RUJUTA N. SHAH, MUMBAI V. ITO 19(2)(2), MUMBAI

ITA 6354/MUM/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59709 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 05-01-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 26-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Assessee Lawyers: DHIRENDRA M SHAH
• Keywords: Depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D, MUMBAI BEFORE HONBLE PRESIDENT SHRI G.E.VEERABHADRAPPA AND SHRI D.K.AGARWAL (JM) ITA NO.6354/MUM/2010 (ASSESSMENT YEAR: 2006-07) RUJUTA N.SHAH, FLAT NO.52, BRINDABAN, 65, LINKING ROAD, SANTACRUZ(W), MUMBAI-400054 PAN : AVFPS3065B INCOME TAX OFFICER 19(2)(2), PIRAMAL CHAMBERS, OPP.LALBAUG POST OFFICE, 3 RD FLOOR, MUMBAI-400012. APPELLANT V/S RESPONDENT DATE OF HEARING : 5.1.2012 DATE OF PRONOUNCEMENT : 18.1.2012 APPELLANT BY : SHRI DHIRENDRA M.S HAH RESPONDENT BY : SHRI C.G.K.NAIR O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 15.6.2010 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2006-07. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE AN INDIVIDUAL DERIVES INCOME FROM HOUSE PROPERTY, BUSINESS, CAPITAL GAINS AND INCOME FROM OTHER SOURCES, FILED RETURN DECLARING TOTAL INCOME AT RS.5,72,052/-. HOWEVER, THE ASSESSMENT WAS ITA NO.6354/MUM/2010 (ASSESSMENT YEAR: 2006-07) 2 COMPLETED AFTER MAKING VARIOUS DISALLOWANCES AND ADDITIONS AT AN INCOME OF RS.8,26,028/-VIDE ORDER DATED 30.12.2008 PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 3. ON APPEAL, BEFORE THE LD. CIT(A), THERE WAS NO COMPLIANCE BY THE ASSESSEE, THEREFORE, THE LD. CIT( A) PASSED EX-PARTE ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND DISMISSED THE ASSESSEES APPEAL. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US TAKING FOLLOWIN G GROUNDS OF APPEAL : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN PASSING EX-PARTE ORDER AND ERRED IN OBSERVING THAT, THERE WAS NO COMPLIANCE FROM THE SIDE OF THE APPELLANT AND ON PRESUMPTION PASSED THE APPELLATE ORDER WHICH BE CANCELLED. 2. (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER ERRED IN NOT ALLOWING DEDUCTION OF RS.86,985/- IN COMPUTING THE PROPERTY INCOME WHICH SHOULD BE ALLOWED IN FULL. (B) THE ASSESSING OFFICER FAILED TO APPRECIATE THAT , RS.86,985/- ARE THE SOCIETY CHARGES WHICH IS TO BE ALLOW IN COMPUTING THE PROPERTY INCOME. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE EASE, THE ASSESSING OFFICER ERRED IN MAKING ADDITION OF RS.76,472/- BY ESTIMATING PROPERTY INCOME IN RESPECT OF SHOP AT RS.1,09,246/- WHICH ITA NO.6354/MUM/2010 (ASSESSMENT YEAR: 2006-07) 3 IS ARBITRARY AND CONTRARY TO THE FACTS ON RECORD AN D SUCH ESTIMATE BE MADE AS INCOME FROM HOUSE PROPERTY BE DELETED AND ADDITION MADE OF RS.76,472/- BE DELETED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER ERRED IN DISALLOWING 1/5 TH OF MOTOR CAR DEPRECIATION OF RS. 15,055/-, INTEREST ON CAR LOAN RS.3,650/- WHICH ADDITION MADE BE DELETED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER ERRED IN MAKING ADDITION OF RS.4,000/- WHICH BE DELETED. 5. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT NO PROPER AND DUE OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE BY THE LD. CIT(A ) INASMUCH AS, THE LD. CIT(A) HAS ALSO NOT CONSIDERED THE PAPER BOOK FILED BY THE ASSESSEE, WHILE DECIDIN G THE APPEAL EX-PARTE, THEREFORE, IN THE INTEREST OF JUSTICE THE ORDER PASSED BY THE LD. CIT(A) BE SET ASIDE TO HIS FILE TO DECIDE THE SAME AFRESH WHICH WAS NOT OBJECTED TO BY THE LD. DR. 6. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSING THE MATERIAL AVAILABLE O N RECORD, WE OBSERVE THAT NO DOUBT, THE LD. CIT(A) HA S PROVIDED VARIOUS OPPORTUNITIES TO THE ASSESSEE. HOWEVER, HE HAS PASSED EX-PARTE ORDER AS ON THE LA ST DATE OF HEARING I.E.10.6.2010, NOBODY FROM THE ITA NO.6354/MUM/2010 (ASSESSMENT YEAR: 2006-07) 4 ASSESSEE APPEARED. IN THE ABSENCE OF ANY MATERIAL TO SHOW THAT THE LAST DATE OF HEARING WAS NOTED BY TH E ASSESSEE OR HIS COUNSEL AND KEEPING IN VIEW THAT THE LD. CIT(A) WHILE DECIDING THE APPEAL HAS NOT CONSIDERED THE VARIOUS DOCUMENTS CONTAINED IN THE PAPER BOOK FILED BY THE ASSESSEE BEFORE HIM, THEREFORE, IN THE INTERESTS OF JUSTICE, WE CONSIDER IT FAIR AND REASONABLE THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE LD. CIT(A) AND ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) TO HIS FILE TO D ECIDE THE ENTIRE APPEAL OF THE ASSESSEE AFRESH AND ACCORD ING TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE PARTLY ALLOWED FOR STATISTIC AL PURPOSES. 7. IN THE RESULT, THE ASSESSEES APPEAL STANDS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JAN.,2012. SD SD (G.E.VEERABHADRAPPA) (D.K.AGARWAL) PRESIDENT JUDICIAL MEMBER MUMBAI, DATED 18TH JANUARY,2012. ITA NO.6354/MUM/2010 (ASSESSMENT YEAR: 2006-07) 5 SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI