SMT. MALA D. JAIN, MUMBAI V. INCOME TAX OFFICER-29(2)(3), MUMBAI

ITA 5098/MUM/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0187 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 05-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI
• Keywords: Opportunity of being heard; Set aside
• Section: 201; 22

Judgement Text

1 I.T.A. NO.5098/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHA N (ACCOUNTANT MEMBER) I.T.A. NO. 50 98 /MUM/201 9 (ASSESSMENT YEAR : 2012 - 13) SMT. MALA D JAIN 1904/1905, AUTUMAN HAY NEPTUNE LIVING POINT LBS MARG, BHANDUP (W) MUMBAI PAN : A DTPJ5519K VS ITO, WD.29(2)(3), MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI PRAMOD KUMAR PARIDA, AR RESPONDENT BY SHRI SANJAY J SETHI, DR DATE OF HEARING 24 - 02 - 2021 DATE OF PRONOUNCEMENT 1 1 - 0 3 - 2021 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 26 - 0 4 - 201 9 OF LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 40 , MUMBAI FOR THE ASSESSMENT YEAR 20 1 2 - 1 3 . 2. IN THE PRESENT APPEAL THE ASSESSEE HAS BASICALLY RAISED TWO EFFECTIVE GROUNDS . F IRSTLY, CHALLENGING THE EX PARTE DISPOSAL OF THE APPEAL BY LEARNED 2 I.T.A. NO.5098/MUM/2019 COMMISSIONER (APPEALS) AND SECONDLY, THE MERITS OF THE ADDITION MADE OF RS.8,38,314/ - AS SHORT TERM CAPITAL GAIN. 3. BRIEFLY THE FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR U NDER DISPUTE, ASSESSEE FILED RETURN OF INCOME ON 10 - 08 - 2013 DECLARING TOTAL INCOME OF RS.5,20,490/ - . IN COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT AS PER THE INFORMATION AVAILABLE ON RECORD, THE ASSESSEE HAD ENTERED INTO AN AGREEM ENT FOR PURCHASE AND SALE OF IMMOVABLE PROPERTY DURING THE YEAR . W HEREAS , ASSESSEE HAS NOT OFFERED ANY CAPITAL GAIN ON SUCH TRANSACTION. ON THE CONTRARY, THE ASSESSEE HAS CLAIMED CAPITAL LOSS OF RS.17,42,342/ - . ON NOTICING THE ABOVE, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO FURNISH THE RELEVANT PURCHASE AND SALE AGREEMENT S AND OTHER DOCUMENTS RELATING TO THE TRANSACTION. ON EXAMINING THE DOCUMENTS FURNISHED BY THE ASSESSEE, HE FOUND THAT WHILE THE ASSESSEE HAD PURCHASED THE PROPERTY VIDE AGREEMENT DATED 18 - 06 - 2011 , SHE HAS SOLD THE PROPERTY ON 22 - 07 - 2011. THEREFORE, HE CONCLUDED THAT THE GAIN DERIVED FROM SALE OF PROPERTY HAS TO BE TREATED AS SHORT TERM CAPITAL GAIN AS AGAINST CLAIM OF LONGTERM CAPITAL GAIN. ACCORDINGLY, HE COMPUTED SHORT TERM CAPI TAL GAIN AT RS. 9 ,86,252/ - ON SALE OF THE PROPERTY AND ADDED BACK AN AMOUNT OF RS.8,30,314/ - , BEING ASSESSEES 85% SHARE IN THE SALE CONSIDERATION. ASSESSEE CONTESTED THE AFORESAID ADDITION BEFORE THE FIRST APPELLATE AUTHORITY. HOWEVER, LEARNED COMMISSIONER (APPEALS), WHILE DISMISSING THE APPEAL OF THE ASSESSEE, UPHELD THE ADDITION. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. IT IS EVIDENT, LEARNED COMMISSIONER (APPEALS) HAS DISPOSED OF ASSESSEES APPEAL EX PARTE. THO UGH, IN THE IMPUGNED ORDER, LEARNED COMMISSIONER (APPEALS) HAS MENTIONED THAT THE ASSESSEE NEVER APPEARED TO REPRESENT HER CASE ON VARIOUS 3 I.T.A. NO.5098/MUM/2019 DATES FIXED FOR HEARING OF THE APPEAL; HOWEVER, LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE ASSESSEE HAD NE VER RECEIVED THE NOTICE OF HEARING. WITHOUT ENTERING INTO THE CONTROVERSY AS TO WHETHER THE ASSESSEE HAS RECEIVED THE NOTICE OF HEARING OR NOT, THE CAUSE OF JUSTICE WOULD BE BEST SERVED, IF THE ASSESSEE GETS AN OPPORTUNITY OF BEING HEARD BEFORE THE FIRST A PPELLATE AUTHORITY TO REPRESENT HER CASE. ACCORDINGLY, WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK TO HIS FILE FOR FRESH ADJUDICATION, AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GR OUNDS ARE ALLOWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT, APPEAL ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 1 1 /0 3 /2021. S D / - S D / - (N.K. PRADHAN) ( SAKTIJIT DEY ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 1 1 /0 3 /2021 PAVANAN COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI