KAMLESH RAMESHCHANDRA TIWARI, MUMBAI V. ITO WD 30(2)(1), MUMBAI

ITA 538/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2427 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2015
• Court: TRIBUNAL
• Department Lawyers: AJAY
• Assessee Lawyers: M V VAISHNAV
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.538/M/2015 (ASSESSMENT YEAR: 2009 - 2010 ) SMT. KAMLESH RAMESHCHANDRA TIWARI, VILL. NO.1, 1A, GIRDHAR PARK VILLA, ROW COOP. HSG. SOC. LTD, MITHA CHOWKY, MARVE ROAD, MALAD WEST, MUMBAI - 64. / VS. THE INCOME TAX OFFICER, WARD 30(2)(1), C - 13, R.NO.609, BKC, BANDRA EAST, MUMBAI 400 051. ./ PAN : AACPT0801E ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M.V. VAISHNAV / RESPONDENT BY : SHRI AJAY, DR / DATE OF HEARING : 29.06.2016 / DATE OF PRONOUNCEMENT : 22 .07.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 23.1.2015 IS AGAINST THE ORDER OF THE CIT (A) - 41, MUMBAI DATED 24.11.2014 FOR THE ASSESSMENT YEAR 2009 - 2010. IN THIS APPEAL, ASSESSEE RAISED 4 GROUNDS IN TOTO. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BRIEFLY NARRATED THE FACTS OF THE CASE AND BROUGHT OUR ATTENTION TO THE PRELIMINARY ISSUE REGARDING THE ADMISSION OF THE ADDITIONAL EVIDENCE IE FOUR AFFIDAVITS FROM VARIOUS INDIVIDUALS, WHO ARE SAID TO BE THE EMPLOYEES OF THE AS SESSEE. IN THE PRAYER TO THE TRIBUNAL, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RUNNING OF FLOUR MILLS, INCOME OF WHICH IS TAXABLE UNDER THE HEAD INCOME FROM PROFITS AND GAINS OF BUSINESS OR PROFESSION . ON TH E CONTRARY, AO OPINED THAT THE PREMISES (HOUSE) OF THE FLOUR MILLS BELONGS TO THE ASSESSEE AND THEREFORE, INCOME THEREON IS TAXABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. IN CONNECTION WITH THE AFFIDAVITS NOW FILED BY THE ASSESSEE ARE FROM THE EMPLO YEES WHICH ARE ACTUALLY RUNNING THE SAID FLOUR MILLS. LD COUNSEL FOR THE ASSESSEE IS OF THE OPINION THAT THESE AFFIDAVITS WOULD GO TO THE ROOT OF THE MATTER RELATING TO THE PROPER HEAD OF INCOME. THEREFORE, HE 2 PRAYED FOR ADMITTING THE SAID AFFIDAVITS / A DDITIONAL EVIDENCE AND REMANDING THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION. 3. AFTER HEARING THE LD DR, WHO RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES, I AM OF THE OPINION THAT REJECTING OF SUCH VALID AFFIDAVITS IS NOT PROPER IN THE INTEREST OF JUSTICE. THEREFORE, I ORDER FOR ADMITTING THE SAME AND REMAND THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION. AO IS DIRECTED TO ADMIT THE SAID AFFIDAVITS / EVIDENCE AND OT HER PAPERS, IF ANY, WHILE WILL HELP FOR ADJUDICATION OF THE ISSUE AND DECIDE THE ISSUE AFRESH BY PASSING SPEAKING ORDER IN THE MATTER AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. ACC ORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUN CED IN THE OPEN COURT ON 2 2 N D JULY, 2016. S D / - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 22 .7 .2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI