VASANTLAL R. MANIAR, MUMBAI V. ITO 11(3)(4), MUMBAI

ITA 7626/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3602 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 22-12-2014
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Keywords: Opportunity of being heard; Principle of natural justice; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.7626/M/2014 (ASSESSMENT YEAR: 2008 - 2009 ) SHRI VASANTLAL R. MANIAR, 709, RAJ VAIBHAV TOWERS, MAHAVIR NAGAR, DHANUKAR WADI, KANDIVALI, MUMBAI - 067. / VS. ITO - 11(3)(4), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 20. ./ PAN : AABPM6309H ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI VIPUL JOSHI / RESPONDENT BY : SHRI O.P. MEENA, JCIT / DATE OF HEARING : 21.06.2016 / DATE OF PRONOUNCEMENT : 22 .08.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 22.12.2014 IS AGAINST THE ORDER OF THE CIT (A) - 2, MUMBAI DATED 21.7.2014 FOR THE ASSESSMENT YEAR 2008 - 2009. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1.1. THE LD CIT (A) ERRED IN PASSING THE ORDER AS EX - PARTE AND WITHOUT GIVING SU FFICIENT PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 1.2. IT IS SUBMITTED THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER IS REQUIRED TO BE HELD AS BAD IN LAW. 2.1 WITHOUT PREJUDICE TO THE ABOVE, LD CIT (A) ERRED I N CONFIRMING THE ACTION OF THE AO IN COMPUTING THE CAPITAL GAIN WITHOUT GIVING DEDUCTION ON ACCOUNT OF COST OF ACQUISITION. 2.2. IT IS SUBMITTED THAT, OTHERWISE ALSO, IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE COMPUTATION OF THE CAPITAL GAIN BY THE AO WAS NOT IN ACCORDANCE WITH THE LAW. 2. THE CORE ISSUE RAISED IN THIS APPEAL RELATES TO THE BREACH OF PRINCIPLES OF NATURAL JUSTICE. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT NONE APPEARED BEFORE THE CIT (A) IN CONNECTION WITH THE ORDER DATED 21.7.2014, WHICH EMANATED FROM THE AOS ORDER DATED 26.3.2013. CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE EX - PARTE. AGGRIEVED W ITH THE SAID DECISION OF THE CIT (A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 2 3. DURING THE PROCEEDINGS BEFORE THE TRIBUNAL, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED ORDER WAS DECIDED EX PARTE AND THE N O N - A P P E A R E A N C E I S N O T WITHOUT ANY VALID REASONS. F URTHER, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL MAY GRANT ONE MORE OPPORTUNITY FOR APPEARING BEFORE THE CIT (A) AND REQUESTED FOR REMANDING THE ISSUE TO THE FILE OF THE CIT (A) FOR FRESH CONSIDERATION IN THE MATTER. LD COUNSEL FOR THE ASSE SSEE PROMISED FOR THE COOPERATION BEFORE THE CIT (A). 4. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE DECISION OF THE TRIBUNAL DATED 29.1.2016 IN THE FIRST ROUND OF THE PROCEEDINGS, I FIND, THE TRI BUNAL ALSO REMANDED THE MATTER TO THE FILE OF THE AO FOR DE NOVO DETERMINATION OF THE ISSUE AFTER ALLOWING PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. PARA 10 OF THE SAID TRIBUNALS ORDER IS RELEVANT IN THIS REGARD. ON PERUSAL OF THE ABOVE FACTS, I FIND THAT THE DIRECTIONS OF THE ITAT (SUPRA) ARE NOT MEANINGFULLY CARRIED BY THE AO / CIT (A) AND THE ASSESSEE WAS NOT HEARD AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. THEREFORE, I AM OF THE OPINION THE MATTER SHOULD BE REMANDED TO THE C IT (A) FOR DECIDING THE ISSUE AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. I ORDER ACCORDINGLY. ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE CIT (A) WITHOUT FAIL. ACCORDING LY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED IN THE OPEN COURT ON 2 2 N D AUGUST, 2016. S D / - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 22 .8.2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI