SHAKIR AFZAL AHMED, MUMBAI V. ITO 21(3)(2), MUMBAI

ITA 4915/MUM/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84327 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 25-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Keywords: Gift; Opportunity of being heard; Question of law; Reassessment proceedings
• Section: 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES SMC, MUMBAI . . , BEFORE SHRI I P BANSAL, JUDICIAL MEMBER ./ITA NO.4915/MUM/2014 ( / ASSESSMENT YEAR:2005-06) SHRI SHAKIR AFZAL AHMED, B-19, VAIBHAV INDL. ESTATE, SAKI VIHAR ROAD, ANDHERI (EAST) MUMBAI- 400 059 PAN AADPA6376N VS. THE ITO 21(3)(2), MUMBAI ( ! /APPELLANT) ( '# ! / RESPONDENT) APPELLANT BY : SHRI SHEKHAR GUPTA RESPONDENT BY : SHRI NEIL PHILIP DATE OF HEARING : 26.11.2014 DATE OF PRONOUNCEME NT :26.11.2014 $ / O R D E R THIS APPEAL IS FILED BY THE ASSESSEE. IT IS DIRECT ED AGAINST THE ORDER PASSED BY THE CIT(A) DATED 13.05.2014 FOR A.Y. 2005-06. THE GROUNDS OF APPEAL FILED ALONGWITH FORM NO.36 READ AS UNDER: 1. THE LEARNED CIT(A)-32 HAS ERRED IN LAW AND ON THE F ACTS OF THE CASE IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFIC ER OF RS.2,25,000/- U/S. 68 OF THE INCOME TAX ACT, 1961 WITHOUT APPRECI ATING THE FACT THAT THE SAME IS A GIFT FROM THE ASSESSEES FATHER-IN-LA W & THE ASSESSEES FATHER-IN-LAW HAS EARNED THE MONEY WHEN HE WAS EMPL OYED OUT OF INDIA. SUBSEQUENTLY, VIDE LETTER DATED 9.09.2014, THE ASSE SSEE HAS FILED ADDITIONAL GROUNDS OF APPEAL, WHICH READ AS UNDER: 2 ITA NO.4915/MUM/2014 AY:2005-06 1. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN RE-OPENING THE ASSESSMENT U/S. 147 O F THE INCOME TAX ACT. 2. THE ASSESSEE CRAVES LEAVE TO ADD, ALTER OR AMEND THE ABOVE ADDITIONAL GROUND OF APPEAL. 2. IT WAS SUBMITTED THAT THE ADDITIONAL GROUND IS A LEGAL GROUND AND AS IT RELATES TO JURISDICTION, THEREFORE, THE SAME SHOULD BE ADMI TTED. IT WAS FURTHER SUBMITTED THAT THIS GROUND WAS NOT RAISED BEFORE THE CIT(A) A S THE CHARTERED ACCOUNTANT HANDLING THE MATTER WAS NOT WELL ADVISED. THEREFOR E, RELIANCE WAS PLACED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NA TIONAL THERMAL POWER CO. LTD. VS CIT 229 ITR 383 (SC), WHEREIN IT HAS BEEN HELD THAT TRIBUNAL HAS JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH ARISES FROM THE FAC TS AS FOUND BY THE AUTHORITIES BELOW AND HAVING A BEARING ON THE TAX LIABILITY OF THE ASSESSEE. THOUGH THE ADDITIONAL GROUND WAS NOT RAISED BEFORE THE CIT(A), IT WAS SUBMITTED THAT ACCORDING TO SECTION 151(2), WHEN NOTICE U/S. 148 IS ISSUED B EYOND FOUR YEARS THEN THE NOTICE CANNOT BE ISSUED UNLESS THE JOINT COMMISSIONER IS S ATISFIED ON THE REASONS RECORDED BY THE AO THAT IT IS A FIT CASE FOR ISSUE OF SUCH N OTICE. IT WAS SUBMITTED THAT COPY OF NOTICE PLACED AT PAGE 1 OF THE PAPER-BOOK WOULD REV EAL THAT THE NOTICE HAS BEEN ISSUED WITHOUT TAKING SUCH AN APPROVAL. THEREFORE, IT WAS SUBMITTED THAT THE ADDITIONAL GROUND IS REQUIRED TO BE ADMITTED AND FO R ASCERTAINING THE FACT THAT THE NOTICE WAS ISSUED WITHOUT SATISFACTION OF THE JOINT COMMISSIONER, THE MATTER MAY BE RESTORED TO THE FILE OF THE CIT(A). 3. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT ACCORDING TO THE DECISION OF THE MUMBAI BENCHES OF THE TRIBUNAL IN THE CASE O F BATLIBOI & CO. LTD. 67 ITD 397 (MUM), ADDITIONAL GROUND RAISED BY THE ASSESSEE CAN NOT BE ADMITTED WITHOUT EXISTENCE OF GOOD REASONS FOR OMISSION OF GROUND IN ORIGINAL MEMO OF APPEAL. 4. I HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. AF TER HEARING BOTH THE PARTIES, APPLYING THE DECISION OF HONBLE SUPREME COURT IN T HE CASE OF NATIONAL THERMAL POWER CO. LTD. (SUPRA), I ADMIT THE ADDITIONAL GROU ND. SINCE IT HAS TO BE ASCERTAINED WHETHER NOTICE U/S. 148 IS ISSUED IN ACCORDANCE WIT H SUB-SECTION 2 OF SECTION 151, I 3 ITA NO.4915/MUM/2014 AY:2005-06 CONSIDER IT JUST AND PROPER TO RESTORE THIS ISSUE T O THE FILE OF THE CIT(A) TO ADJUDICATE THIS GROUND AFTER VERIFYING THE CONTENTIONS OF THE ASSESSEE REGARDING THE VALIDITY OR OTHERWISE OF THE REASSESSMENT PROCEEDINGS. I DIREC T ACCORDINGLY. 5. SINCE I AM RESTORING THIS APPEAL TO THE FILE OF THE LEARNED CIT(A) AND THE CASE ON MERIT WAS ALSO NOT ARGUED BEFORE ME, I DO NOT EX PRESS ANY OPINION ON MERITS OF THE CASE AS THE LEGAL ISSUE HAS TO BE DECIDED FIRST . IF THE LEGAL ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE THEN THERE WOULD BE NO NEED TO DECIDE THE APPEAL ON MERITS. HOWEVER, IF THE LEGAL ISSUE IS DECIDED AGAINST THE ASSESSEE, THEN THE LEARNED CIT(A) MAY RE-ADJUDICATE THE ISSUE ON MERITS AFTER GIVING THE ASSESSEE REASONABLE OPPORTUNITY OF BEING HEARD. 6. WITH THESE OBSERVATIONS, THE APPEAL FILED BY THE ASSESSEE IS DISPOSED OF AND SHALL BE CONSIDERED TO BE ALLOWED FOR STATISTICAL P URPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF NOVEMBER, 2014. SD/- (I P BANSAL) JUDICIAL MEMBER MUMBAI, DT :26 TH NOVEMBER, 2014 SA COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T, CONCERNED 4. THE CIT (A)-CONCERNED 5. THE DR, SMC BENCH, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI