HENRIETTA PEREIRA, MUMBAI V. ASST CIT (OSD0 26(1), MUMBAI

ITA 5633/MUM/2011

• Counselvise Citation: 563319914 RSA 2011
• Duration Of Justice: 3 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 30-09-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 04-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KMAR
• Assessee Lawyers: K GOPAL; NEHA PARANJPE
• Keywords: Reopening of assessment; Reassessment proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI , ,, , BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ITA NO. : 5633/MUM/2011 (ASSESSMENT YEAR: 2002-03) SMT. HENRIETTA PEREIRA, B-602, VINTAGE CO-OP. SOC., I.C. COLONY, NEXT TO CITIZEN CREDIT BANK, BORIVALI (WEST), MUMBAI -400 103 .: PAN: AKUPP 5344 E VS ACIT(OSD)- 26(1), K G MITTAL AYURVEDIC COLLEGE & HOSPITAL BUILDING, 6 TH FLOOR, CHARNI ROAD (WEST), MUMBAI -400 002 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K GOPAL & MS NEHA PARANJPE RESPONDENT BY : SHRI LOVE KMAR !' # $% /DATE OF HEARING : 08-01-2015 &'( # $% / DATE OF PRONOUNCEMENT : 13-02-2015 * + * + * + * + O R D E R , , , , : :: : PER VIVEK VARMA, JM: THE APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) 28, MUMBAI, DATED 24.01.2011, WHEREIN, THE FOLLOWING GROUNDS HAVE BEEN TAKEN: GROUND NO. 1: AGAINST REOPENING THE ASSESSMENT BY RELYING ON BASELESS AND UNSUSTAINABLE REASONS. (A) THE COMMISSIONER OF INCOME-TAX (APPEALS) - 28, MUMBAI [HEREINAFTER REFERRED TO AS 'CIT(A)'] HAS ER RED IN SUSTAINING INITIATION OF THE REASSESSMENT PROCEEDIN GS, THOUGH THE SAME WERE INITIATED ON THE BASIS OF THE REASONS (RECORDED), WHICH HAVE I) NEITHER BEEN DISC USSED OR ADJUDICATED UPON IN THE ASSESSMENT ORDER; II) NO R DID THEY RESULT IN ASSESSMENT OF ANY 'ESCAPED' INCOME. (B) YOUR APPELLANT HUMBLY SUBMITS THAT THE ACTION O F REOPENING THE ASSESSMENT WAS VOID AB-INITIO, AS THE SMT. HENRIETTA PEREIRA ITA 5633/M/2011 2 REASONS RECORDED FOR SAME WERE BASELESS AND NO INCO ME IS EVEN ASSESSED IN THE REASSESSMENT PROCEEDINGS ON ACCOUNT OF THOSE REASONS. (C) YOUR APPELLANT, HENCE, PRAYS THAT THE REOPENING OF ASSESSMENT ON THE BASIS OF UNSUSTAINABLE REASONS BE QUASHED AS VOID AB-INITIO. GROUND NO. 2: AGAINST ENHANCING ASSESSED INCOME BY DENYING EXEMPTION OF RS. 500,000/- U/S.10(10C) OF THE ACT, WHICH WAS ALLOWED BY THE ASSESSING OFFICER. (A) THE CIT (A) HAS ERRED IN CONTINUING WITH ENHANC EMENT OF INCOME BY WAY OF DENYING EXEMPTION OF RS. 500,00 0/- UNDER SECTION 10(10C) OF THE ACT, AVAILABLE TO THE APPELLANT, WITHOUT ISSUING ANY NOTICE FOR SUCH ENHANCEMENT. FOR THIS PURPOSE, THE CIT(A) HAS MEREL Y OBSERVED THAT HE IS IN AGREEMENT WITH THE DECISION OF HIS PREDECESSOR WITHOUT CONSIDERING THE SUBMISSIONS MAD E BEFORE HIM. (B) YOUR APPELLANT RESPECTFULLY SUBMITS THAT THE CI T (A) COULD NOT DENY EXEMPTION UNDER SECTION 10(I0C) OF T HE ACT ALLOWED BY THE AO WITHOUT ISSUING NOTICE OF ENHANCEMENT. (C) YOUR APPELLANT, THEREFORE, PRAYS THAT EXEMPTION OF RS. 500,000/-, AVAILABLE TO THE APPELLANT UNDER 10(I0C) AND ALLOWED BY THE AO, BE RESTORED. GROUND NO. 3: AGAINST HOLDING THAT EXEMPTIONS UNDER SECTIONS 10(I0B) AND SECTION 10(10C) ARE NOT ALLOWABLE SIMULTANEOUSLY (A) THE CIT(A) HAS ERRED IN UPHOLDING THE DECISION OF HIS PREDECESSOR THAT SECTIONS 10(10B) AND 10(10C) CANNO T BE APPLIED SIMULTANEOUSLY BY SIMPLY STATING THAT HE AG REES WITH THAT DECISION, ALTHOUGH THE AO HAS STATED IN H IS REMAND REPORT THAT 'THE ASSESSEE IS ENTITLED TO THE DEDUCTION U/S. 10(10B) OF THE ACT IN ADDITION TO TH E DEDUCTION U/S. 10(10C) OF THE I.T. ACT, 1961'. (B)YOUR APPELLANT, THEREFORE, PRAYS THAT EXEMPTION UNDER SECTIONS 10(10B) AND 10(10C) BE HELD AS ALLOWABLE T O APPELLANT, AS SHE SATISFIES THE CONDITIONS OF BOTH THESE SECTIONS. GROUND NO. 4: LEAVE TO ADD, ALTER AND/OR AMEND THE GROUNDS OF APPEAL YOUR APPELLANT REQUESTS FOR LEAVE TO ADD, ALTER AND /OR AMEND THE GROUNDS OF APPEAL, IF SO REQUIRED. 2. AT THE TIME OF HEARING, THE AR MENTIONED THAT EXCEP T FOR THE REOPENING ISSUE, THE CIT(A) HAS NOT ADJUDICATED ON M ERITS. HE, THEREFORE, PLEADED THAT THE CASE BE RESTORED. 3. THE DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 4. WE HAVE HEARD THE CONTENTIONS AND FROM THE PERUSAL OF THE IMPUGNED ORDER, WE FIND THAT THE CIT(A) HAS NOT ADJUDICATE D THE SMT. HENRIETTA PEREIRA ITA 5633/M/2011 3 MERITS, WHICH WERE PART AND PARCEL OF REOPENING AND APPEA L ON MERITS. 5. IN SUCH A CASE, WE ARE OF THE OPINION THAT THE CASE BE RESTORED TO THE CIT(A) FOR FRESH ADJUDICATION. 6. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND DIR ECT THE CIT(A) TO PASS THE ORDER AFRESH ON MERITS AS WELL AS LEGALITY OF REOPENING U/S 148. WE MAY OBSERVE THAT FOR PASSING THE ORDER ON THE APPEAL, THE CIT(A) SHALL ACCORD REASONABLE AND ADEQ UATE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH FEBRUARY, 2015. SD/- SD/- ( ) ( ) * * * * * * * * (R C SHARMA) ( VIVEK VARMA ) ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 13 TH FEBRUARY, 2015 $/ COPY TO:- 1) / THE APPELLANT. 2) / THE RESPONDENT. 3) THE CIT(A) -28, MUMBAI. 4) THE CIT-26, MUMBAI/CIT -26, MUMBAI. 5) .'/0 $! , , / THE D.R. H BENCH, MUMBAI. 6) 012 3 COPY TO GUARD FILE. *+! / BY ORDER / / TRUE COPY / / 4 / 5 6 , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN, SR.PS