPOSED OFF ON MERITS. 4. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE SUBMITTED THAT THE IMPUGNED ORDER BY CIT(A) IS AN EX-PARTE ORDER. THE CIT(A) HAS DISMISSED THE APPEAL FOR NON PROSECUTION. THE CIT(A) HAS ALSO PASSED TH E ORDER ON MERITS OF THE ADDITION. THE SOLITARY ISSUE RAISED IN THE APPEAL BEFORE THE CIT(A) WAS AGAINST ADHOC ADDITION OF RS.32,99,494/- MADE BY ASSESSING OFFICER UNDER THE HEAD CAPITAL GAINS. THE LD.AUTHORIZED REPRESENTATIVE OF THE ASSESSEE PRAYE D THAT AN OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO PLACE THE FACTS BEFORE C IT(A). THE ASSESSEE HAS PRIMA- FACIE GOOD CASE IN HER FAVOUR. IN CASE AN OPPORTU NITY IS GIVEN TO PRESENT THE CASE BEFORE THE CIT(A), THE ASSESSEE WOULD BE ABLE TO M AKE OUT A FAVOURABLE CASE. 5. ON THE OTHER HAND, SHRI SANJAY J. SETHI REPRESE NTING THE DEPARTMENT SUBMITTED THAT THE NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE BY CIT(A) MULTIPLE TIMES. DESPITE SERVICE OF NOTICE THE ASSESSEE FAIL ED TO APPEAR BEFORE THE FIRST APPELLATE AUTHORITY , HENCE, THE CIT(A) WAS CONSTRA INED TO PROCEED EX-PARTE. 6. BOTH SIDES HEARD, ORDERS OF AUTHORITIES BELOW EX AMINED. A PERUSAL OF THE IMPUGNED ORDER REVEALS THAT THE CIT(A) HAS DISMISSE D THE APPEAL PRIMARILY FOR NON- PROSECUTION. THE TRIBUNAL HAS TIME AND AGAIN HELD THAT THE CIT(A) HAS NO POWER TO DISMISS THE APPEAL FOR NON-PROSECUTION OR NON-APPEA RANCE [RE: CREATIVE CASUALS VS. ADDL.CIT, ITA NO.4686/MUM/2009 DECIDED ON 27/08/201 0]. ONCE AN APPEAL UNDER SECTION 246A OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') IS FILED, THE CIT(A) IS DUTY BOUND TO DECIDE THE APPEAL ON MERITS. 7. IT IS FURTHER OBSERVED THAT THE CIT(A) HAS ALSO GIVEN HIS FINDINGS ON MERITS OF THE ISSUE WITHOUT CONSIDERING THE REPORT OF DVO. T HE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDING HAD REFERRED VALUATION OF P ROPERTY TO DVO UNDER SECTION 50C(2) OF INCOME TAX ACT,1961 ( IN SHORT 'THE ACT') VIDE LETTER DATED 23/11/2016. 3 ITA NO.457/MUM/2020 (A.Y.2014-15) SINCE, THE ASSESSMENT WAS GETTING TIME BARRED AND REPORT FROM THE DVO WAS NOT RECEIVED, THE ASSESSING OFFICER, PASSED THE ASSE SSMENT ORDER UNDER SECTION 143(3) OF THE ACT ON 29/12/2016. WITHOUT COMMENTING ON ME RITS OF THE ISSUE RAISED IN APPEAL, THE APPEAL IS RESTORED BACK TO THE CIT(A) FOR ADJUDICATION ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 8. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE CI T(A) ON SERVICE OF THE NOTICE AND CO-OPERATE IN FIRST APPELLATE PROCEEDINGS. THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE IN THE TERMS AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON MONDA Y, THE 26 TH DAY OF JULY, 2021 SD/- (VIKAS AWASTHY) / JUDICIAL MEMBER / MUMBAI, 2'/ DATED 26/07/2021 VM , SR. PS (O/S) COPY OF THE ORDER FORWARDED TO : 1. ) / THE APPELLANT , 2. *+ / THE RESPONDENT. 3. 3+ ( )/ THE CIT(A)- 4. 3+ CIT 5. 45*+' , . . . , / DR, ITAT, MUMBAI 6. 56789 / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI