NH SECURITIES LTD, MUMBAI V. ASST CIT CEN CIR 40, MUMBAI

ITA 7569/MUM/2013

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5809 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 24-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Keywords: Set aside
• Section: 143(3); 201; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B , MUMBAI BEFORE HONBLE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND HONBLE SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO.7569 /MUM/201 3 ASSESSMENT YEAR: 2009 - 10 NH SECURITIES LTD., 9, BHUPEN CHAMBERS, GROUND FLOOR, DALAL STREET, FORT, MUMBAI 400 023. PAN: A AACS7140Q VS. ACIT, CENTRAL CIRCLE 40, MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI N EELKANTH KHANDELWAL REVENUE BY : DR. P. DANIEL (DR) DATE OF HEARING : 13 .11.2018 DATE OF PRONOUNCEMENT : 05 .12 .201 8 O R D E R PER SANDEEP GOSAIN , JM: 1. THIS APPEAL BY ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE CIT(A) - 36, MUMBAI DATED 16.12 .201 3 FOR THE A.Y 2009 - 10 , WHICH IN ITSELF DIRECTED AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER (FOR SHORT A.O ) UNDER SEC. 143(3) R.W.S 147 OF THE ACT . 2. AT THE VERY OUTSET FROM THE RECORDS, WE NOTICED THAT LD. COUNSEL FOR THE ASSESSEE HAS RAISED A SPECIFIC GROUND THAT LD. CIT(A) HAD ERRED IN NOT ADJUDICATING THE GROUND OF APPEAL NO. 1 WHICH RELATES TO SEEKING EXEMPTION U/S 10 (33) OF THE IT ACT, 1961. 3. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHALF OF THE DEPARTMENT SUBMITTED THAT ASSESSEE HAS NOT COOPERATED AND HAD NOT FILED THE REQUIRED DETAILS ETC., INCLUDING COMPUTATION OF INCOME AND 2 ITA NO. 7569/MUM/2013. NH SECURITIES LTD, MUMBAI THEREFORE AT THIS STAGE THE ASSESSEE CANNOT BE ALLOWED TO ARGUE THAT GROUND OF APPEAL NO. 1 WAS NOT ADJUDICATED BY LD. CIT(A). 4. BE THAT AS IT MAY, HONBLE APEX COURT IN THE CASE OF SHRI KAPURCHAND SHRIMAL VS. CIT [1981], 131 ITR 451 (SC) HAS HELD THAT THE DUTY OF THE TRIBUNAL DOES NOT END WITH MAKING A DECLARATION THAT THE ASSESSMENTS ARE ILLEGAL AND IT IS DUTY BOUND TO ISSUE FURTHER DIRECTIONS. THE APPELLATE AUTHORITY HAS THE JURISDICTION AS WELL AS THE DUTY TO CORRECT ALL THE ERRORS IN THE PROCEEDINGS UNDER APPEAL AND TO ISSUE, IF NECESSARY, APPROPRIATE DIRECTIONS TO THE AUTHORITY AGAINST WHOSE DECISION TO THE APPEAL PREFERRED TO DISPOSE OF THE WHOLE OR ANY PART OF THE MATTER AFRESH UNLESS FORBIDDEN FROM THE DOING SO BY STATUTE. THE STATUTE DOES NOT SAY THAT SUCH A DIRECTION CANNOT BE ISSUED BY THE APPELLATE AUTHORITY IN A CASE OF THIS NATURE. 5. THEREFORE, CONSIDERING ABOVE JUDGMENT AND KEEPING IN VIEW OF THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER O F THE CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE A.O WITH A DIRECTION TO DECIDE THIS GROUND AFRESH . IT IS NEEDLESS TO SAY TO MENTION THAT BEFORE PASSING THE ORDER OF ASSESSMENT, THE A.O SHALL PROVIDES SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSE SSEE. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF THE A.O SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY THE A.O INDEPEND ENTLY IN ACCORDANCE WITH LAW. WITH THESE DIRECTIONS, THIS GROUND OF APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. SINCE, WE HAVE ALREADY RESTORE BACK THE GROUND OF APPEAL NO.1 TO THE FILE OF THE A.O FOR AFRESH ADJUDICATION AND OTHER GROUND S BEING CONSEQUENTIAL IN NATURE ARE ALSO RESTORE BACK TO THE FILE OF THE A.O. 3 ITA NO. 7569/MUM/2013. NH SECURITIES LTD, MUMBAI 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES W ITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OP EN COURT ON THIS 5 T H DEC , 201 8 . S D / - S D / - ( B.R. BASKARAN ) ( SANDEEP GOSAIN ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 0 5 /12 /201 8 KRK / 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/