SEZAL REALTY AND INFRASTRUCTURE LTD, MUMBAI V. ITO 9(3)(1), MUMBAI

ITA 7041/MUM/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0199 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 18-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 7041/MUM/2014 (ASSESSMENT YEAR: 2010-11) M/S. SEZAL REALTY AND INFRASTRUCTURE LTD. 201/202, ABHILASHA, 2ND FLOOR S.V. ROAD, KANDIVALI (W) MUMBAI 400067 VS. INCOME TAX OFFICER - 9(3)(1) AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 PAN AAJCS1030Q APPELLANT RESPONDENT APPELLANT BY: SHRI PRAYAG JHA RESPONDENT BY: SHRI V. JUSTIN DATE OF HEARING: 13.12.2017 DATE OF PRONOUNCEMENT: 21.02.2018 O R D E R PER RAJESH KUMAR, AM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-20, MUMBAI DATED 26.08.2014 FOR A.Y. 2010-11 . 2. THE VARIOUS GROUNDS RAISED BY THE ASSESSEE ARE AS U NDER: - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN ADJUDICATING THE APPEAL WITHOUT AFFORDING THE APPEL LANT WITH SUFFICIENT OPPORTUNITY OF BEING HEARD AND AGAINST T HE PRINCIPLES OF NATURAL JUSTICE AND EQUITY. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DISALLOWING DEDUCTION OF INTEREST PAID AMOUNTING TO RS.73,78,379/- U/S 57 OF THE INCOME TAX ACT, 1961. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN ADDING THE SHARE APPLICATION MONEY OF RS.6.65 CRORE S AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME TAX A CT, 1961. 3. THE ISSUE RAISED IN FIRST GROUND OF APPEAL IS THAT THE FIRST APPELLATE AUTHORITY HAS PASSED THE ORDER WITHOUT AFFORDING RE ASONABLE OPPORTUNITY OF ITA NO. 7041/MUM/2014 M/S. SEZAL REALTY AND INFRASTRUCTRE LTD. 2 BEING HEARD TO THE ASSESSEE THEREBY CAUSING MISCAR RIAGE OF PRINCIPLES OF NATURAL JUSTICE. 4. AT THE OUTSET THE LEARNED A.R. VEHEMENTLY SUBMITTE D BEFORE THE BENCH THAT THE ORDER HAS BEEN PASSED BY THE FIRST A PPELLATE AUTHORITY WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING H EARD AND THUS THE ASSESSEE WAS DEPRIVED FROM OPPORTUNITY TO PRESENT I TS CASE ON MERITS. THE LEARNED A.R. PLEADED BEFORE THE BENCH THAT IN VIEW OF THE SAID NON-GRANTING OF SUFFICIENT OPPORTUNITY THE CASE WAS DECIDED BY T HE LEARNED CIT(A) WITHOUT CONSIDERING THE CONTENTIONS AND SUBMISSIONS WHICH ASSESSEE WAS TO MAKE BEFORE THE SAID AUTHORITY. THE LEARNED A.R. PRAYED BEFORE THE BENCH THAT IN VIEW OF THESE FACTS THE CASE MAY KIND LY BE RESTORED TO THE FILE OF THE LEARNED CIT(A) WITH THE DIRECTION TO AFFORD REASONABLE OPPORTUNITY TO THE ASSESSEE TO FILE NECESSARY EVIDENCES AND PRESEN T ITS CONTENTIONS AND THE CASE BE DECIDED DE NOVA. 5. THE LEARNED D.R., ON THE OTHER HAND, OBJECTED TO T HE ARGUMENTS OF THE LEARNED A.R. BY SUBMITTING THAT SUFFICIENT OPP ORTUNITIES WERE GIVEN TO THE ASSESSEE BUT THE FAILURE TO FILE WRITTEN SUBMIS SIONS ON THE PART OF THE ASSESSEES COUNSEL COULD NOT BE ATTRIBUTED TO THE F IRST APPELLATE AUTHORITY AS THE ASSESSEE COULD NOT FILE THE SUBMISSIONS DESP ITE SEVERAL OPPORTUNITIES. IN VIEW OF THE SAME THE LEARNED D.R. REQUESTED THE BENCH THAT THE GROUNDS RAISED BY THE ASSESSEE BE DISMISSE D. 6. HAVING HEARD BOTH SIDES AND CONSIDERING THE RELEVAN T MATERIAL ON RECORD WE FIND THAT THE COUNSEL OF THE ASSESSEE REQ UESTED FOR SOME TIME TO FILE WRITTEN SUBMISSIONS WHICH COULD NOT BE FILED O N THE DATE FIXED FOR FILING SUCH DETAILS DUE TO SURVEY ON THE PREMISES OF THE A SSESSEE. THEREAFTER THE CASE WAS ADJOURNED TO 27.02.2014 BUT ON THAT DATE A LSO NONE ATTENDED THE PROCEEDINGS BEFORE THE CIT(A) AND THE CASE WAS DECI DED EXPARTE. THE AR SUBMITTED BEFORE THE BENCH THAT THE ASSESSEE SHOULD BE GIVE ONE MORE OPPORTUNITY AS IT COULD NOT PRESENT ITS CASE BEFORE THE LD CIT(A) FOR SUFFICIENT REASONS. CONSIDERING THE PRAYERS OF THE ASSESSEE , WE ARE OF THE OPINION THAT ASSESSEE SHOULD BE GIVEN ONE MORE CHA NCE TO PRESENT ITS CASE ITA NO. 7041/MUM/2014 M/S. SEZAL REALTY AND INFRASTRUCTRE LTD. 3 BEFORE THE FIRST APPELLATE AUTHORITY SO THAT THE AS SESSEE COULD FILE ITS WRITTEN SUBMISSION OR PRESENT ITS CONTENTIONS AND THE CASE BE DECIDED AFTER TAKING ALL THESE CONTENTIONS/SUBMISSION INTO ACCOUNT. THEREFORE , IN THE INTEREST OF NATURAL JUSTICE AND FAIR PLAY, WE R ESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO AFFORD SUFFICIE NT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE INVOLVED IN THE APPEAL DE NOVO. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST FEBRUARY, 2018. SD/ - SD/ - (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 21 ST FEBRUARY, 2018 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -20, MUMBAI 4. THE CIT - 9, MUMBAI 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.