MR.DEVANG VIJAY MEHTA, MUMBAI V. ITO WARD 17(1)(3), MUMBAI

ITA 692/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6327 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 07-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Rectification of order; Principle of natural justice; Earning of tax free income; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D , BENCH MUMBAI BEFORE SHRI M.BALAGANESH, AM & SHRI AMARJIT SINGH, JM ITA NO. 692/MUM/2019 ( ASSESSMENT YEAR : 2013 - 14 ) MR. DEVANG VIJAY MEHTA 50/A, BARODA STREET CARNAC BUNDER MUMBAI 400 009 VS. INCOME TAX OFFICER, WARD - 17(1)(3), ROOM NO.116, 1 ST FLOOR AAYAKAR BHAVAN M.K.ROAD, MUMBAI - 400020 PAN/GIR NO. AFHPM9374F (APPELLANT ) .. (RESPONDENT ) ASSESSEE BY SHRI DINKLE HARIYA REVENUE BY SHRI D.G. PANSARI DATE OF HEARING 30/07 /2019 DATE OF PR ONOUNCEMENT 02 / 08 /2019 / O R D E R PER M. BALAGANESH (A.M) : THIS APPEAL IN ITA NO. 692/MUM/2019 FOR A.Y. 2013 - 14 ARISES OUT OF THE ORDER BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 55, MUMBAI IN APPEAL NO. CIT(A) - 55/ITO - 17(1)(3)/IT - 4 29/2017 - 18 DATED 19/06/2018 (LD. CIT(A) IN SHORT) AGAINST THE ORDER OF ASSESSMENT PASSED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) DATED 14/03/2016 BY THE LD. INCOME TAX OFFICER - 17(1)(3), MUMBAI (HEREINAFTER REFERRED TO AS LD. AO). 2. AT THE OUTSET WE FIND THAT THERE IS A DELAY OF 152 DAYS IN FILING OF APPEAL BY THE ASSESSEE . THE ASSESSEE IN HI S AFFIDAVIT HAS STATED THAT HE ITA NO. 692/MUM/2018 MR. DEVANG VIJAY MEHTA 2 WAS PURSUING THE RECTIFICATION APPLICATION BEFORE THE LD. CIT(A) AS THE ORDER OF THE LD. CIT(A) WAS VERY CRYPTIC AND HAD BEEN PASSED WITHOUT DUE CONSIDERATION OF HONBLE JURISDICTIONAL HIGH COURT ON THE IMPUGNED ISSUE. THE RECTIFICATION APPLICATION WAS DISPOSED OFF BY THE LD. CIT(A) ON 22/01/2019 AND ASSESSEE HAD PREFERRED APPEAL TO THE APPELLATE TRIBUNAL ON 07/02/2019. WE FIND LOT OF FORCE IN THE ARGUMENT OF THE LD. AR THAT THE DELAY IN FILING OF APPEAL BEFORE THIS TRIBUNAL HAD OCCURRED IN VIEW OF THE FACT THAT ASSESSEE WAS PURSUING ALTERNATIVE REMEDY BY PREFERRING THE RECTIFICATION APPLICATION BEFORE THE LD . CIT(A) AND FROM THE DATE OF RECTIFICATION ORDER PASSED BY THE LD. CIT(A), THE ASSESSEE HAS FILED THE APPEAL BEFORE US WITHIN 15 DAYS THEREON. IN THESE PECULIAR FACTS AND CIRCUMSTANCES, WE FIND THAT ASSESSEE WAS PREVENTED BY REASONABLE CAUSE IN NOT FILIN G THE APPEAL BEFORE THIS TRIBUNAL IN TIME AND ACCORDINGLY, WE ARE INCLINED TO CONDONE THE DELAY AND ADMIT THE APPEAL OF THE ASSESSEE FOR ADJUDICATION. 3. THE ONLY EFFECTIVE ISSUE RAISED BY THE ASSESSEE IS WITH REGARD TO THE FACT THAT ASSESSEE HAD NOT EARN ED ANY EXEMPT INCOME AND HENCE, NO DISALLOWANCE U/S.14A OF THE ACT WOULD OPERATE ON THE SAME. WE FIND FROM THE ORDER OF THE LOWER AUTHORITIES THAT THE ASSESSEE HAD NOT CLAIMED ANY EXEMPT INCOME IN THE RETURN OF INCOME. THIS FACT IS NOT DISPUTED. ONCE THERE IS NO CLAIM OF EXEMPT INCOME, THERE CANNOT BE ANY DISALLOWANCE U/S.14A OF THE ACT. THIS ISSUE IS NOW SETTLED BY VARIOUS DECISIONS OF HONBLE JURISDICTIONAL HIGH COURT AND ALSO BY HONBLE SUPREME COURT. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ON ME RITS ARE ALLOWED. 3.1. IN VIEW OF THE AFORESAID OBSERVATION, THE ADJUDICATION OF GROUND NO.1 RAISED BY THE ASSESSEE ON VIOLATION OF PRINCIPLES OF NATURAL JUSTICE ITA NO. 692/MUM/2018 MR. DEVANG VIJAY MEHTA 3 BECOMES ACADEMIC IN NATURE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 0 2 / 08 /201 9 SD/ - ( AMARJIT SINGH ) SD/ - (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; D ATED 02 / 08 / 2019 KARUNA , SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//