SHAKAR AGARWAL, MUMBAI V. ACIT 17(3), MUMBAI

ITA 7478/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2644 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2014-2015
• Appeal Filed On: 28-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R UDAYA BHASKAR JAKKA
• Assessee Lawyers: DR P DANIEL
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI N.K. PRADHAN , HON'BLE ACCOUNTANT MEMBER ITA NO. 7478 /MUM/201 8 (A.Y: 2014 - 15 ) SHRI SHANKAR A GARWAL S AGAR SUKHSHITI, 5 TH ROAD BEHIND COOPER HOSPITAL JUHU SCHEME, MUMBAI 400 056 PAN: AABPA3548G V. ACIT 17(3) AAYAKAR BHAVAN M.K. ROAD MUMBAI 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DR. P. DANIEL DEPARTMENT BY : SHRI A.R. UDAYA BHASKAR JAKKA DATE OF HEARING : 29 .01.2020 DATE OF PRONOUNCEMENT : 27 .02 . 2020 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE L EARNED COMMISSIONER OF INCOME TAX (APPEALS) 28, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 12.09.2018 FOR THE ASSESSMENT YEAR 2014 - 15 . 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: - I. A) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN VIOLATING THE PRINCIPAL OF NATURAL JUSTICE BY NOT ISSUING NOTICE OF HEARING TO THE ASSESSEE. B) THE LEARNED CIT(A) ERRED IN NOT ISSUING NOTICE OF HEARING AT THE CORRECT ADDRESS. THE CORRECT ADDRESS SPECIFIED 2 ITA NO. 7478/MUM/2018 (A.Y: 2014 - 15) SHRI SHANKAR AGARWAL IN FORM NO.35 AND ASSESSMENT ORDER BUT NOTICE WERE ISSUED AT THE OLD ADDRESS. II. A. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE NOT A LLOWING TO SET OFF BUSINESS LOSSES OR SHORT TERM CAPITAL LOSSES OF EARLIER YEARS AGAINST CAPITAL GAIN ARISES ON ACCOUNT OF DEPRECIABLE ASSE TS U/S.50 OF THE I.T. ACT 1961. B. THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACTS OF CASE IN CONFIRMING THE TAX RAT E 30% INSTEAD OF 20%, AS GAIN IS ON ACCOUNT OF LONG TERM CAPITAL ASSETS. III . THE APPELLANT CRAVE LEAVE TO SUBMIT ADDITIONAL GROUNDS OF APPEAL, IF ANY, AT OR BEFORE THE TIME OF HEARING AND / OR AFTER, MODIFY, REFRAME ANY GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE NOTICES FOR HEARING HAS BEEN FORWARDED TO THE OLD ADDRESS OF THE ASSESSEE AND HENCE ASSESSEE COULD NOT ATTEND THE PROCEEDINGS BEFORE THE LD.CIT(A). LD. COUNSEL FOR THE ASSESSE E SUBMITS THAT LD.CIT(A) PASSED EXPARTE ORDER WITHOUT PROVIDING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE, T HEREFORE, REQUESTED THAT THE MATTER MAY BE RESTORE D TO THE FILE OF THE LD.CIT(A). 4. LD. DR HAS NO SERIOUS OBJECTION IN REMITTING THE MATTER BAC K TO THE FILE OF THE LD.CIT(A). 5. WE HAVE HEARD THE SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON A PERUSAL OF THE LD.CIT(A) ORDER , WE FIND THAT THE EVEN THOUGH THE LD.CIT(A) PROVIDED OPPORTUNITY ON SEVERAL OCCASIONS ASSESSEE COULD NOT APP EAR AS THE NOTICES WERE SENT TO OLD ADDRESS . 3 ITA NO. 7478/MUM/2018 (A.Y: 2014 - 15) SHRI SHANKAR AGARWAL CONSIDERING THE TOTALITY OF FACTS AND SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND KEEPING IN VIEW THE ADDITIONS/DISALLOWANCE MADE BY THE ASSESSING OFFICER , IN THE INTEREST OF JUSTICE WE ARE OF THE OPINI ON THAT ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD. THUS , THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) FOR D ENOVO ADJUDICATION IN ACCORDANCE WITH LAW . ASSESSEE SHALL COOPERATE WITH THE PROCEEDINGS BEFORE THE LD.CIT(A) WITHOUT TA KING UNNECESSARY ADJOURNMENTS. THUS , THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 27 TH FEBRUARY, 2020 SD/ - SD/ - ( N.K. PRADHAN ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 27 / 0 2 / 2020 GIRIDHAR , S R. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM