RUPESH P MEHTA, MUMBAI V. ACIT 23(3), MUMBAI

ITA 6011/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2474 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 26-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: MALAY SHAH
• Keywords: Salary income
• Section: 10; 2

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ./ I .T.A. NO. 6011 /MUM/201 4 ( / ASSESSMENT YEAR S : 200 9 - 10 ) MR. RUPESH P MEHTA, 5, KAMLANAND SOCIETY, M G ROAD, MULUND (W), MUMBAI - 400080 / VS. ASST. COMMISSIONER OF INCOME TAX , CIRCLE 23(3), C - 10. 4 TH FLOOR, PRATHASHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051 ./ PA N : AGHPM3035C / ASSESSEE BY SHRI MALAY SHAH / REVENUE BY SHRI B S BIST / DATE OF HEARING : 25.10. 2016 / DATE OF PRONOUNCEMENT : 25.10. 2016 / O R D E R PER RAJESH KUMAR , A M T HIS IS AN APPEAL FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 27.6.2014 PASSED BY THE LD.CIT(A) - 7, MUMBAI RESTORING THE MATTER TO THE FILE FOR FRESH ASSESSMENT . THE APPEAL PERTAINS TO THE ASSESSMENT YEAR 200 9 - 10 . 2. THE ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL IN GROUND NO.1 IS AGAINST RESTORING THE MATTER TO THE FILE OF THE AO BY CIT(A) FOR MAKING FRESH ASSESSMENT AFTER NECESSARY VERIFICATION WHICH WAS IN VIOLATION OF THE PROVISIONS OF SECTION 2 ITA NO. 6011 /M/2014 251 OF THE INCOME TAX ACT, 1961 AS THE RESTORATION IS NOT PERMITTED THE ACT . THE LD.AR SUBMITTED BEFORE US THAT THE LD. CIT(A) HAS GROSSLY ERRED IN VIOLATION OF PROVISION OF SECTION 251 OF THE ACT BY SETTING ASIDE THE ASSESSMENT ORDER AND RESTOR ING THE SAM E TO THE FILE OF THE AO FOR FRESH ASSESSMENT AFTER NECESSARY VERIFICATION. T HEREFORE THE LD.AR ARGUED BEFORE US THAT ORDER OF LD. CIT(A) BE SET ASIDE AND LD CIT(A) BE DIRECTED TO ADJUDICATE THE MATTER ON THE FACTS AND AS PER LAW. 3 . LD. DR HAS VERY FAIRL Y AGREED WITH THE SUBMISSIONS OF THE LD.AR. 4 . AFTER CONSIDERING THE FACTS BEFORE US, WE FIND THAT THE LD. CIT(A) RESTORED THE MATTER BACK TO THE FILE OF THE AO TO DECIDE THE ISSUE AND MAKE ASSESSMENT AFRESH MEANING THEREBY THAT THE MATTER HAS BEEN SET A SIDE WHICH IS NOT PERMISSIBLE IN LAW IN TERMS OF THE PROVISIONS OF SECTION 251 OF THE ACT . FOR THE SAKE OF CLARITY WE REPRODUCE RELEVANT EXTRACT OF THE CIT(A) ORDER AS UNDER : REASONS FOR THE DECISION 5. I HAVE CAREFULLY CONSIDERED THE MATTER. THE AO I S DIRECTED TO VERIFY THE FOLLOWING: (I) THE CLAIM OF THE APPELLANT THAT FBT OF RS. 10 ,25, 000 / - WAS FIRST SHOWN AS INCOME BY ADDING IT TO SALARY INCOME AND THEN IT WAS ALLOWED AS PERQUISITE. [II] THE DETAILS OF OCCUPANCY / ALLOTMENT/ COMPLETION OF THE PROPERTY WITH REGARD TO THE CLAIM OF DEDUCTION OF RS.4,93,208/ - MADE U/ S. 24(B) OF THE ACT. 3 ITA NO. 6011 /M/2014 THE APPELLANT WOULD PRODUCE BEFORE THE AO THE REQUIRED DETAILS ON THE ABOVE. AFTER DUE VERIFICATION THE AO WOULD TAKE REMEDIAL MEASURES, IF ANY, AS PER THE PROV ISIONS OF THE ACT. 5 . AFTER HEARING THE LD.AR, WE ARE IN AGREEMENT WIH THE LD. AR THAT TH E LD. CIT(A) HAS WRONGLY SET ASIDE THE MATTER OF THE FILE OF THE AO WHICH IS NOT PERMISSIBLE UNDER THE ACT AND WE ARE , THEREFORE, INCLINED TO SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE APPEAL ON THE FACTS AND AS PER LAW. 6 . IN THE RESULT, BOTH THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COUR T ON 25 . 10 .2016 . SD SD ( MAHAVIR SINGH ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 25. 10. 2016 SR.PS:SRL: / COPY OF THE ORDER FO RWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI