MEWALAL GUPTA, MUMBAI V. ITO 9(1)(4), MUMBAI

ITA 497/MUM/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7928 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARTI
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.497/M/2018 ASSESSMENT YEAR: 2010-11 SHRI MEWALAL GUPTA, 98, PATEL COMPOUND, 3 RD ROAD, KHAR (W), MUMBAI 400 052 PAN: AEOPG9145A VS. INCOME TAX OFFICER- 9(1)(4), MUMBAI (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : NONE REVENUE BY : SHRI S.K. BEPARTI, SR.D.R. DATE OF HEARING : 06.09.2018 DATE OF PRONOUNCEMENT : 17.09.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 04.04.2017 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2010-11. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN DISMISSING THE APPELLANT'S APPEAL MERELY BECAUSE THERE WAS NO APPEARANCE ON THE APPELLANT/ASSESSEE'S BEHAL F. THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE MERITS OF THE APPELLAN T'S CASE, ON THE BASIS OF MATERIALS BEFORE HIM. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FAI LED TO CONSIDER THAT THERE WAS NO CAPITAL GAIN(S), DURING THE YEAR UNDER CONSIDERATION, SINCE THERE WAS NO TRANSFER' OF ANY CAPITAL ASSET D URING THE YEAR UNDER CONSIDERATION. 3. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED ITA NO.497/M/2018 SHRI MEWALAL GUPTA 2 IN IGNORING THE FACT THAT THE APPELLANT HAD RECEIVE D THE NEW FLAT IN A REDEVELOPMENT PROJECT AND THERE CAN BE NO CAPITAL G AIN IN THE YEAR IN WHICH THE NEW RESIDENTIAL PREMISES ARE RECEIVED BY THE ASSESSEE. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, MODIFY ANY GROUNDS OF APPEAL. 3. THE ISSUE RAISED IN GROUND NO.1 IS AGAINST THE O RDER OF LD. CIT(A) DISMISSING THE ASSESSEES APPEAL EX-PARTE DU E TO NON APPEARANCE BY THE ASSESSEE OR HIS COUNSEL AND THUS THE ISSUE WAS DECIDED WITHOUT CONSIDERING THE MERIT OF THE CA SE BY THE CIT(A). 4. AFTER PERUSING THE RELEVANT RECORDS AS PLACED BE FORE US DURING THE COURSE OF HEARING AND AFTER HEARING THE LD. D.R., WE ARE OF THE OPINION THAT ASSESSEE SHOULD BE GIVEN ON E MORE OPPORTUNITY TO PRESENT HIS CASE BEFORE THE LD. CIT( A) INTEREST OF JUSTICE. ACCORDINGLY, WE ARE RESTORING THE ISSUE B ACK TO THE FILE OF THE LD CIT(A) WITH THE DIRECTION TO DECIDE THE S AME ON MERIT AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.09.2018. SD/- SD/- (JOGINDER SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 17.09.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI ITA NO.497/M/2018 SHRI MEWALAL GUPTA 3 THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.