ASHOK KUMAR D. JAIN, MUMBAI V. INCOME TAX OFFICER-9(2)(1), MUMBAI

ITA 5965/MUM/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0379 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 21-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 143(3); 14A

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ I.T.A. NO. 5965/MUM/2017 ( / ASSESSMENT YEAR: 2006 - 07 ) SHRI ASHOK KUMAR D. JAIN 11, UNNAT NAGAR CHS, MG ROAD, GOREGAON (W), MUMBAI - 400 062 / VS. ITO - 9(2)(1), AAYKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN/GIR NO. AACPJ 7464 P ( / APPELL ANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI PRATIK JAIN / RESPONDENT BY : MS. N. HEMALATHA / DATE OF HEARING : 16.11.2017 / DATE OF PRONOUNCEMENT : 05.02 .2018 / O R D E R PER S HAMIM YAHYA , A. M.: THIS A PPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE O RDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 20.06.2017 AND PERTAINS TO THE A SSESSMENT YEAR 2006 - 07. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, APPELLANT WAS PREVENTED BY REASONABLE CAUSE IN NOT ATTENDING THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) - 20, MUMBAI, AND THUS THE EX - PARTE ORDER PASSED BY THE LD. CIT(A) DESERVES TO BE SET ASIDE. 2 ITA NO. 5965/MUM/2017 (A.Y. 2006 - 07) SHRI ASHOK KUMAR D. JAIN VS. ITO 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW; LD.CIT(A) - 20, MUMBAI ERRED IN DISMISSING APPELLANT'S CASE IN LIMINE & WITHOUT CONSIDERING THE MERIT OF THE CASE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) - 20, MUMBAI GROSS LY ERRED IN CONFIRMING ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.SL47. 4. THAT THE LD. CIT(A) - 20 MUMBAI ERRED IN CONFIRMING THE DISALLOWANCE UNDER SECTION 14A R.W.R 8D AMOUNTING TO RS. 17,108/ - MADE BY THE ASSESSING OFFICER. 5. THAT THE LD. CIT(A) - 20, MUMBAI ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN TREATING THE SHORT TERM CAPITAL GAINS OF RS. 13,03,198/ - AS INCOME FROM OTHER SOURCES. 6. THAT THE LD. CIT(A) - 20, MUMBAI ERRED IN CONFIRMING DISALLOWANCE OF RS. 26,064 MADE BY LD. AO ON ACCOUNT OF EXPENDITURE FOR EARNING SHORT TERM CAPITAL GAIN. 3. AT THE OUTSET, I NOTE THAT T HE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS DISMISSED THE APPEAL FOR NON - PROSECUTION. 4 . UPON HEARING BOTH THE COUNSEL AND PERUSED THE RECORDS , I FIND TH AT IT IS INCUMBENT UPON THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO PASS A N ORDER ON THE MERITS OF THE CASE AND NOT DISMISSED THE APPEAL FOR NON - PROSECUTION. 5 . FOR THIS PROPOSITION , I PLACE RELIANCE UPON FOLLOWING CASE LAWS : 1. CIT VS PREMKUMAR ARJ UNDAS LUTHRA (HUF) (2017) 154 DTK (BOM)302 2. CIT VS S CHENNIAPPA MUDALIAR(1969)74 ITR 1(SC) 6 . ACCORDINGLY , IN THE INTEREST OF JUSTICE I REMIT THE ISSUE RAISED IN THE APPEAL TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) I S DIRECTED TO CONSIDER THE ISSUE AFRESH AND PASS AN ORDER ON THE MERITS OF THE CASE AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 7 . LEARNED COUNSEL OF THE ASSESSEE HAS ALSO GIVEN UNDERTAKING THAT HE SHALL APPE AR BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) SUO MOTTO WITHIN TWO MONTHS OF THIS ORDER TO CANVAS THE APPEAL. 3 ITA NO. 5965/MUM/2017 (A.Y. 2006 - 07) SHRI ASHOK KUMAR D. JAIN VS. ITO 8 . IN THE RESULT , THIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05.02.2018 SD/ - (S H AMIM 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