RAJKUMARI G. JAIN, MUMBAI V. ITO 24(2)(3), MUMBAI

ITA 5676/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3754 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 18-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SRIVASTAVA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI D.KARUNAKARA RAO (AM) AND SHRI RAM LAL NEGI (JM) ITA NO 5676/MUM/2015 ASSESSMENT YEAR: 2005-06 MRS. RAJKUMARI G. JAIN . 11, JAY MAYURASAN CHS LTD, HAHI BAPU ROAD, MALAD (E), MUMBAI- 400097 PAN:- ADYPJ0674Q VS. THE ITO 2 4(2)(3 ), C-13, 6 TH FLOOR, ROOM NO. 603, PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA(E), MUMBAI- 400051. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI. A.K.SRIVASTAVA DATE OF HEARING: 15/03/2016 DATE OF PRONOUNCEMENT: 15/03/2016 O R D E R PER RAM LAL NEGI, JM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DI RECTED AGAINST THE ORDER OF CIT(APPEALS)-34, MUMBAI DATED 11/03/2014, WHICH PER TAINS TO THE ASSESSMENT YEAR 2005-06. THE ASSESSEE HAS CHALLENGE D THE IMPUGNED ORDER ON THE FOLLOWING EFFECTIVE GROUNDS: 1. NATURAL JUSTICE 1.1 THE LEARNED COMMISSIONER OF INCOME TAXES (APPEA LS) MUMBAI, LD. CIT (A) ERRED IN NOT GRANTING PROPER, SUFFICIENT AND A DEQUATE OPPORTUNITY OF BEING HEARD TO THE APPELLANT WHILE FRAMING THE APPELLATE ORDER. 1.2 IT IS SUBMITTED THAT, IN THE FACTS AND THE CIRC UMSTANCES OF THE CASE, AND IN LAW, THE APPELLATE ORDER SO FRAMED BE HELD AS BA D AND ILLEGAL, AS: (I) THE SAME IS FRAMED IN BREACH OF THE PRINCIPLES OF NATURAL JUSTICE; AND 2 ITA NO 5676/MUM/2015 ASSESSMENT YEAR: 2005-06 (II) THE SAME IS PASSED WITHOUT APPLICATION OF MIN D TO THE FACTS AND THE SUBMISSIONS BROUGHT ON RECORD BY THE APPELLANT. WITHOUT PREJUDICE TO THE ABOVE 2.1 THE LD.CIT(A) ERRED IN CONFIRMING THE AC TION OF THE AO IN MAKING ADDITION OF RS. 10, 21, 395/ UNDER THE HEAD INCOM E FROM OTHER SOURCES, AGAINST THE CAPITAL GAIN DECLARED BY THE APPELLANT, WITH RESPECT TO SALE OF THE SHARES. 2.2 IT IS SUBMITTED THAT IN THE FACTS AND CIRCUMSTA NCES OF THE CASE, AND IN LAW, NO SUCH ACTION WAS CALLED FOR. 2.3 ASSUMING BUT NOT ADMITTING THAT ANY ADDITIO N WAS CALLED FOR, IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES O F THE CASE, AND IN LAW, THE COMPUTATION OF THE ADDITION IS NOT IN ACCORDANC E WITH THE LAW. 3.1 THE LD. CIT (A) ERRED IN NOT ADJUDICATING THE G ROUND WITH RESPECT TO NON-GRANTING OF DIRECTION U/S 54 OF THE ACT, AS CLA IMED BY THE APPELLANT. 3.2 IT IS SUBMITTED THAT IN THE FACTS AND CIRCUMSTA NCES OF THE CASE, AND IN LAW THE APPELLANT WAS ENTITLED FOR DEDUCTION UND ER SECTION 54 OF THE ACT. 2. AS PER THE RECORD THE PRESENT APPEAL WAS FILED O N 08.02.2016. THE CASE WAS FIXED FOR HEARING FOR 15.3.1016, BEFORE THE D BENCH. ON 15.3.2016 WHEN THE CASE WAS CALLED, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE REGISTRY INFORMED THAT NOTICE TO THE APPELLANT/ASSESSEE WAS SENT THROUGH REGISTERED AD ON 19.02.2016 AND THE SAME HAS BEEN RECEIVED BACK U NDELIVERED. 3. THE LD. DR AT THE VERY OUTSET POINTED OUT THA T THE PRESENT APPEAL IS BARRED BY LAW OF LIMITATION AS THERE IS AN INORDINATE DELA Y OF 552 DAYS IN FILING THE PRESENT APPEAL. THE LD. DR FURTHER POINTED OUT THAT THE APPELLANT HAS NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY. 4. ON PERUSAL OF RECORD WE ARE SATISFIED THAT THE NOTICE TO THE ASSESSEE WAS SENT BY RPAD TO THE ADDRESS MENTIONED IN THE RELEVA NT COLUMN OF FORM NO 36 I.E., MEMORANDUM OF APPEAL. IT APPEARS THAT THE APP ELLANT IS NO MORE INTERESTED IN PURSUING THE PRESENT CASE. WE ARE, THEREFORE, O F THE VIEW THAT SINCE THE 3 ITA NO 5676/MUM/2015 ASSESSMENT YEAR: 2005-06 LETTER CONTAINING NOTICE HAS RECEIVED BACK UN-DELIV ERED, IT WOULD BE A FUTILE EXERCISE TO SEND THE NOTICE AGAIN TO THE SAME ADDRE SS. MOREOVER, THE APPEAL IS BARRED BY LAW OF LIMITATION AND THE APPELLANT HAS N OT FILED ANY APPLICATION WITH THE MEMORANDUM OF APPEAL FOR CONDONATION OF DELAY. HENCE, IN OUR CONSIDERED VIEW, THERE IS NO NEED TO GO INTO THE MERITS OF THE CASE. WE, THEREFORE, DISMISS THE APPEAL IN LIMINE. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED FOR THE STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MARCH, 2016 SD/- SD/- ( D.KARUNAKARA RAO ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED:15/03/2016 / 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. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA