Mahesh Bajaj, INDORE V. ITO-4(2), INDORE

ITA 494/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0652 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 22-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MAURYA
• Keywords: Opportunity of being heard; Set aside

Judgement Text

SMC MAHESH BAJAJ ITA NO.494 OF 2019 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.494/IND/2019 A.Y. 2014-15 SHRI MAHESH BAJAJ, INDORE PAN ABRPB4866B :: APPELLANT VS ITO-4(2), INDORE :: RESPONDENT ASSESSEE BY SHRI VIJAY BANSAL, CA RESPONDENT BY SHRI R. P. MAURYA , SR. DR DATE OF HEARING 09 . 0 6 .20 20 DATE OF PRONOUNCEMENT 09.06 .20 20 O R D E R THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. CIT(A)-II, INDORE, DATED 28.09.2018. THE ASSESSEE H AS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LD. CIT(A) HAS ERRED IN PASSING EX-PAR TE ORDER WITHOUT PROVIDING OPPORTUNITY TO BE HEARD. 2. THAT LEARNED AO HAS ERRED BY RELYING ON THE REPO RTS OF SOME DEPARTMENT AUTHORITIES, WHICH ARE NOT EVEN MENTIONI NG THE NAME OF THE APPELLANT AND NOT EVEN CONFRONTED WITH THE A PPELLANT WHICH IS QUITED UNJUST ILLEGAL AGAINST THE FACTS OF THE C ASE. 3. THAT LD. AO HAS ERRED BY MAKING ADDITION WITHOUT APPRECIATING THE RELEVANT DOCUMENTS WHICH WERE PRODUCED BEFORE T HE LD. AO IN SUPPORTED OF GENUINE LONG TERM CAPITAL GAIN. 4. THAT THE LD.AO HAS ERRED IN CONSIDERING THE GENU INE LONG TERM CAPITAL GAIN AS SHAM TRANSACTION WITHOUT ANY EVIDEN CE AGAINST SMC MAHESH BAJAJ ITA NO.494 OF 2019 2 THE APPELLANT, WHICH QUITE JUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 5. THAT LD. AO HAS ERRED IN TREATING LONG TERM CAPI TAL GAIN AS BOGUS ONLY ON THE BASIS OF PRESUMPTIONS AND DOUBTS WHICH QUITE JUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 6. THAT THE AO ERRED ON FACT IN PRESUMING THAT APPE LLANT INCURRED RS.85004/- AS BROKERAGE FOR EARNING LONG TERM CAPIT AL GAIN WHICH IS MOST ARBITRARY AND HYPOTHETICAL WHICH IS Q UITE UNJUST ILLEGAL AGAINST THE FACTS OF THE CASE. 2. AT THE OUTSET OF THE HEARING, LD. COUNSEL FOR TH E ASSESSEE CONTENDED THAT NO PROPER AND MEANINGFUL OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE ASSESSEE BY THE LD. CIT(A). HE SUBMITTED THAT ON 01.05.2018, 06.07.2018, 28.09.2018 & 28.09. 2018, HE WAS INFORMED THAT LD. CIT(A) WOULD NOT BE ATTENDING THE OFFICE ON THESE DAYS. IT WAS FURTHER SUBMITTED THAT THE COUNS EL HIMSELF HAD GONE TO THE OFFICE OF THE LD. CIT(A) AND FOUND THAT LD. CIT(A) WAS NOT AVAILABLE. THEREFORE, IT WAS PRAYED THAT LD . CIT(A) MAY BE DIRECTED IN THIS REGARD. ON THE OTHER HAND, LD. SR. DR OPPOSED THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 3. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE OR DERS OF LOWER AUTHORITIES. CONSIDERING THE FACTS AND CIRCUM STANCES OF THE CASE, I AM OF THE VIEW THAT SINCE NO MEANINGFUL OPP ORTUNITY WAS PROVIDED TO THE ASSESSEE, IN THE INTEREST OF JUSTIC E, THE ASSESSEES MATTER IS LIABLE TO BE RECONSIDERED BY THE LD. CIT( A). ACCORDINGLY, SMC MAHESH BAJAJ ITA NO.494 OF 2019 3 THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS R ESTORED BACK TO THE FILE OF THE LD. CIT(A). THE LD. CIT(A) SHOUL D DECIDE THE APPEAL AFRESH IN TERMS AS INDICATED HEREINABOVE AFT ER AFFORDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS P ER LAW AND THE ASSESSEE IS ALSO DIRECTED TO COOPERATE/APPEAR B EFORE LD. CIT(A) IN THIS REGARD. 4. IN RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 09.06.20 20. SD/ - (KUL BHARAT) JUDICIAL MEMBER DATED : 09.06.2020 PATEL/PS COPY TO: APPELLANT/RESPONDENT/PR.CIT(A)/PR.CIT/DR, INDORE