DEEPAK K. MOTWANI, MUMBAI V. DCIT 12(3), MUMBAI

ITA 771/MUM/2012

• Counselvise Citation: 77119914 RSA 2012
• Duration Of Justice: 1 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 17-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 03-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SALMAN KHAN
• Assessee Lawyers: VIJAY KOTHARI; AJIT SHETTY
• Section: 45(2)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.771/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2008-09 DEEPAK K. MOTWANI, 501, TULSIANI CHAMBER, FREE PRESS JOURNAL MARG, NARIMAN POINT, MUMBAI 400021 ' ' ' ' / VS. THE DCIT 12(3), AAYKAR BHAVAN, MK ROAD, MUMBAI - 400020. $ ./ % ./ PAN/GIR NO. : AACPM 8745N ( $& / APPELLANT ) .. ( '($& / RESPONDENT ) $& ) / APPELLANT BY: S/SHRI VIJAY KOTHARI & AJIT SHETTY '($& * ) / RESPONDENT BY : SHRI SALMAN KHAN ' * + / DATE OF HEARING : 17/09/2013 ,-# * + / DATE OF PRONOUNCEMENT : 17/09/2013 . / O R D E R PER I.P.BANSAL, J.M THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-23,MUMBAI DATED 30/11/2011 FOR ASSESSMENT YEAR 2008- 09. GROUND OF APPEAL READ AS UNDER: . / ITA NO.771/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2008-09 2 1. THE LEARNED CIT (A) ERRED ON THE FACTS AND IN L AW BY DISMISSING THE APPEAL, AS THE APPEAL AND FORM OF VERIFICATION HAS NOT SIGN ED BY THE APPELLANT BUT SIGNED BY HIS FATHER WHO HAS POWER OF ATTORNEY HOLDER. 2. THE LEARNED ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN NOT ACCEPTING THE PROJECT COMPLETION METHOD FOR PROJECTED STARTED D URING THE YEAR AND COMPLETED IN THE SUBSEQUENT YEAR AND OFFERED FOR TAXATION THE REBY MAKING AN ADDITION OF RS.31,03,687/-. THE LEARNED ASSESSING OFFICER OVERL OOKED THE FACT THAT THE BUILDINGS UNDER CONSTRUCTION WERE INDEPENDENT BUILD INGS. 3. THE LEARNED ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN MAKING ADDITIONS OF RS.75,90,880/- FOR SUPPRESSING THE SALE CONSIDERATI ON OVERLOOKING THE FACTS THAT ALL THE AGREEMENT(MADE AVAILABLE TO THE LEARNED ASS ESSING OFFICER) WERE REGISTERED WITH THE APPROPRIATE AUTHORITY AFTER PAYING THE STA MP DUTY. 4. THE LEARNED ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN FOR INITIATING PENALTY PROCEEDINGS U/S 271(1 )(C). 2. THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED BY LD. CIT(A) ON THE GROUND THAT THE VERIFICATION IN FORM NO.35 WAS NO T SIGNED BY THE PERSON WHO IS REQUIRED TO SIGN THE SAME AS PER PROVISIONS OF R ULE 45(2) OF INCOME TAX RULES, 1962. THEREFORE, LD. CIT(A) HAS DISMISSED THE APPEAL AS UNADMITTED. 3. BEFORE US LD. AR SUBMITTED THAT THE CONCERNED C HARTERED ACCOUNTANT COULD NOT REMOVE THE DEFECT AS PER OPPORTUNITY GIVE N BY LD. CIT(A) ON THE GROUND THAT HE WAS PRE-OCCUPIED WITH THE MEDICAL TR EATMENT OF HIS FATHER, WHO HAS SUFFERED A PARALYSIS STROKE. HE SUBMITTED THAT AS LD. CIT(A) DID NOT GIVE SUFFICIENT OPPORTUNITY TO REMOVE THE DEFECT AND THE ASSESSEE WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE TO REMOVE THE DEFE CT THE APPEAL MAY BE RESTORED BACK TO THE FILE OF LD. CIT(A) WITH A DIRE CTION TO GIVE SUCH OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT AND THEN TO DE CIDE THE APPEAL ON MERITS AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. 4. THIS APPEAL WAS EARLIER FIXED ON 16/09/2013. THE RE BEING NO MATERIAL ON RECORD TO SUPPORT AFOREMENTIONED CONTENTION OF LD. AR, HE WAS REQUIRED TO FILE A LETTER FROM THE CONCERNED CHARTERED ACCOUNTANT FO R CONFIRMING THE AFOREMENTIONED FACTS AND THE MATTER WAS ADJOURNED T O 17/9/2013. ON . / ITA NO.771/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2008-09 3 17/09/2013 LD. AR HAS PLACED ON RECORD A LETTER WRI TTEN BY MR. PRASAD G. SALASKAR, PARTNERS OF SALASKAR & CO. CONTAINING TH E FOLLOWING CONTENTS: REF. NO. 2013/09/010 SEPTEMBER 16, 2013 THE HONOURABLE MEMBERS BENCH D, INCOME TAX APPELLATE TRIBUNAL, MUM BAI RESPECTED SIR, RE: EXPLANATION FOR NON ATTENDANCE BEFORE CIT (A)-2 3, IN THE CASE OF DEEPAK K. MOTWANI, AY 2008-2009 THE UNDERSIGNED IS REPRESENTING THE MATTER OF MR. D EEPAK K. MOTWANI. MY CLIENT WAS IN RECEIPT OF THE SHOW-CAUSE NOTICE D ATED 13-10-2011 ISSUED BY THE CIT (A)-23, MUMBAI. THE SAID NOTICE WAS RECEIVED BY THE CLIENT ON 17-10 -2011. AS PER THE NOTICE THE REPLY FOR CURING THE DEFECT IN THE FORM OF APPEAL, GROUNDS OF APPEAL ETC. WAS TO BE FURNISHED ON BEFORE 28-10- 2011. I HAVE SUBMITTED THAT DURING THE PERIOD 17-10-2011 TO 30-11-2011, I WAS PRE- OCCUPIED IN THE MEDICAL TREATMENT OF MY FATHER, WHO HAD SUFFERED A PARALYSIS STROKE. YOURS FAITHFULLY SD/- PRASAD G. SALASKAR PARTNER 4. IN THIS VIEW OF THE SITUATION AFTER HEARING BOT H THE PARTIES, WE ARE OF THE OPINION THAT IT WILL MEET THE INTEREST OF JUSTICE IF THIS APPEAL IS RESTORED BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO GIVE ON E MORE OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT. AFTER REMOVAL OF DE FECT LD. CIT(A) WILL RE- ADJUDICATE THE APPEAL AFTER GIVING REASONABLE OPPOR TUNITY OF HEARING TO THE ASSESSEE AS PER PROVISIONS OF LAW. WE DIRECT ACCOR DINGLY. . / ITA NO.771/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2008-09 4 5. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 17/09/2013 . * ,-# / 0'1 17/09/2013 - * 2 3 SD/- SD/- ( / RAJENDRA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 0' DATED 17/09/2013 . . . . * ** * '+45 '+45 '+45 '+45 65#+ 65#+ 65#+ 65#+ / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. 582 '+' , , / DR, ITAT, MUMBAI 6. 29 : / GUARD FILE. .' .' .' .' / BY ORDER, (5+ '+ //TRUE COPY// ; ;; ; / < < < < (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS