KANJI DEVA PATEL, NAVI MUMBAI V. ITO 23(2)(4), MUMBAI

ITA 6071/MUM/2011

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8156 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 07-03-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 02-09-2011
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Keywords: Business income; Opportunity of being heard
• Section: 148; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.6071/MUM./2011 ( ASSESSMENT YEAR :2002 - 03 ) KANJI DEVA PATEL, B - 1003, 10 TH FLOOR, NEEL SIDDHI TOWER, SEC - 12 VASHI, NAVI MUMBAI 400 705 PAN AABPP5092N . APPELLANT V/S ITO 23(2)(4), MUMBAI. . RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI. RAJESH KUMAR YADAV DATE OF HEARING - 07.03.2017 DATE OF ORDER 16.03.2017 O R D E R PER: SHAMIM YAHYA THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LD. CIT - A DATED. 06.06.2011 AND PERTAINS TO ASSESSMENT YEAR 2002 - 03. 2. THE GROUNDS OF APPEAL READ AS UNDER: GROUNDS OF APPEAL BEFORE ITAT: - 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A.O. ERRED IN REASSESSING TOTAL INCOME OF RS. 1054241/ - AS AGAINST ASSESSED INCOME OF RS. 956643/ - 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. A.O. ERRED IN REOPENI NG THE CASE U/S 148 WITHOUT ADEQUATE REASON. 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED AO. ERRED IN NOT ALLOWING INTEREST OF RS.480001 - AGAINST BUSINESS INCOME AND OR INCOME FROM HOUSE PROPERTY. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED AC. ERRED IN NOT ALLOWING SOCIETY CHARGES OF RS.5464/ - 5. THE LEARNED COMMISSIONER OF INCOME TAX(A) DIDN'T DECIDE GROUND NO 2 & 4 AND ALSO CONFIRMED GROUND NO 3 WITHOUT GIVING ANY REASON 6. THAT INTEREST U/S 234 IS WRONG LY LEVIED & PENALTY IS WRONGLY INITIATED U/S 271[1] [C]. (B) RELIEF PRAYED: THE APPELLANT THEREFORE PRAYS FOLLOWS. 1. TO ALLOW SOCIETY CHARGES OF RS.5464/ - 2. TO QUASH ORDER PASSED U/S 348. 3. TO ALLOW INTEREST OF RS.48000/ - AGAINST BUSINESS INCOME/INCOME FROM HOUSE PROPERTY. 4. TO DELETE THE DISALLOWANCE INTEREST U1S 234 & INITIATION OF PENALTY U/S 271(1)(C) (C) GENERAL: - THE APPELLANT RESERVE RIGHTS TO ADD ALTER OR DELETE ANY PORTION OF THIS APPEAL BEFORE ITS CONCLUSION. THIS APPEAL IS FILED IN TIME AND MAY PLEASE BE ALLOWED IN FULL. 3. WE HAVE THE LD. DR. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER , IN OUR CONSIDERED OPINION THE APPEAL CAN BE DISPOSED OF BY HEARING THE LD. DR AND PERUSING THE RECORDS. 4. WE FIND THAT IN THIS CASE THE GROUND NO. 2 R EPRODUCED ABOVE ASSESSEE HAS CHALLENGED THE REOPENING. IT HAS BEEN URGED THAT AO HAS ERRED IN REOPENING THE CASE U/S. 148 WITHOUT ADEQUATE REASON. WE FIND THAT LD. CIT - A IN HIS APPEAL ORDER HAS NOT ADJUDIC ATED UPON THIS ISSUE RAISED. SU CH A GROUND WAS DULY RAISED BEFORE HIM. IN THE SE CIRCUMSTANCES IN OUR CONSIDERED OPINIO N THIS ISSUE NEEDS TO BE REMITTED TO THE FILE OF THE LD. CIT - A, FOR PASSING A SPEAKING ORDER ON THIS ISSUE NOT ADJUDICATED BY HIM. 5. ACCORDINGLY, THE GROUND NO. 2 RELATING TO ASSESSEES CH ALLENGE OF THE REOPENING IS REMITTED TO THE FILE OF LD. CIT - A. THE LD. CIT - A SHALL PASS A SPEAKING ORDER ON THIS ISSUE AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. IN THE RESULT THIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.03.2017 RAVISH SOOD SHAMIM YAHIYA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 16.03.2017 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER NISHANT VERMA SR. PRIVATE SECRETARY (DY./ASSTT.REGISTRAR) ITAT, MUMBAI