DEVVRAT MOONDHRA, MUMBAI V. JOINT COMMISSIONER OF INCOME TAX RANGE-17(1), MUMBAI

ITA 5496/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8515 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 31-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S C TIWARI
• Keywords: Gift; Principle of natural justice
• Section: 56

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , , BEFORE SHRI C.N. PRASAD , JM AND SHRI RAJESH KUMAR, AM ITA NO. 5 496 / MUM/ 2 0 1 7 ( / ASSESSMENT YEAR: 2 0 12 - 13 ) DEVVRAT MOONDHRA, DHAMM STEEL SERVICES PVT LTD., ONLOOKER BUILDING, 1 ST FLOOR, SIR P M ROAD, FORT, MUMBAI - 400001 / VS. THE JOINT COMMISSIONER OF INCOME TAX - RANGE 17(1), M K ROAD, MUMBAI - 400020 ( / APPELLANT) : ( / RESPONDENT ) ./ PAN : AKVPM4975D / ASSESSEE BY : SHRI S C TIWARI / REVENUE BY : SHRI PURUSHOTTAM KUMAR / DATE OF HEARING : 8.11.2017 / DATE OF PRONOUNCEMENT : 8.11.2017 / O R D E R PER RAJESH KUMAR, A. M: THIS IS AN APPEAL FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 3.4.2017 OF LD.CIT(A) - 28, MUMBAI FOR THE ASSESSMENT YEAR 2012 - 13, WHEREBY THE ASSESSEE HAS INTERALIA CHALLENGED THE EX - PARTE ORDER IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. 2 ITA NO. 5496 /MUM/201 7 2. THE ASSESSEE IN THE GROUNDS OF APPEAL HAS RAISED VARIOUS GROUNDS OF APPEAL BUT HE STRESSED UPON THE EX - PARTE ORDER PASSED BY THE LD.CIT(A) WITHOUT GRANTING REASONABLE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. 3 . AT THE OUTSET, THE LD.AR POINTED OUT THAT THE LD.CIT(A) DECIDED THE APPEAL EX - PATE BY NOT ALLOWING THE ASSESSEE PROPER OPPORTUNITY OF HEAR ING THEREBY VIOLAT ING THE PRINCIPLE OF NATURAL JUSTICE AND THUS, THE ASSESSEE WAS NOT HEARD ON MERIT BEFORE DISPOSING OF THE APPEAL. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITS THAT PROVISION S OF RULE 11UA HAVE NO APPLICATION TO THE FACTS OF THE ASSESSEES CASE. LD.COUNSEL SUBMITS THAT AO HAS INSISTED TO WORK OUT THE VALUE IN ACCORDANCE WITH RULE 11UA, AS PER WHICH ASSESSEE ARRIVED AT RS.625/ - BUT THE AO WORKED OUT AT RS.523/ - PER SHARE. IT IS THE CONTENTION OF THE AO THAT THE ASSESSEE GROSSLY OVERSTATED THE CONSIDERATION BUT ACCORDING TO THE ASSESSEES COUNSEL THERE IS NO BASIS FOR THIS FINDING OF THE AO. LD.AR FURTHER SUBMITS THAT FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN PROVISION OF SECTION 56 HAVE NO APPLICATION. HE FURTHER SUBMITTED THAT SALE CONSIDERATION WAS RECEIVED IN CASH. HE SUBMITS THAT PROVISIONS OF SE CTION 56(2)(VII)(A) ARE APPLICABLE FOR THE GIFT AND NOT FOR THE SALE OF SHARES. 4. ON THE OTHER HAND, THE LD. DR OBJECTED TO THE CONTENTION OF THE LD.AR BY SUBMITTING THAT SEVERAL OPPORTUNITIES WERE ALLOWED TO THE 3 ITA NO. 5496 /MUM/201 7 ASSESSEE BUT ON NONE OF THE DATE S GRANTED FOR HEARING, NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED BEFORE THE FAA AND THEREFORE, THE LD.CIT(A) DECIDED THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE BEFORE HIM. THEREFORE THE APPEAL OF THE ASSESSEE BE DISMISSED. 5 . AFTER HEARING BOTH THE PA RTIES, WE FIND THAT THE ISSUE NEEDS TO BE DECIDED ON MERITS AFTER HEARING THE ASSESSEE. MOREOVER, THE LD.CIT(A) HAS NOT PASSED A SPEAKING ORDER AND THEREFORE , WE ARE OF THE OPINION THAT THE MATTER NEEDS TO BE RESTORED TO THE FILE OF THE AO, SO THAT TH E MATTER MAY BE EXAMINED AND DECIDED DENOVO ON MERITS AFTER HEARING THE ASSESSEE. ACCORDINGLY, WE RESTORE THE ISSUE BACK TO THE FILE OF THE LD.CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL ON MERIT AFTER PROVIDING NECESSARY OPPORTUNITY TO THE ASSESSEE. NEEDLESS TO SAY THAT THE ASSESSEE WOULD ALSO CO - OPERATE FOR SPEEDY DISPOSAL OF THE APPEAL BEFORE THE FAA. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 8TH NOV , 2017. S D SD (C.N. PRAS AD) (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 8TH NOV .2017 SRL,SR .PS 4 ITA NO. 5496 /MUM/201 7 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, T RUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI