BHANWARIBAI JAIN, MUMBAI V. ACIT 22(2), NAVI MUMBAI

ITA 464/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9742 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 20-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIPDR
• Assessee Lawyers: KIRIT SETH
• Keywords: Opportunity of being heard
• Section: 143(3); 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.464 & 465/MUM/2017 ASSESSMENT YEARS: 2004-05 & 2005-06 SMT. BHANWARIBAI CHANDANMAL JAIN, 9, PAREKH BUILDING, N. G. ACHARYA MARG, CHEMBUR STATION ROAD, MUMBAI-400071 / VS. DCIT-22(2), TOWER NO.6, 4 TH FLOOR, RAILWAY COMM. COMPLEX, VASHI, NAVI MUMBAI-400703 ( !'# /ASSESSEE) ( $ / REVENUE) P.A. NO.AAJPJ7284L !'# / ASSESSEE BY SHRI KIRIT SETH $ / REVENUE BY SHRI NEIL PHILIP-DR % $& ' #( / DATE OF HEARING : 10/09/2018 ' #( / DATE OF PRONOUNCEMENT 10/09/2018 ITA NOS.464 & 465/MUM/2017 SMT. BHANWARIBAI CHANDANMAL JAIN 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THESE TWO APPEALS ARE BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 01/12/2016 OF THE LD. FIRST APPELLATE AUTHORITY, MUMBAI, CHALLENGING THE IMPOSI TION /SUSTENANCE OF PENALTY LEVIED UNDER SECTION 271(1)( C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSEE , SHRI KIRIT SETH, CLAIMED THAT THE TRIBUNAL ON QUANTUM AD DITION, VIDE ORDER DATED 17/05/2017, SENT THE ISSUE TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL) FOR FRE SH ADJUDICATION. THE LD. COUNSEL FILED THE COPY OF THE ORDER OF THE TRIBUNAL (ITA NO.4817 & 4818/MUM/2012), ORDER DATED 17/05/2017. THIS FACTUAL MATRIX WAS NOT CONTROVERTED BY SHRI NEIL PHILIP, LD. DR. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PO RTION OF THE AFORESAID ORDER DATED 17/05/2017 FOR READY REFERENCE AND ANALYSIS:- ITA NOS.464 & 465/MUM/2017 SMT. BHANWARIBAI CHANDANMAL JAIN 3 THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST TH E ORDERS OF THE LD. CIT (APPEALS)-33, MUMBAI DATED 30.5.2012 FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 ARISING OU T OF THE ORDER PASSED U/S 143(3) R.W.S 147 OF THE ACT BY THE ASSESSING OFFICER. 2. THE ASSESSEE IN BOTH THESE APPEALS CHALLENGED TH E ORDER OF THE LD. CIT (APPEALS) ON SEVERAL GROUNDS BOTH VA LIDITY AS WELL AS ON MERITS. THE ASSESEE CHALLENGED THE ORDER OF THE LD. CIT (APPEALS) IN UPHOLDING THE VALIDITY OF NOTI CE ISSUED U/S 148 AND CONSEQUENT ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT. WE FIND FROM THE ORDER SHEET NOTINGS OF THE TRIBUNAL THAT THE BENCH DIRECTED THE LD. DR TO PROD UCE THE CASE RECORDS TO VERIFY THE NOTICE ISSUED AND TH E APPROVAL GIVEN BY THE AUTHORITIES IN ISSUING THE NO TICE U/S 148 AS THE ASSESSEE IS CONTENDING THAT 148 NOTICE W AS ISSUED WITHOUT VALID PRIOR APPROVAL/SANCTION OF THE JURISDICTIONAL JOINT COMMISSIONER OF INCOME TAX AS REQUIRED U/S 151(2) OF THE ACT AND TO THAT CONTENTI ON ADDITIONAL GROUND WAS FILED BY THE ASSESSEE BEFORE US. THE ADDITIONAL GROUND FILED BEFORE US WAS NOT PART OF T HE GROUNDS BEFORE THE LD. CIT(APPEALS) NOR IT WAS AGIT ATED BEFORE THE ASSESSING OFFICER. SINCE THE ADDITIONAL GROUND IS GOING TO THE VERY JURISDICTION OF THE PASSING THE ASSESSMENT ORDER AND IS PURELY A LEGAL GROUND, WE A RE OF THE CONSIDERED VIEW THAT THIS GROUND IS TO BE DECID ED BY THE LD.CIT (APPEALS) BY CALLING THE RECORDS FROM TH E CONCERNED ASSESSING OFFICER. THEREFORE, WE ARE OF T HE VIEW THAT MATTER SHOULD BE RESTORED BACK TO THE LD.CIT (APPEALS) FOR ADJUDICATION AFRESH ON ALL THE CONTEN TIONS OF THE ASSESSEE. 3. THE LD. DR HAS NO SERIOUS OBJECTION IN RESTORING THE MATTER BACK TO THE LD. CIT (APPEALS). 4. IN THE CIRCUMSTANCES, WE RESTORE ALL THE GROUNDS IN BOTH THESE APPEALS TO THE FILE OF THE LD.CIT (APPEALS) F OR FRESH ADJUDICATION ON ALL THE TECHNICAL GROUNDS AS WELL A S ON MERITS. THE LD. CIT (APPEALS) SHOULD DISPOSE OFF TH E APPEALS INCLUDING THE ADDITIONAL GROUND AFTER PROVI DING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. WE FIND THAT IN THE AFORESAID ORDER THE TRIBUNAL, RESTORED ALL THE GROUNDS FOR FRESH ADJUDICATION ON TECHNICAL ITA NOS.464 & 465/MUM/2017 SMT. BHANWARIBAI CHANDANMAL JAIN 4 GROUND AS WELL AS ON MERIT, INCLUDING ADDITIONAL GR OUNDS WITH A DIRECTION TO PROVIDE SUFFICIENT OPPORTUNITY TO THE ASSESSEE. IN VIEW OF THIS FACTUAL MATRIX, WE ARE OF THE VIEW THAT THE PENALTY WHICH IS BORNE OUT OF QUANTUM ADDI TION, NEEDS TO THE SENT BACK TO THE FILE OF THE LD. COMMI SSIONER OF INCOME TAX (APPEAL) FOR FRESH ADJUDICATION AS TH E PENALTY WILL BE DEPENDENT UPON THE OUTCOME OF THE QUANTUM APPEAL, WHICH HAS ALREADY BEEN SET-ASIDE TO THE FIL E OF THE LD. FIRST APPELLATE AUTHORITY. THE ASSESSEE BE GIVE N OPPORTUNITY OF BEING HEARD, THUS, BOTH THESE APPEAL S ARE ALLOWED FOR STATISTICAL PURPOSES. FINALLY, BOTH THESE APPEALS ARE ALLOWED FOR STATIST ICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/09/2018. SD/- (N.K. PRADHAN) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; - DATED : 10/09/2018 F{X~{T? P.S/. . . , ITA NOS.464 & 465/MUM/2017 SMT. BHANWARIBAI CHANDANMAL JAIN 5 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./01 / THE APPELLANT 2. 201 / THE RESPONDENT. 3. 3 3 % 4# , ( ./ ) / THE CIT, MUMBAI. 4. 3 3 % 4# / CIT(A)- , MUMBAI 5. 6$7 # , 3 ./( . , % & / DR, ITAT, MUMBAI 6. 8! 9& / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI