DINESH RUPA GAGAL, MUMBAI V. INCOME TAX OFFICER 17(1)(4), MUMBAI

ITA 5409/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3723 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 19-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Opportunity of being heard; Cost of acquisition
• Section: 48; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) SMC BENCH, MUMBAI BEFORE SHRI C.N. PRAS AD, HON'BLE JUDICIAL MEMBER IT A. NO. 5409 /MUM/20 19 (A.Y: 20 10 - 11) DINESH RUPA GAGAL FLAT NO. 1903 - B, KANAKIA AROHA DATTA PADA ROAD, BORIVALI (E) MUMBAI - 400066 PAN: AHYPG8366J V. INCOME TAX OFFICER 17 ( 1 )( 4 ) ROOM NO. 115, 1 ST FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MEHUL SHAH DEPARTMENT BY : SHRI SMITA VERMA DATE OF HEARING : 23.09.2021 DATE OF PRONOUNCEMENT : 01. 10 .2021 O R D E R PER C.N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMIS S IONER OF INCOME TAX (APPEALS) - 56 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 12.06.2019 FOR THE ASSESSMENT YEAR 2010 - 11 . 2. ASSESSEE IN HIS APPEAL HAS RAISED FOLLOWING GROUNDS: - 1. ON THE FACTS, AND IN CIRCUMSTANCES OF THE CASE, AND IN LAW, LEARNED COMMISSIONER OF INCOME - TAX (APPEA L) ERRED IN PASSING EX - PARTE ORDERS WITHOUT ENSURING RECEIPT OF THE RELEVANT NOTICES BY THE APPELLANT, AND THEREBY NOT GIVING SUFFICIENT OPPORTUNITY OF BEING 2 ITA.NO. 5409/MUM/2019 (A.Y: 2010 - 11) DINESH RUPA GAGAL HEARD TO THE APPELLANT; AND THE MATTER MAY KINDLY BE RESTORED TO THE FILE OF LEARNED COMMISSIONER OF INCOME - TAX (APPEAL). 2. ON THE FACTS, AND IN CIRCUMSTANCES OF THE CASE, AND IN LAW, LEARNED COMMISSIONER OF INCOME - TAX (APPEAL) ERRED IN RESTRICTING THE COST OF ACQUISITION OF PROPERTY SOLD AT RS. 500,000 AS AGAINST RS. 1,054,000 TO BE FURTHER INDEXED AS PER THE PROVISIONS OF SECTION 48 OF THE INCOME - TAX ACT 1961. 3. ON THE FACTS, AND IN CIRCUMSTANCES OF THE CASE, AND IN LAW, LEARNED COMMISSIONER OF INCOME - TAX (APPEAL) ERRED IN NOT ALLOWING EXEMPTION UNDER SECTION 54 TOWARDS REINVESTMENT OF LONG TERM CA PITAL GAINS IN A RESIDENTIAL PROPERTY. 4. ON THE FACTS, AND IN CIRCUMSTANCES OF THE CASE, AND IN LAW, LEARNED COMMISSIONER OF INCOME - TAX (APPEAL) ERRED IN ARRIVING AT AN AD - HOC ADDITION OF RS. 300,000 TOWARDS COST OF LIVING WITHOUT CONSIDERING SOCIAL STATU S OF THE APPELLANT. 5. YOUR APPELLANT CRAVES LEAVE TO ADD TO, AMEND, ALTER, MODIFY, AND / OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL AT OR BEFORE FINAL DISPOSAL OF APPEAL. 3. LD . COUNSEL FOR THE ASSESSEE SUBMITS THAT LD.CIT(A) PASSED EXPARTE ORDER WITHOU T PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, THEREFORE, CONSIDERING ADDITIONS/DISALLOWANCE MADE BY THE ASSESSING OFFICER LD. COUNSEL FOR THE ASSESSEE REQUESTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE LD.CIT(A). 4. LD. DR HAS NO SERIOUS OBJECTION IN REMITTING THE MATTER BACK TO THE FILE OF THE LD.CIT(A). 3 ITA.NO. 5409/MUM/2019 (A.Y: 2010 - 11) DINESH RUPA GAGAL 5. HEARD BOTH SIDES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON A PERUSAL OF THE LD.CIT(A) ORDER, WE FIND THAT THE EVEN THOUGH THE LD.CIT(A) PROVIDED OPPORTUNITY ON SEVERAL OCCASIONS ASSESSEE COULD NOT APPEAR. CONSIDERING THE TOTALITY OF FACTS AND SUBMISSIONS OF THE LD.COUNSEL FOR THE ASSESSEE AND KEEPING IN VIEW THE ADDITIONS/DISALLOWANCE MADE BY THE ASSESSING OFFICER, I AM OF THE OPINION THAT ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD. THUS, THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) FOR DENOVO ADJUDICATION IN ACCORDANCE WITH LAW. ASSESSEE IS DIRECTED TO APPEAR BEFORE LD.CIT(A) AND SHALL COOPERATE WITH THE APPELLATE PROCEEDINGS WITH OUT TAKING UNNECESSARY ADJOURNMENTS. THUS, THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 01 . 10 .2021 AS PER RULE 34(4) OF ITAT RULES BY PLACI NG THE PRONOUNCEMENT LIST IN THE NOTICE BOARD . SD / - / - (C.N. PRASAD) JUDICIAL MEMBER MUMBAI / DATED 01 / 10 / 2021 GIRIDHAR, SR.PS 4 ITA.NO. 5409/MUM/2019 (A.Y: 2010 - 11) DINESH RUPA GAGAL COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM