DR. RASHMIRAJ KARJODKAR, MUMBAI V. ITO 11(3)(2), MUMBAI

ITA 6056/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101171 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 03-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 04-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA VIJAY
• Assessee Lawyers: SANJUKTA CHOW DHURY
• Keywords: Principle of natural justice
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER. ITA. NO. 6056/MUM/2012 (ASSESSMENT YEAR:2008-09) DR. RASHMIRAJ KARJODKAR, 2A/1104, RAHEJA CLASSIC, NEW LINK ROAD, ANDHERI (W), MUMBAI - 400053 APPELLANT VS. INCOME TAX OFFICER 11(3)-2, MUMBAI RESPONDENT PAN: AHCPK9692B /BY APPELLANT : MS. SANJUKTA CHOWDHURY, A.R. /BY RESPONDENT :SHRI CHANDRA VIJAY, D.R. /DATE OF HEARING : 22.09.2015 /DATE OF PRONOUNCEMENT : 23.09.2015 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-2, MUMBAI, DAT ED 06.07.2012 FOR A.Y. 2008-09 ON FOLLOWING GROUNDS: ITA NO.6056/MUM/12 A.Y. 07-08 [DR. RASHMIRAJ KARJOD KAR VS. ITO] PAGE 2 1. FA I LURE OF NATURAL JUSTICE - THE ORDER BEING PERVERSE MAY BE QUASHED THE LD . CIT(A) ERRED IN NOT GRANTING SUFFICIENT OPPORTUNITY TO THE APPE L LANT AND THE I MPUGNED ORDER SUFFERS FROM THE FAILURE OF NATURAL JUST I CE , THEREFORE , THE SAME MAY BE QUASHED OR SET ASIDE TO THE FILE OF ASSESSING OFFICER FOR BE I NG PERVERSE. 2. MERITS : THE L D . CIT(A) ERRED IN CONFIRMING THE ORDER OF THE ASSESS I NG OFFICER W I THOUT C ONS I DERING T HE J UST I F I CATION OF THE FO LL OW I NG I TEMS OF D I SAL L OWANCES / ADDIT I ONS N OTW I THSTAND I NG THE FACT THAT THE APPELLANT HAD DULY ATTENDED BEFORE THE L OWE R AUT H OR I T I ES , THEREFORE , THE ADDITIONS / DISALLOWANCES ARE NOT J USTIFIED . A) LONG TERM CAPITAL GAIN TREATED AS SHORT TERM CAPITAL GAIN AND DEN I AL OF I NDEXATION BENEFIT AND CLAIM OF EXEMPT I ON U/S. 54F - RS. 94,91,735/- B) ADD I T I ON ON ACCOUNT OF L TCG WITHOUT CONS I DER I NG COST OF ACQUIS I TION , COST OF I MPROVEMENT AND COST OF INDEXAT I ON - RS. 1,39,80,449/- C) AD-HOC@20 % DISALLOWANCE OF ROUT I NE EXPENSES : MOTOR CAR EXPENSES - 1,09,328/- TELEPHONE EXPENSES - 3,386/- REPAIR AND MAINTENANCE EXPENSES - 4,120/- 3. LEVY OF PENAL INTERESTS TH E APPE L LANT , ON MERITS , DEN I ES H I S L I ABILITY TO PENA L INTE R EST . 2. WE FIND THAT CIT(A) HAS DISMISSED THE APPEAL BY APPLYING THE RATIO OF ITAT IN CASE OF CIT VS. MULTIPLAN (IND IA) PVT. LTD (38 ITD 320)(DEL) AND HONBLE MADHYA PRADESH HIGH COURT IN THE ITA NO.6056/MUM/12 A.Y. 07-08 [DR. RASHMIRAJ KARJOD KAR VS. ITO] PAGE 3 CASE OF LATE TUKOJIRAO HOLKAR VS. CWT (223 ITR 480) (MP). WE FIND THAT CIT(A) HAS DISMISSED THE APPEAL OF ASSESS EE EX PARTE BY APPLYING MULTIPLAN (INDIA) PVT. LTD. (SUPRA) WHI CH IS NOT JUSTIFIED. CIT(A) SHOULD PASS SPEAKING ORDER WHICH IS MISSING IN THIS CASE. SO, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO HIM WITH THE DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEA RING. ASSESSEE IS ALSO DIRECTED TO CO-OPERATE IN THE PROC EEDING AND APPEAR BEFORE HIM ON 21.01.2016 AS SUGGESTED BY LEA RNED DEPARTMENTAL REPRESENTATIVE. SINCE, WE ARE RESTORI NG THE MATTER ON PRELIMINARY ISSUE, WE ARE REFRAINING TO C OMMENT ON THE MERIT OF ISSUE AT HAND. 3. AS A RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF SEPTEMBER, 2015. SD/- SD- ( ASHWANI TANEJA ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 23/09/2015 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE !# / ASSESSEE $ %&%'( ) / CONCERNED CIT ITA NO.6056/MUM/12 A.Y. 07-08 [DR. RASHMIRAJ KARJOD KAR VS. ITO] PAGE 4 * )+ / CIT (A) ,-./00'(1 '( 1 2 %& / DR, ITAT, MUMBAI 3/4567 / GUARD FILE. BY ORDER / #8 1 9: ;% 1 '( 12 %&<