SHRI SANJIV GARG, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-12(2), MUMBAI

ITA 6178/MUM/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8724 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 09-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , G BENCH MUMBAI BEFORE SHRI PRAMOD KUMAR, VICE- PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 6178/MUM/2017 FOR ASSESSMENT YEARS: 2010-11 SHRI SANJIV GARG 1704-D WING, ASHOKA GARDEN, TOKARSEE JIVRAJ ROAD, SEWREE, MUMBAI-400015. PAN : AABCD7169H VS DCIT CIRCLE-12(2 ), 2 ND FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI-400020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GAURAV KABRA (AR) RESPONDENT BY : SHRI DHARM VEER SINGH (DR) DATE OF HEARING : 11/09/2019 DATE OF PRONOUNCEMENT: 12/09/2019 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-28, [CIT(A)], MUMBAI DATED 12. 06.2017 FOR ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL: 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN PASSING THE EX-PARTE ORDER WITH OUT PROVIDING OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LE ARNED ASSESSING OFFICER IN MAKING AN ADDITION OF RS.26,55,435/- AS ALLEGED SHO RT TERM CAPITAL GAIN, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LE ARNED ASSESSING OFFICER IN TREATING THE LONG TERM CAPITAL GAIN ON ACCOUNT OF S ALE OF FLAT AS ALLEGED SHORT TERM CAPITAL GAIN, WITHOUT CONSIDERING THE FACTS &: CIRCUMSTANCES OF THE CASE. 4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LE ARNED ASSESSING OFFICER IN ITA NO. 6178 MUM 2017-SHRI SANJIV GARG 2 NOT PROVIDING THE BENEFIT OF INDEXATION OF THE COST OF ACQUISITION AND DEDUCTION U/S.54 OF THE INCOME TAX ACT, TO THE APPELLANT BY T REATING THE CAPITAL GAIN ON ACCOUNT OF SALE OF PROPERTY AS ALLEGED SHORT TERM C APITAL GAIN, WITHOUT CONSIDERING THE FACTS &: CIRCUMSTANCES OF THE CASE. 5) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LE ARNED ASSESSING OFFICER IN MAKING AN ADDITION OF RS.1,34,050/- IN INCOME FROM HOUSE PROPERTY AS ALLEGED RENT RECEIVED ON FLAT, WITHOUT CONSIDERING THE FACT S AND CIRCUMSTANCES OF THE CASE. 6) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LE ARNED ASSESSING OFFICE IN DISALLOWING THE CLAIM OF INTEREST PAID ON HOUSING L OAN OF RS.12,629/-, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE . 2. AT THE OUTSET OF HEARING, THE LD. AR OF THE ASSESSE E SUBMITS THAT NOTICE OF HERING ISSUED BY LD. CIT(A) WAS NOT RECEIVED BY ASS ESSEE DUE TO CHANGE OF ADDRESS, THEREFORE, NEITHER THE ASSESSEE NOR HIS RE PRESENTATIVE COULD APPEAR BEFORE THE LD. CIT(A) TO SUBSTANTIATE THE GROUNDS O F APPEAL. THE LD. CIT(A) PASSED THE EX-PARTE ORDER DATED 12.06.2017. ON MERI T, THE LD. AR OF THE ASSESSEE SUBMITS THAT ADDITION WAS MADE BY ASSESSIN G OFFICER BY TREATING LONG TERM CAPITAL GAIN AS SHORT TERM CAPITAL GAIN. THE ASSESSING OFFICER TREATED THE DATE OF ACQUISITION OF ASSETS FROM THE DATE OF REGISTRATION, THOUGH THE ASSESSEE CLAIMED IT FROM THE DATE OF BOOKING. T HE LD. AR SUBMITS THAT HE HAS GOOD CASE ON MERIT AND LIKELY TO SUCCEED, IF TH E ASSESSEE IS GIVEN OPPORTUNITY OF HEARING ON MERIT. THE LD. AR OF THE ASSESSEE PRAYED THAT THE GROUNDS OF APPEAL RAISED BY ASSESSEE MAY BE RESTORE D TO THE FILE OF LD. CIT(A) FOR ADJUDICATION OF THE ISSUES ON MERIT. 3. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF LOWER AUTHORITIES. HOWEVER, ON THE SUBMISSION OF ASSESSEE THAT MATTER MAY BE ITA NO. 6178 MUM 2017-SHRI SANJIV GARG 3 RESTORED TO THE FILE OF LD. CIT(A) FOR ADJUDICATION OF ISSUES ON MERIT. THE LD. DR FAIRLY AGREED. 4. WE HAVE CONSIDERED THE SUBMISSION OF LD. REPRESENTA TIVES OF THE PARTIES AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HA VE NOTED THAT THE ASSESSEE IN COLUMN-10 OF FORM NO.36 (APPEAL FORM FO R FILING APPEAL BEFORE TRIBUNAL), HAS MENTIONED HIS ADDRESS AT 1704- D WIN G, ASHOKA GARDEN, TOKARSEE, JIVRAJ ROAD, SEWREE, MUMBAI-15. HOWEVER, THE ADDRESS FURNISHED BY ASSESSEE BEFORE ASSESSING OFFICER AND LD. CIT(A) WAS OF 10-C, SAGAR SANGEET, 58, COLABA ROAD, MUMBAI. INSTEAD OF CONSID ERING THE MERIT OF THE CASE, WE FIND THAT THE ADDRESS OF ASSESSEE WAS CHAN GED AND THE LD. CIT(A) PASSED EX-PARTE ORDER. THEREFORE, CONSIDERING THE S UBMISSION OF LD. AR OF THE ASSESSEE AND TOTALITY OF FACT, THE GROUNDS OF A PPEAL RAISED BY ASSESSEE ARE RESTORED BACK TO THE FILE OF LD. CIT(A) TO DECIDE T HE ISSUES AFRESH. NEEDLESS TO ORDER THAT BEFORE DECIDING HE ISSUE, THE LD. CIT (A) SHALL GRANT FAIR AND PROPERTY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRE CTED TO FURNISH ALL THE NECESSARY EVIDENCES AND SUBMISSION BEFORE THE LD. C IT(A) AND NOT TO SEEK ADJOURNMENT WITHOUT ANY VALID REASONS. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT O N THIS 12/09/2019. SD/- SD/- ( PRAMOD KUMAR) (PAWAN SINGH) VICE-PRESIDENT JUDICIAL MEMBER MUMBAI, DATE: 12.09.2019 SK COPY FORWARDED TO: ITA NO. 6178 MUM 2017-SHRI SANJIV GARG 4 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT BY ORDER ASSISTANT REGISTRAR IT AT MUMBAI