DINESH H UDESHI, NAVI MUMBAI V. ITO WD 22(3)(1), NAVI MUMBAI

ITA 7365/MUM/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4562 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 02-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 03-11-2011
• Court: TRIBUNAL
• Department Lawyers: SU JIT BANGAR
• Assessee Lawyers: VIJAY C KOTHARI
• Keywords: Business income; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO. 7365/M/2011 (ASSESSMENT YEAR: 2007 - 2008 ) SHRI DINESH H. UDESHI, 2/20, ARTIST VILLAGE, SECTOR - 8, CBD BELAPUR, NAVI MUMBAI - 400614. / VS. ITO, WARD 22(3)(1), MUMBAI. ./ PAN : AAIPU1995L ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI VIJAY C. KOTHARI / RESPONDENT BY : SHRI SUJIT BANGAR, CIT - DR / DATE OF HEARING : 29.12.2015 / DATE OF PRONOUNCEMENT : 07 .01.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 3.11.2011 IS AGAINST THE ORDER OF THE CIT (A) - 33, MUMBAI DATED 18.8.2011 FOR THE ASSESSMENT YEAR 2007 - 2008. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) ERRED IN TREATING THE LONG TERM CAPITAL GAINS OF RS. 17,33,147/ - AS BUSINESS INCOME. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (A) ERRED IN TREATING THE SHORT TERM CAPITAL GAINS OF RS. 62,889/ - AS BUSINESS INCOME. 3. THE ORDER OF THE CIT (A) BE VACATED & JUSTICE BE GIVEN TO YOUR APPELLANT. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO FORM NO.36 , COLUMN NO.9 AND SUGGESTED THAT THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAI NST WAS WRONGLY MENTIONED AS 26.11.2009 AND FOR RECTIFYING THE SAME , REVISED FORM NO.36 WAS FILED. IN THIS REGARD HE MENTIONED THAT THE CORRECT DATE OF COMMUNICATION OF THE CIT (A) ORDER IS 13.9.2011. BRINGING OUR ATTENTION TO THE SAID CORRECT DATE, LD COUNSEL FOR THE ASSESSEE ARGUED THAT THERE IS NO DELAY IN FILING OF THE APPEAL BEFORE THE TRIBUNAL. ON VERIFICATION OF THE RELEVANT FACTS / DATES, WE FIND THAT 2 THERE IS NO DELAY IN FILING OF THE APPEAL. ACCORDINGLY, WE PROCEED TO ADJUDICATE THE ISSUES I NVOLVED IN THE APPEAL ON MERITS. 3. FURTHER, BRINGING OUR ATTENTION TO THE PAPER BOOK, LD COUNSEL FOR THE ASSESSEE SUGGESTED THAT THE PAPERS PLACED AT SL. NO.4 TO 6 AND 11 TO 15 CONSTITUTE ADDITIONAL EVIDENCES. IN ORDER TO DEMONSTRATE THE ACCEPTABILITY OF THE SAID PAPERS AND THE ADMITTANCE OF THE SAID ADDITIONAL EVIDENCES, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THESE PAPERS GO TO THE ROOT OF THE MATTER. THESE PAPERS COULD NOT BE PRODUCED BEFORE THE AO / CIT (A) AS THEY WERE OBTAINED SUBSEQUENTLY FROM THE SHARE TRANSFER AGENTS ETC. FOLLOWING ARE THE RELEVANT LINES THAT CONSTITUTE PRAYER FOR ADMITTANCE OF THE ADDITIONAL EVIDENCES. THE APPELLANT PRAYS THAT THE ADDITIONAL EVIDENCES BE ADMITTED SINCE THEY ARE GERMANE FOR DECIDING THE ISSUES IN APPEAL. TH E APPELLANT COULD NOT FILE THESE EVIDENCES BEFORE THE AO & CIT (A) SINCE THE RECORDS WERE NOT AVAILABLE AND HAD TO BE OBTAINED THROUGH THE SHARE TRANSFER AGENTS, DEPOSITORY AGENTS, ETC. FOR SUCH ACT OF KINDNESS, THE APPELLANT SH ALL EVER BE OBLIGED TO YOUR HON OURS. 4. AFTER GOING THROUGH THE GROUNDS, WE FIND, THE MAIN ISSUE RAISED IN THIS APPEAL RELATES TO THE CORRECT HEAD OF INCOME FOR TAXING THE GAINS EARNED ON SALE OF SHARES. IN OUR CONSIDERED OPINION, THE DOCUMENTS MENTIONED ABOVE GO TO THE ROOT OF THE MATTER. THEREFORE, WE FIND IT NECESSARY TO ADMIT THE SAME FOR ADJUDICATION OF THE ISSUE IN QUESTION. FURTHER, WE HAVE ALSO HEARD LD REPRESENTATIVES OF BOTH THE PARTIES ON THE REQUIREMENT OF REMANDING THE ISSUE TO THE FILE OF THE AO. CONSIDERING THE NEED FOR REMANDING THE MATTER TO THE FILE OF THE AO IN VIEW OF THE SET PRINCIPLES OF NATURAL JUSTICE, WE REMAND THIS ISSUE TO THE AOS FILE AND DIRECT HIM TO DECIDE THE ISSUE AFTER CONSIDERING THE SAID ADDITIONAL EVIDENCES AND AFFORDING A REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 0 7 T H JANUARY, 2016. S D / - S D / - ( JOGINDER SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 7 .1.2016 . . ./ OKK , SR. PS 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI