BIPIN AMRATLAL SHAH, MUMBAI V. ACIT 18 (1) MUMBAI, MUMBAI

ITA 5959/MUM/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 4544 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 17-09-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PAYAL DEDHIA
• Keywords: Depreciation; Capital Gains
• Section: 2(14); 14A; 251; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” Bench, Mumbai Before Shri SHAMIM YAHYA, AM & Shri RAHUL CHAUDHARY, JM I.T.A. No.5959/Mum/2019 (Assessment Year 2013-14) Bipin Amratlal Shah 501, 5 th Floor 113, Sylrite Optical Industires Aman Chambers New Queens Road Opera House Mumbai-400 004 PAN : AACPS2022G Vs. ACIT-18(1) 2 nd floor Earnest House Nariman Point Mumbai-400 021 (Appellant) (Respondent) Assessee by Payal Dedhia Department by Shri C.T.Mathews, Sr.AR Date of Hearing 01.02.2022 Date of Pronouncement 13 .04.2022 O R D E R Per Shamim Yahya (AM) :- This appeal by the assessee is directed against the order of learned Commissioner of Income Tax (Appeals)-53, dated 27.05.2019 and pertains to assessment year 2013-14. 2. Grounds of appeal read as under:- 1. In the facts and circumstances of the case and in law, the learned Commissioner of Income Tax(Appeals)-53, Mumbai has erred in confirming disallowance of Rs. 11,14,309/- u/s. 14A of the Income Tax Act, 1961. 2.In the facts and circumstances of the case and in law, the learned Commissioner of Income Tax(Appeals)-53, Mumbai has erred in confirming disallowance of interest on car loan of Rs. 1,93,267/- ITA No.5959/Mum/2019 2 3. In the facts and circumstances of the case and in law, the learned Commissioner of Income tax(Appeals)-53, Mumbai has erred in confirming ad hoc disallowance of following expenses merely on surmises and conjectures. Sr.No. Head of Expenses Amount debited in P&L Account % of Disallowance Amount Disallowed 1 Motor Car Expenses 28,052 20% 5,610 2 Depreciation on BMW car 4,86,805 20% 97,361 3 Petrol Expenses 40,225 20% 8,045 4 Car Insurance 62,595 20% 12,519 Total 1,23,535 4. In the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)-53, Mumbai has erred in confirming the taxability of Long Term Capital Gain of Rs. 33,37,227/- in respect of sale of agricultural land. It is prayed that the land transferred was a rural agricultural land which is not a capital asset u/s. 2(14) of the Act and hence there is no taxable capital gains on its transfer. 3. Brief facts of the case are that assessment order in this case was passed u/s. 143(3) of the Act on 23.04.2016. In the assessment order AO made disallowances and addition as under:- Disallowance u/s. 14A Rs. 11,14,309/- Disallowance of interest on car loans Rs. 1,93,267/- Disallowances of expenses Rs. 1,23,535/- Addition from capital gain Rs. 6,20,564/-. 4. Against the above order, assessee appealed before the ld.CIT(A). Appeal was filed on 23.04.2016. The ld.CIT(A) fixed the case for haring on 22.03.2019. Thereafter, noting that assessee sought adjournment, he proceeded to hold that assessee has not made any submission in respect of the grounds of appeal till date being 27.05.2019. Hence, he held that “in these facts, the grounds of appeal are dismissed off without providing any further opportunity”. Thereafter, ld.CIT(A) repeated that AO’s order ITA No.5959/Mum/2019 3 and held that since assessee has not filed any submissions/evidence in support of the ground, the grounds raised by the assessee are dismissed. 5. Against the above order, assessee is in appeal before us. 6. We have heard both the parties and perused the records. We find that ld.CIT(A) has taken up the appeal after three years of filing of the appeal and within a very short span of time has dismissed the appeal for non-persecution. The only reason to uphold the order of AO mentioned by the ld.CIT(A) is that no submission was made before him by the assessee. We find that the above is a non speaking, non reasoned and cryptic order, not sustainable in law. As a matter of facts, the income tax Act in section 251 of the I.T.Act dealing with the power of ld.CIT(A) does not provide for any power to the ld.CIT(A) to dismis the appeal for non-prosecution. In these facts, we are of the considered opinion that the matter needs to be remitted to the file of ld.CIT(A) to give the assessee, an opportunity of being heard and thereafter, decide the appeal as per law by a speaking order. Ld. Counsel of the assessee agreed with the above proposition and undertook to cooperate with ld. CIT(A) when the matter is remanded 7. In the result, this appeal by the assessee stands allowed for statistical purposes. Pronounced in the open court on 13.04.2022. Sd/- Sd/- (RAHUL CHAUDHARY) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUN TANT MEMBER Mumbai; Dated : 13 /04/2022 Thirumalesh, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent ITA No.5959/Mum/2019 4 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) ITAT, Mumbai