DR.MIRDUL VINOD PANDE, MUMBAI V. ITO 11(3)(1), MUMBAI

ITA 6886/MUM/2013

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6987 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 13-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 27-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: D C JAIN
• Keywords: Additional evidence

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN , J M & HONBLE SH. G. MANJUNATHA , A M ./ I.T.A. NO . 6886/MUM/2013 ( / ASSESSMENT YEAR: 2010 - 11 ) DR. MIRDUL VINOD PANDE, C/O - D.C. JAIN & CO. 75, BOMBAY MUTUAL BLDG, 293, DR. D. N. ROAD, FORT MUMBAI - 400 001 / VS. ITO 11 (3) (1), 447, 4 TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 ./ ./ PAN NO. AA BPP4754F ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI D. C. JAIN, AR / RESPONDENTBY : SHRI SUMAN KUMAR , DR / DATE OF HEARING : 02/01 /201 9 / DATE OF PRONOUNCEMENT : 03/01/2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 2, MUMBAI DATED 28.08.13 FOR AY 2010 - 11 . 2 I.T.A. NO. 6886 /MUM/201 3 DR. MIRDUL VINOD PANDE, 2 . AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE DRAWN OUR ATTENTION TO LETTER DA TED 05.05.18 FILED BY THE ASSESSEE FOR SEEKING AD MISSION OF ADDITIONAL /FRESH EVIDENCE UNDER RULE 29 OF THE APPELLATE TRIBUNAL RULES, 1963. 3 . WE HAVE HEARD COUNSELS FOR BOTH THE PART IES ON THIS APPLICATION DATED 05.05.18 FOR LEAD ING ADDITIONAL EVIDENCE AND AFTER PERUSING THE APPLICATION , WE FIND THAT ASSESSEE HAS TAKEN A PLEA THAT THE ALLOTMENT LETTER ISSUED BY THE BUILDER WAS TAKEN BACK FROM THE ASSESSEE, WH EN THE AGREEMENT WAS EXECUTED AND IN THE ABSENCE OF THE LETTER OF ALLOTMENT, THE CLAIM OF THE ASSESSEE WAS REJECTED BY THE REVENUE. IT IS ALSO PLEADED THAT NOW THE ASSESSEE COULD GET COPY OF ALLOTMENT LETTER AND IS THUS BEING FILED AS ADDITIONAL /FRESH EVI DENCE. IT WAS ALSO SUBMITTED THAT THE ABOVE DOCUMENTS ARE IMPORTANT FOR DECIDING THE CONTROVERSY IN QUESTION AND IS BEYOND THE SCOPE OF TAMPERING AND THUS GOES TO THE ROOTS OF THE MATTER. ON THE OTHER HAND, LD. DR REFUTED THE SUBMISSIONS OF THE ASSESSEE AN D SUBMITTED THAT SEVERAL OPPORTUNITIES WERE GRANTED TO THE ASSESSEE AT ALL STAGES OF ASSESSMENT, BUT THE ASSESSEE DID NOT PRODUCE THE DOCUMENTS. 3 I.T.A. NO. 6886 /MUM/201 3 DR. MIRDUL VINOD PANDE, 4. AFTER HAVING HEARD THE COUNSELS AT LENGTH, WE ARE OF THE VIEW THAT IN CASE THE REQUEST OF THE ASSESSEE IS N OT ALLOWED, THEN IN THAT EVENTUALITY, THE RIGHTS OF THE ASSESSEE WOULD BE PREJUDICED AND EVEN THE HONBLE GUJRAT HIGH COURT IN THE CASE OF CIT VRS. MAYUR FOUNDATION 274 ITR (2005) PAGE 562 HAD CATEGORICALLY HELD THAT THE PROCEEDINGS BEFORE THE TRIBUNAL ARE MEANT TO CORRECTLY ASSESS THE TAX LIABILITY OF THE ASSESSEE. IF THIS BE SO, IT FOLLOWS THAT ASSESSMENT PROCEEDINGS CANNOT BE SAID TO BE COMPLETED, BUT ARE PENDING TILL THE APPEAL IS HEARD AND DISPOSED OF BY THE TRIBUNAL AND THE ORDER OF THE TRIBUNAL IS GI VEN EFFECT TO, BY THE ASSESSING AUTHORITY BY COMPUTING THE CORRECT TAX LIABILITY OF THE ASSESSEE. 5. THE TRIBUNAL BEING THE LAST FACT FINDING AUTHORITY IS DUTY BOUND TO CONSIDER ALL THE RELEVANT FACTS NECESSARY TO ADJUDICATE THE ISSUE IN DISPUTE. THEREFO RE , WHILE KEEPING IN VIEW TH E ABOVE PROPOSITION LAID DOWN BY THE HONBLE HIGH COURT AND ALSO KEEPING IN VIEW THE FACTS OF THE APPLICATION , WE ALLOW THE APPLICATION OF ASSESSEE AND ADMIT THE ADDITIONAL EVIDENCES MOVED BY THE ASSESSE WHICH IS IN THE SHAPE OF LETTER OF ALLOTMENT. 4 I.T.A. NO. 6886 /MUM/201 3 DR. MIRDUL VINOD PANDE, 6 . SINCE WE HAVE ADMITTED THE ADDITIONAL EVIDENCE OF THE ASSESSEE, WHICH REQUIRES NECESSARY VERIFICATION AT THE END OF AO . THEREFORE, CONSIDERING THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO VERIFY THE ADDITIONAL EVIDENCE AND THEREAFTER WHILE CONSIDERING THE DOCUMENT , PASS AFRESH ORDER OF ASSESSMENT. 7. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF AO SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE AO INDEPENDENTLY IN ACCORDANCE WITH LAW. 8 . IN THE NET RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY A LLOWED FOR STATISTICAL PURPOSES WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT O N 3RD JAN 2019. SD/ - SD/ - ( G. MANJUNATHA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 03 . 01 .201 9 SR.PS . DHANANJAY 5 I.T.A. NO. 6886 /MUM/201 3 DR. MIRDUL VINOD PANDE, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI