SHIVCHARAN J AGRAWAL, MUMBAI V. ITO WD 11(3)(3), MUMBAI

ITA 6881/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8801 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 1990-1991
• Appeal Filed On: 12-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Assessee Lawyers: BABOOLAL OSTWALAR
• Section: 143(3); 234B; 144; 154; 2

Judgement Text

, B BB B INCOME TAX APPELLATE TRIBUNAL,MUMBAI - E BENCH , IOU IOUIOU IOU , BEFORE S/SH. RAJENDRA, ACCOUNTANT MEMBER & PAWAN SINGH, JUDICIAL MEMBER /.ITA NO.6881/MUM/2014, /ASSESSMENT YEAR-1990-91 SHIVCHARAN J. AGRAWAL B-607, LOKTIRH, MARWE ROAD, MALAD (WEST), MUMBAI-400054 PAN: AABPA7606H VS. ITO-WARD-(3)(3), ROOM NO. 448, 4 TH FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI-400020. ( / APPELLANT) ( / RESPONDENT) ! / ASSESSEE BY : SHRI BABOOLAL OSTWAL(AR) / REVENUE BY : MS. BEENA SANTOSH (DR) ' / DATE OF HEARING : 11 -01-2017 ! ( / DATE OF PRONOUNCEMENT : 20. 01-2017 , 1961 ' 254(1) #$ ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER PAWAN SINGH, J.M. IOU IOUIOU IOU : 1. THE PRESENT APPEAL BY ASSESSEE U/S 253 OF THE INCOM E-TAX ACT IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-20, MUM BAI [FOR SHORT THE CIT(A)] DATED 24.09.2014 FOR ASSESSMENT YEAR(AY) 1990-91. THE ASS ESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES, THE LD. CIT(A) I S NOT JUSTIFIED IN CONFIRMING THE ORDER OF RESPONDENT PASSED IN CONTRAVENTION OF HIS OWN DIREC TION AND THUS THE SAID ORDER IS BAD IN LAW AND ACCORDINGLY LIABLE TO BE QUASHED. 2. ON THE FACTS AND CIRCUMSTANCES, THE LD. CIT(A) I S NOT JUSTIFIED IN CONFIRMING THE COMPUTATION OF INTEREST U/S 234B OF THE IT ACT AND THUS LIABLE TO BE DELETED. 2. THE BRIEF FACTS OF THE CASE ARE THAT FOR RELEVANT A Y THE ASSESSMENT WAS COMPLETED ON 16.03.1993 U/S 144 ASSESSING THE TOTAL INCOME OF RS . 2,50,000/-. THIS ORDER WAS SET-ASIDE BY THE LD. CIT(A) ON 30.03.1994. CONSEQUENT UPON THE ORDER U/S 143(3) R.W.S. 250 WAS PASSED ON 27.03.1996 DETERMINING THE TOTAL INCOME OF RS. 3 8,91,500/-. THE ORDER WAS AND AGAIN SET-ASIDE BY THE LD. CIT(A) ON 31.03.1997 BY GIVING CERTAIN DIRECTION AND ACCORDINGLY ORDER WAS PASSED PROTECTIVELY ON 25.03.1999 AT RS. 29,87, 606/-. ON APPEAL BEFORE THE ITAT, THE ADDITION WAS REDUCED BY GIVING RELIEF OF RS. 28,47, 500/-. CONSEQUENT UPON THE ORDER OF ITAT, THE ASSESSING OFFICER (AO) PASSED ORDER DETER MINING THE INCOME AT RS. 1,40,606/-. THIS ORDER WAS RECTIFIED BY GIVING CREDIT OF RS. 1 ,00,000/- PAID ON 23.12.2005 PURSUANT TO THE TRIBUNAL STAY ORDER AND RE-DETERMINED THE INTER EST U/S 234A, 234B AND 220(2) WITHOUT DISTURBING TAX LIABILITY INCLUDING SURCHARGE. THE A SSESSEE FILED AN APPLICATION U/S 154 FOR 2 ITA NO. 6881/M/2014 SHIVCHARAN J. AGRAWAL CALCULATION OF CORRECT INTEREST U/S 234A AND 234B, THE APPLICATION WAS DISMISSED BY AO. THE ORDER OF DISMISSAL OF APPLICATION U/S 154 WAS C HALLENGED BEFORE THE LD. CIT(A) WHEREIN A DIRECTION WAS GIVEN ON 27.05.2011 TO RE-COMPUTE T HE INTEREST. THE AO DISMISSED THE SAME WITHOUT CONSIDERING THE CONTENTION SUBMITTED VIDE L ETTER DATED 23.08.2011 IN ITS VIDE ORDER DATED 01.09.2011. THE ASSESSEE AGAIN FILED APPEAL B EFORE THE LD. CIT(A) AND THE SAME WAS DECIDED ON 07.08.2013 WITH A SPECIFIC DIRECTION TO RE-CALCULATE THE INTEREST. THE AO FURTHER DIRECTED TO PASS THE SPEAKING ORDER IN CASE THE CON TENTION OF ASSESSEE IS NOT ACCEPTABLE TO HIM. THE AO IN COMPLIANCE OF ORDER DATED 07.08.2013 PASSED THE GIVING EFFECT ORDER ON 11.10.2013 WITHOUT GIVING ANY OPPORTUNITY OF HEARIN G. THE ASSESSEE AGAIN APPROACHED THE LD. CIT(A) ON 13.12.2013, WHEREIN THE APPEAL OF THE ASSESSEE WAS DISMISSED BY LD. CIT(A) HOLDING THAT THE ASSESSEE HAS NOT FILED ANY APPLICA TION FOR RECTIFICATION BEFORE THE AO VIDE ORDER DATED 24.09.2014. FURTHER AGGRIEVED BY THE OR DER DATED 29.09.2014, THE ASSESSEE FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AN D GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE LD. AR OF THE ASSESSEE ARGUE D THAT THE AUTHORITIES BELOW INSTEAD OF GIVING PROPER AND FAIR OPPORTUNITY OF HEARING PASSE D THE ORDER. IT WAS ARGUED THAT THE LD. CIT(A) VIDE ORDER DATED 07.08.2013 THE AO WAS SPECI FICALLY DIRECTED TO PASS SPEAKING ORDER IN CASE CONTENTION OF ASSESSEE IS NOT ACCEPTA BLE TO HIM. DESPITE THE DIRECTION OF LD. CIT(A), THE AO NEITHER GAVE OPPORTUNITY OF HEARING NOR PASSED THE DETAILED ORDER. WHEN GRIEVANCE WAS RAISED BEFORE THE LD. CIT(A), HIS APP EAL WAS AGAIN DISMISSED FOR TECHNICAL REASONS HOLDING THAT THE ASSESSEE HAS NOT FILED ANY APPLICATION FOR RECTIFICATION BEFORE THE AO. ON THE OTHER HAND, LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF AUTHORITIES BELOW. 4. WE HAVE NOTICED THAT THIS CASE HAS UNIQUE HISTORY. THE CASE UNDER CONSIDERATION PERTAINS TO AY 1990-91. THIS CASE HAS TRAVELLED TO THE TRIBUNAL TWICE AND FOUR TIMES BEFORE THE FIRST APPELLATE AUTHORITY (FAA). CONSIDERING THE GRIEVANC E OF THE ASSESSEE, WE DIRECT THE AO TO PASS THE ORDER IN ACCORDANCE WITH THE SPECIFIC DIRE CTION CONTAINED IN ORDER DATED 07.08.2013 PASSED BY LD. CIT(A)-20/11(3)(3)/IT-227/2012-13. TH E AO SHALL PROVIDE OPPORTUNITY OF HEARING BEFORE PASSING THE ORDER. AS THE CASE PERTA INS TO AY 1990-91. THE AO IS FURTHER DIRECTED TO PASS THE ORDER WITHIN 60 DAYS OF RECEIP T OF ORDER. THE ASSESSEE IS ALSO DIRECTED TO FULLY COOPERATE WITH THE AO AND PROVIDE ALL NECESSA RY INFORMATION AND DOCUMENTS INCLUDING HIS PROVISIONAL (DRAFT) CALCULATION OF INTEREST FOR CONSIDERATION AT THE END OF AO. WITH THESE DIRECTIONS THE APPEAL OF THE ASSESSEE IS ALLOWED. AS A RESULT, APPEAL FILED BY THE ASSESSEE IS ALL OWED. 3 ITA NO. 6881/M/2014 SHIVCHARAN J. AGRAWAL *+ ,- . / ! 01 2 ! 3 . ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JANUARY,2017. 5 ! 6 7 20 ( , 201 7 ! 01 ; SD/- SD/- ( / RAJENDRA ( IOU IOUIOU IOU / PAWAN SINGH)) ( / ACCOUNTANT MEMBER # ( / JUDICIAL MEMBER 1 /MUMBAI, 7 /DATE: 20.01.2017 SK ' )*+ ,+ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ ., ( < , 4. THE CONCERNED CIT / ., < 5. DR E BENCH, ITAT, MUMBAI / =>0 ?, B BB B , . . . 1 6. GUARD FILE/ 0 *1 = //TRUE COPY// 5 / BY ORDER, / DY./ASST. REGISTRAR ( ?, , 1 /ITAT, MUMBAI