RAMESH KRISHNA BHOIR, THANE V. ITO WD 3(2), THANE

ITA 6737/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7783 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 17-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHADR
• Assessee Lawyers: SATISH KASHINATH KADAM
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice
• Section: 142(1); 148; 132

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.6737/MUM/2016 ASSESSMENT YEAR: 2007-08 RAMESH KRISHNA BHOIR, BHOIR HOUSE, BHOIR LANE, NEAR RATION SHOP, BALKUM NO.1, THANE-WEST-400608 / VS. INCOME TAX OFFICER, WARD-3(2), ASHAR IT PARK, THANE / ASSESSEE / REVENUE P.A. NO. BBBPB0680C $ % & / ASSESSEE BY SHRI SATISH KASHINATH KADAM $ % & / REVENUE BY MS. N. HEMALATHA-DR / DATE OF HEARING 19/12/2017 & / DATE OF ORDER: 19/12/2017 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 19/08/2016 OF THE LD. FIRST APPELLATE AUTHORITY, TH ANE, ON THE GROUND THAT THE PRINCIPLE OF NATURAL JUSTICE HA S BEEN ITA NO.6737/MUM/2016 RAMESH KRISHNA BHOIR 2 VIOLATED AS PROPER OPPORTUNITY OF BEING HEARD WAS N OT PROVIDED TO THE ASSESSEE. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI SATISH K. KADAM, CONTENDED THAT THE NOTICES IS SUED TO THE ASSESSEE WERE NEVER SERVED UPON AND THE ASSESSE E IS IN A POSITION TO SUBSTANTIATE HIS CLAIM. ON THE OTHER HAND, MS. N. HEMALATHA, LD. DR, CONTENDED THAT THE NOTICES WE RE SERVED UPON THE ASSESSEE. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S, IN BRIEF, ARE THAT A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS TAKEN IN THE CASE OF GALA LIFESTYLE SIDDHI GROUP OF BUILDERS AND DEVELOPERS ON 28/08/2008, WHEREIN, IT CAME TO T HE NOTICE OF THE DEPARTMENT THAT THE ASSESSEE SHRI RAM ESH K. BHOIR AND ORS. SOLD THEIR ANCESTRAL LAND TO THE ABO VE GROUP FOR A CONSIDERATION OF RS.1,19,04,984/- AND NEITHER THE ASSESSEE NOR THE OTHER FAMILY MEMBERS FILED THE RET URN OF INCOME. THUS, THE CAPITAL GAINS TAX WAS NOT PAID. T HE CASE OF THE ASSESSEE WAS REOPENED WITH THE ISSUANCE OF N OTICE U/S 148 OF THE ACT. THERE WAS A CHANGE IN THE CHAR GE, ITA NO.6737/MUM/2016 RAMESH KRISHNA BHOIR 3 THEREFORE, NOTICE U/S 143(2) AND 142(1) WERE ISSUED TO THE ASSESSEE. AS PER THE REVENUE, SUCH NOTICES WERE ISS UED BUT AS PER THE ASSESSEE, SUCH NOTICES WERE NEVER SERVED UPON THE ASSESSEE. THE STATEMENT OF THE ASSESSEE WAS REC ORDED ON 13/10/2008 AND AS PER REPLY TO QUESTION NO.7, IT WA S TENDERED THAT HE ALONG WITH THE FAMILY MEMBERS RECE IVED RS.22,05,522/- FROM M/S SIDDHI ENTERPRISES AND RS.96,99,465/- FROM M/S DOSTI ENTERPRISES. THE LD. ASSESSING OFFICER COMPUTED THE LONG TERM CAPITAL GA IN AT RS.31,81,658/- AND THE SHARE OF THE ASSESSEE (BEING ONE FOURTH SHARE IN THE PROPERTY), COMES TO RS.7,95,414 /-. THE ASSESSEE HAD OFFERED RS.1,03,425/- ONLY AS LTCG ON THE SALE CONSIDERATION, THEREFORE, THE AMOUNT OF RS.6,9 1,989/- WAS ADDED BACK TO THE INCOME OF THE ASSESSEE. WITHO UT GOING INTO MUCH DELIBERATION, I AM OF THE VIEW THAT AS PER ARTICLE 265 OF CONSTITUTION OF INDIA, ONLY DUE TAXE S HAS TO BE LEVIED/COLLECTED, THEREFORE, CONSIDERING THE TOTALI TY OF FACTS, THIS APPEAL IS SENT TO THE FILE OF THE LD. ASSESSIN G OFFICER TO DECIDE THE CASE OF THE ASSESSEE AFRESH IN ACCORDANC E WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEA RD. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. ITA NO.6737/MUM/2016 RAMESH KRISHNA BHOIR 4 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 19/12/2017. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 19/12/2017 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * / THE CIT, MUMBAI. 4. ) ) * / CIT- , MUMBAI 5. +,- ' , ) '#$ ' / , / DR, ITAT, MUMBAI 6. -0 1$ / GUARD FILE. & / BY ORDER, (+# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI