DINESH B POKHRIYAL, MUMBAI V. INCOME TAX OFFICER WARD-2, PANVEL

ITA 5667/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0378 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 06-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: DINESH POKHRIYAL
• Keywords: Opportunity of being heard

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ I.T.A. NO. 5667/MUM/2017 ( / ASSESSMENT YEAR: 2010 - 11 ) DINESH B. POKHRIYAL FLAT NO. 306, 3 RD FLOOR, CYPRESS BUILDING, VASANT VALLEY, WAYLE NAGAR, KHADAKPADA, KALYAN - 421 301 / VS. ITO, WARD 2, PANVEL ./ ./ PAN/GIR NO. AERPP 9652 C ( / AP PELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI DINESH POKHRIYAL / RESPONDENT BY : MS. N. HEMALATHA / DATE OF HEARING : 14.11.2017 / DATE OF PRONOUNCEMENT : 05.02 .20 18 / O R D E R PER SHAMIM YAHYA , A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER OF THE COMMI SSIONER OF INCOME TAX (APPEALS) DATED 27.06.2017 AND PERTAINS TO THE ASSESSMENT YEAR 2010 - 11. 2. THE GROUNDS OF APPEAL READ AS UNDER: 2 ITA NO. 5667/MUM/2017 (A.Y.2010 - 11 ) DINESH B. POKHRIYAL VS. ITO 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME - TAX (APPEALS)' ERRED IN NOT DECIDING THE GROUNDS 2 TO 5 WITHOUT APPRECIATING THAT THE SAME GOES TO THE ROOT OF THE CASE RIGHT FROM SELECTION OF APPELLANTS CASE FOR S CRUTINY TILL PASSING A COMPLETE ASSESSMENT ORDER AS PER THE PROVISION OF INCOME TAX LAW 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN NOT DELETING/CONFIRMING THE INCOME ADDED AS INTEREST INCOME OF RS 10,18,107 / - WITHOUT APPRECIATING THAT THE SAID AMOUNT ADDED PURELY ON PRESUMPTION, ASSUMPTION, IMAGINATION AND WITHOUT ANY FINDING AS TO HOW THE SAID FIGURES HAD BEEN ARRIVED AS THE SHOW CAUSE NOTICE DATED 25.10.12 PROPOSES ADDITION OF RS 9, 58,725 / - AGAINST INTEREST EXPENSES CLAIMED 861629/ - AND WITHOUT ANY EVIDENCE ON ALLEGATIONS OF RELATED ENTITIES BELONGS TO APPELLANT. 3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN UPHOLDING/ CONFIRMING THE INCOME ADDED AS SHORT TERM CAPITAL GAIN OF R S 4,28,302 / - WITHOUT APPRECIATING THAT THE SAID AMOUNT ADDED PURELY ON PRESUMPTION, CONJECTURES, SURMISES AS ALSO THE SAME IS OF EARLIER ASSESSMENT PERIOD AND WITHOUT JURISDICTION. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER OF INCOME - TAX (APPEALS)' ERRED IN NOT CONSIDERING THAT THE F & 0 LOSS OF RS 12,87,827 / - OUGHT - TO BE COMPUTED AS PER PROVISION OF SECTION 143 AND THEN A COMPLETE ASSESSMENT ORDER TO BE PASSED ESPECIALLY WHEN THERE IS A FINDING BY ASSESSING OFFICER HIMSELF FOR THE F & O LOSS AT PAGE NO.6 OF ORDER AND WITHOUT APPRECIATING THE FACT THAT NON PASSING COMPLETE ORDER RESULTS IN ASSESSMENT ORDER NULL AND VOID. 'THE APPELLANT PRAYS THAT THE ADDITION O F RS. 10,18,107 MADE IN RESPECT OF INTEREST INCOME AND RS 4,29,302/ - MADE IN RESPECT OF SHORT TERM CAPITAL GAIN BE DELETED 3. AT THE THRESHOLD, IT IS NOTED THAT THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS RAISED GROUNDS BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) RELATING THE ASSUMPTION OF JURISDICTION AS RAISED IN GROUND NOS. 1 TO 5 OF THE GROUNDS OF THE APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, THE LD. 3 ITA NO. 5667/MUM/2017 (A.Y.2010 - 11 ) DINESH B. POKHRIYAL VS. ITO COMMISSIONER OF INCOME TAX (APPEALS) IN HIS APPELLATE ORDER HAS NOTED THAT THE ASSESSEE HAS NOT P RESSE D THESE GROUNDS. NOW, THE ASSESSEE HAS FILED AN AFFIDAVIT THAT NO SUCH CONCESSION WAS GIVEN BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). IN THIS REGARD, THE AFFIDAVIT BY THE ASSESSEE MAY BE REFERRED AS UNDER: A FFIDAVIT I, DINESH S/O. BRIJMOHAN UDAYRAM POKHRIYA! DO HERE BY SOLEMNLY STATE AND AFFIRM THAT 1. I SAY THAT I ALONG WITH MY CHARTERED ACCOUNTANT APPEARED BEFORE THE HON'BLE COMMISSIONER OF INCOME TAX(CIT) (APPEALS - 2)FOR HEARING OF APPEAL FILED BEFORE HIM ON 16/05/2013. 2. I SAY THAT MY CHARTERED ACC OUNTANT ARGUED THE MATTER ON ALL THE POINTS STATED IN THE GROUNDS OF APPEAL MEMO. 3. I SAY THAT THE POINT NO.L TO 5 WAS ARGUED AND ALSO JUDGMENT OF CRYSTAL PHOSPHATES LTD V/S ACIT ITA IMO.3630/DEL/2009 DEC IDED BY ITAT DELHI BENCH B ON POINT NO. 2 WAS GIVEN TO HONORABLE CIT BUT HE DIDN'T ACCEPTED THE JUDGMENTS AND WAS NOT ACCEPTING AND SATISFIED WITH THE ARGUMENTS ON POINT 2 TO 5 AND TOLD TO ARGUE THE MATTER ONLY ON MERIT. 4. I SAY THAT THE STATED FACTS IN THE APPEAL ORDER RELATED TO POINT NO.L WAS TO BE WITHDRAWN AND REST POINTS WERE NEVER AGREED TO WITHDRAW NOR SAID IT IS NOT PRESSED FOR ADJUDICATION. 5. I SAY THAT DURING ORAL ARGUMENTS AND DISCUSSIONS WERE GOING ON THE HON'BLE CIT WROTE SOMETHING IN IT S FILE AND ASKED ME TO SIGN AS MY CHARTERED ACCOUNTANT WAS NOT CARRYING AUTHORITY LETTER AND I SIGNED ON THE DOTTED LINE WITHOUT READING THE CONTENTS MYSELF NOR MY CHARTERED ACCOUNTANT READ THE SAID CONTENTS AS ALSO BOTH OF THEM WERE CONTINUING DISCUSSIONS . I SAY THAT WHATEVER STATED ABOVE IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF AND I BELIEVE THE SAME TO BE TRUE. 6. I SAY THAT WHATEVER STATED ABOVE IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF AND I BELIEVE THE SAME TO BE TRU E. SD/ - (DINESH S/O. BRIJMOHAN UDAYRAM POHKRIYAL) 4. UPON CAREFUL CONSIDERATION, I FIND THAT THE INTEREST OF JUSTICE DEMANDS THAT THE GROUNDS SHOULD BE REMITTED TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX 4 ITA NO. 5667/MUM/2017 (A.Y.2010 - 11 ) DINESH B. POKHRIYAL VS. ITO (APPEALS ) , T HE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS ACCORDINGLY DIRECTED TO PASS A SPEAKING ORDER ON THE ISSUE RAISED BEFORE HIM AND NOT ADJUDICATED BY HIM. NEEDLESS TO ADD, THE ASSESSEE SHOULD BE GRANTED PROPER OPPORTUNITY OF BEING HEARD. PARTIES ARE AT LI BERTY TO PURSUE THEIR CASES AS DEEM NECESSARY PURSUANT TO THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AFTER THIS ORDER REMITTING THE SAME TO HIS FILE. 5. IN THE RESULT, THE A PPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDE R PRONOUNCED IN THE OPEN COURT ON 05.02.2018 SD/ - (S HAMIM YAHYA ) / A CCOUNTANT MEMBER MUMBAI ; DATED : 05.02.2018 . . ./ ROSHANI , SR. PS / 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, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI