PUSHKAR GUPTA, MUMBAI V. ASST CIT CIT 26(1), MUMBAI

ITA 917/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3007 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 10-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NO. 917/MUM/2015 (ASSESSMENT YEAR : 2010-11) SHRI PUSHKAR GUPTA, 803, SANDY FLAMA, DISTT. FLAMINGOS, CHINA MILL COMPOUND, TJ ROAD, SEWRI, MUMBAI 400015 PAN:AADPG 7500J ... APPELL ANT VS. THE ACIT , CIR.26(1) MUMBAI .... RESPONDENT APPELLANT BY : SHRI SUNIL HIRAWAT, RESPONDENT BY : SHRI SANTOSH MANKOSKAR DATE OF HEARING : 29/06/2016 DATE OF PRONOUNCEMENT : 29/06/2016 ORDER THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO ASSESSMENT YEAR 2010-11 IS DIRECTED AGAINST AN ORDE R PASSED BY CIT(A)- 46, MUMBAI DATED 04/12/2014, WHICH IN TURN ARISES O UT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 28/03/2013. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL:- 1.1 ON FACTS AND IN LAW. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) [HEREINAFTER REFERRED TO AS 'LD. CIT(A)'] HAD FAILED TO 2 ITA NO. 917/MUM/2015 (ASSESSMENT YEAR : 2010-11) APPRECIATE THAT FIRST NOTICE U/S.143(2) WAS SERVED BEYOND THE TIME LIMIT PRESCRIBED IN THE INCOME-TAX ACT. HENCE ORDER PASSED U/S.144 BY THE LEARNED ASSESSING OFFICER (LAO) IS BAD-IN-IA W. 1.2 ON FACTS AND IN LAW. THE LD. CIT(A) HAD FAILED TO APPRECIATE THAT RECEIPT OF NOTICE U/S.143(2) WAS BROUGHT TO THE NOT ICE OF AUTHORIZED REPRESENTATIVE (AR) OF THE APPELLANT AFTER THE HEAR ING BEFORE LD. CLT(A) ON 03.12.2014 AND ACCORDINGLY. IMMEDIATELY T HIS FACT WAS INFORMED TO THE LD. CIT(A) ON THE SAME DATE. AS SUC H. NO ADVERSE INFERENCE SHOULD BE TAKEN BY THE LEARNED CIT(A) IN THIS REGARD. 2. ON FACTS AND IN LAW. THE LD. CIT(A) OUGHT TO HA VE CONSIDERED THE SUBMISSIONS VIDE LETTER NO. NIL DATED 03.12.2014 AS ADDITIONAL GROUND OF APPEAL AND DECIDED THE APPEAL ACCORDINGLY . 3. ON FACTS AND IN LAW. THE LD. CIT(A) HAD ERRED IN NOT CONSIDERING THE WRITTEN SUBMISSIONS SUBMITTED DURING THE HEARIN G ON 03.12.2014 VIDE LETTER NO.SH/IT DATED 01.12.2014 WHILE PASSING THE APPELLATE ORDER DATED 04.12.2014. UNDER THE FACTS AND CIRCUMS TANCES OF THE MATTER. LD. CIT(A) OUGHT TO HAVE CONSIDERED THE WRI TTEN SUBMISSIONS SUBMITTED DURING THE HEARING ON 03.12.2014 AND ALLO WED THE RELIEF ACCORDINGLY. 4. ON FACTS AND IN LAW. THE LD. CIT(A) HAD ERRED I N NOT CONSIDERING THE EXEMPTION CLAIMED AMOUNTING TO RS.1.69.680/- U/ S.L0(13A) OF THE LT. ACT. UNDER THE FACTS AND CIRCUMSTANCES OF T HE MATTER. HE OUGHT TO HAVE ALLOWED EXEMPTION CLAIMED U/S.L O( 13 A) AMOUNTING TO RS.L.69.680/-. 5. ON FACTS AND IN LAW. THE LD. CIT(A) HAD ERRED I N NOT ALLOWING LOSS FROM HOUSE PROPERTY AMOUNTING TO RS.45.382/- WITHOU T ASSIGNING ANY REASON. UNDER THE FACTS AND CIRCUMSTANCES OF TH E MATTER. HE OUGHT TO HAVE ALLOWED THE LOSS FROM HOUSE PROPERTY OF RS.45.382/-. 6. ON FACTS AND IN LAW. THE LEARNED CIT(A) ERRED IN STATING THAT GROUND NO.4 IS NOT PRESSED AND THE SAME IS TREATED AS DISMISSED EVEN THOUGH IN THE WRITTEN SUBMISSIONS VIDE LETTER NO.SH/IT DATED 01.12.2014. THE AR OF THE APPELLANT HAS CONTENDED T HAT INTEREST ON SB ACCOUNT COMES TO RS.463.71/- AND NOT RS.25.000/- AS ESTIMATED BY THE LAO IN THE IMPUGNED ASSESSMENT ORDER. UNDER THE FACTS AND CIRCUMSTANCES OF THE MATTER. LD. CIT(A) OUGHT TO HA VE DIRECTED THE LAO TO TAX ONLY RS.463.71 AS INTEREST ON SB ACCOUNT INSTEAD OF RS.25.000/- ESTIMATED BY LAO. 3 ITA NO. 917/MUM/2015 (ASSESSMENT YEAR : 2010-11) 3. ALTHOUGH ASSESSEE HAS RAISED MULTIPLE GROUNDS OF APPEAL, BUT AT THE TIME OF HEARING LD. REPRESENTATIVE FOR THE ASSE SSEE MADE A PRELIMINARY POINT WHICH IS TO THE EFFECT THAT THE N OTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE BEYOND THE PERIOD STIPULATED IN LAW. LD. REPRESENTATIVE FOR THE ASSE SSEE EXPLAINED THAT APPELLANT IS AN INDIVIDUAL EMPLOYED WITH HDFC BANK LTD. AND HAD FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2010-11 DECLAR ING TOTAL INCOME OF RS.33,36,250/- ON 17/06/2010. THE ASSESSMENT WAS FI NALIZED BY THE ASSESSING OFFICER AS A BEST JUDGMENT ASSESSMENT UND ER SECTION 144 OF THE ACT AFTER NOTICING NON-ATTENDANCE ON BEHALF OF THE ASSESSEE AND THE TOTAL INCOME WAS ASSESSED AT RS.41,13,150/-. LD. R EPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT BEFORE THE CIT(A) ASSESSE E HAS RAISED VARIOUS ISSUES WITH RESPECT TO THE ADDITION MADE, BY FURNIS HING SOME ADDITIONAL EVIDENCES, WHICH WAS NOT ENTERTAINED BY THE CIT(A). LD. REPRESENTATIVE FOR THE ASSESSEE ALSO POINTED OUT THAT AT THE STAGE OF THE ASSESSMENT PROCEEDINGS, THE MATTER WAS NOT PROPERLY HANDLED BY THE ASSESSEE, WHICH HAD RESULTED IN MAKING OF A BEST JUDGMENT ASS ESSMENT ON EX- PARTE BASIS. BE THAT AS IT MAY, ACCORDING TO HIM, BEFOR E THE CIT(A) ASSESSEE HAD RAISED THE ISSUE AS TO WHETHER OR NOT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED AS PER THE PRO VISIONS OF LAW, THOUGH AT THE FAG END OF THE PROCEEDINGS, WHICH HAS BEEN UNJUSTLY REJECTED WITHOUT EXAMINATION. 4. IN THIS BACKGROUND, THE LD. REPRESENTATIVE FOR T HE ASSESSEE POINTED OUT THAT THE ASSESSEE WOULD BE SATISFIED, I F THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR EXAMINATION AFRESH 4 ITA NO. 917/MUM/2015 (ASSESSMENT YEAR : 2010-11) WITH REGARD TO ASSESSEES CLAIM FOR NON-RECEIPT OF NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE PRESCRIBED PERIOD IN L AW AND OTHER ISSUES. 5. LD. DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT THE ISSUE OF DEFECTIVE SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT WAS RAISED BY THE ASSESSEE BEFORE CIT(A) IN A BELATED STAGE AFTER THE HEARING, BUT THROUGH A COMMUNICATION IN TAPAL. UNDER THESE CI RCUMSTANCES, THE CIT(A) HAS NOT EXAMINED THE CONTENTION. 6. I HAVE CAREFULLY CONSIDERED THE PRELIMINARY OBJE CTION RAISED BY THE ASSESSEE. AT PAGE 27 OF THE PAPER BOOK IS PLAC ED A COPY OF THE NOTICE UNDER SECTION 143(2) OF THE ACT DATED 26/8/2 011, WHICH IS ADDRESSED TO THE ASSESSEE, BUT THE ADDRESS MENTIONE D IS NOT THE ADDRESS STATED IN THE RETURN OF INCOME. THE CLAIM SET-UP BY THE ASSESSEE IS THAT SUCH NOTICE WAS NOT RECEIVED AT T HE STATED ADDRESS BUT WAS RECEIVED BY THE ASSESSEE PERSONALLY ON 10/10/20 11 FROM THE ASSESSING OFFICER. FOR THIS REASON IT IS SOUGHT TO BE POINTED OUT THAT THE PLEA OF THE ASSESSEE FOR NON-RECEIPT OF NOTICE WITH IN THE STIPULATED PERIOD BE EXAMINED ON MERITS. THE CIT(APPEALS) IN PARA 3.1 OF HIS ORDER DOES ACKNOWLEDGE THAT SUCH POINT WAS RAISED B EFORE HIM BUT THROUGH A COMMUNICATION OF THE ASSESSEE RECEIVED IN TAPAL. IN MY CONSIDERED VIEW, THE PLEA OF THE ASSESSEE HAS BEEN SHUT-OUT BY THE CIT(APPEALS) WITHOUT CONSIDERING IT ON THE MERITS. THEREFORE, IN THE PRESENT SITUATION, I FIND ENOUGH MERIT IN THE PLEA OF THE ASSESSEE FOR REMANDING THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR EXAMINING THE PLEA OF THE ASSESSEE ON MERITS IN ACCORDANCE WI TH LAW. THE ASSESSING OFFICER SHALL ALSO CONSIDER ANY OTHER PLE A THAT THE ASSESSEE 5 ITA NO. 917/MUM/2015 (ASSESSMENT YEAR : 2010-11) MAY RAISE IN SUPPORT OF HIS RETURN OF INCOME. AFTE R CONSIDERING THE SUBMISSIONS PUT-FORTH BY THE ASSESSEE, THE ASSESSIN G OFFICER SHALL PROCEED TO PASS AN ORDER AFRESH IN ACCORDANCE WITH LAW. 7. IN THE RESULT, APPEAL OF THE ASSESEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29/06/201 6 SD/- (G.S. PANNU) ACCOU NTANT MEMBER MUMBAI, DATED 29/06/2016 VM , SR. PS 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. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI