KANCHAN SRICHAND MATTA, MUMBAI V. ITO 19(1)(1), MUMBAI

ITA 986/MUM/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79207 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 12-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ADAGIRI
• Keywords: Reasonable cause; Capital receipt

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, SMC MUMBAI .., BEFORE SHRI I.P.BANSAL, JUDICIAL MEMBER. ITA NO.986/MUM/2014 (A.Y. 2009-10) MR. KANCHAN SRICHAND MATTA, SANNIDHI, PLOT NO.721, 4 TH FLOOR, FLAT NO.401, 12 TH ROAD, KHAR (W), MUMBAI 400052 PAN:AOAPM 2200G THE ITO 19(1)(1) ROOM NO.319, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI 400 012. ( ! / // / APPELLANT) # # # # / VS. ( $% !/ RESPONDENT) ! & ' & ' & ' & ' /APPELLANT BY : SHRI PRITESH MEHTA $% ! & ' & ' & ' & ' /RESPONDENT BY : SHRI. B.YADAGIRI # & ()* / / / / DATE OF HEARING : 01/07/2014 +,- & ()* / DATE OF PRONOUNCEMENT : 01/07/2014 . . . . / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST EX-PARTE ORDER PASSED BY LD. CIT(A) DATED 2/12/2013 FOR ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: BEING AGGRIEVED BY THE ORDER OF THE CIT APPEALS- 3 0 (HEREINAFTER REFERRED TO AS CIT (A)) DATED 30.12.2013 UNDER SECTION 250, THE APPELLANT S UBMITS THIS APPEAL ON THE FOLLOWING GROUNDS EACH OF WHICH MAY PLEASE BE CONSIDERED WITH OUT PREJUDICE TO ONE ANOTHER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW : 1. LONG TERM CAPITAL GAIN (LTCG) ON SALE OF FLAT: 1.1 THE LEARNED CIT (A) ERRED IN CONSIDERING THE SH ARE OF THE ASSESSEE IN THE SALE CONSIDERATION OF FLAT AT RS.44,26,083 INSTEAD OF RS . 43,33,300/- AS CONSIDERED IN THE RETURN FILED BY THE ASSESSEE. 1.2 THE LEARNED CIT (A) FURTHER ERRED IN NOT ALLOWI NG INDEXATION ON THE COST OF IMPROVEMENT OF RS. 95,000/-. 1.3 THE LEARNED CIT (A) FURTHER ERRED IN DISALLOWIN G BROKERAGE & LEGAL FEES INCURRED IN RELATION TO SALE OF FLAT OF RS. 43,500/-. 1.4 THE LEARNED CIT (A) FURTHER ERRED IN CONSIDERIN G TAXABLE LTCG AT RS.66,085/-. ITA NO.986/MUM/2014 (A.Y. 2009-10) 2 2. INCOME FROM OTHER SOURCES: 2.1 THE LEARNED CIT (A) ERRED IN ADDING BACK AN AMO UNT OF RS. 2,66,800/- AS INCOME FROM OTHER SOURCES, WHICH WAS RECEIVED BY THE APPEL LANT AS COMPENSATION TOWARDS TEMPORARY ALTERNATE ACCOMMODATION. 2.2 THE LEARNED CIT (A) FURTHER ERRED IN NOT APPREC IATING THE FACT THAT THE COMPENSATION RECEIVED WAS NOT IN NATURE OF A COMMERCIAL TRANSACT ION. 2.3 THE LEARNED CIT (A) FURTHER ERRED IN NOT APPREC IATING THE FACT THAT THE COMPENSATION WAS RECEIVED WAS FOR THE DISLOCATION AND HARDSHIP C AUSED TO THE APPELLANT 2.4 THE LEARNED CIT (A) FURTHER ERRED IN CONSIDERIN G THE COMPENSATION AS A REVENUE RECEIPT INSTEAD OF CAPITAL RECEIPT. 3 GENERAL 3.1 THE LEARNED CIT (A) DEPRIVED THE APPELLANT OF A DEQUATE OPPORTUNITY TO REPRESENT HIS CASE. 3.2 THE APPELLANT PRAYS TO YOUR HONOUR TO CANCEL TH E ORDER PASSED BY THE CIT APPEALS- 30 UNDER SEC. 250 AND PRAYS TO ALLOW THE CORRECT AM OUNT OF EXPENSES AND DEDUCTION CLAIMED AS REFERRED TO IN THE GROUNDS HEREINBEFORE OR ALTERNATIVELY PRAYS TO GRANT SUCH RELIEF AS YOUR HONOUR MAY DEEM FIT. 3.3 THE APPELLANT CRAVES LEAVE TO ADD, DELETE, WITH DRAW AND\OR MODIFY ANY ONE\MORE OR ALL THE ABOVE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF FINAL HEARING. 2. REFERRING TO GROUND NO.3.1, IT WAS SUBMITTED BY LD. AR THAT EX-PARTE ORDER HAS BEEN PASSED BY LD. CIT(A) FOR THE FAILURE OF TH E ASSESSEE TO ATTEND THE PROCEEDINGS ON 5/9/2013. IT WAS SUBMITTED BY LD. AR THAT THE STAFF OF INCOME TAX DEPARTMENT WAS ON STRIKE ON THAT DATE AND THEY DID NOT ALLOW THE ASSESSEE TO ENTER THE INCOME TAX OFFICE AND FOR THAT REASON ASSESSEE FAILED TO APPEAR BEFORE LD. CIT(A). LD. AR FURTHER SUBMITTED THAT ON EARLIER OCCASIONS THE ASSESSEE HAD FILED ADJOURNMENT APPLICATIONS AND THERE WAS NO FAILURE O N THE PART OF THE ASSESSEE TO ATTEND THE PROCEEDINGS BEFORE LD. CIT(A). THUS, IT WAS SUBMITTED BY LD. AR THAT APPEAL MAY BE RESTORED BACK TO THE FILE OF LD. CIT( A) WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL FILED BY THE ASSESSEE AFTER GIVING THE A SSESSEE REASONABLE OPPORTUNITY OF HEARING. 3. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY LD. CIT(A). 4. I HAVE HEARD BOTH THE PARTIES AND THEIR CONTENTI ONS HAVE CAREFULLY BEEN CONSIDERED. THE ASSESSEE HAD A REASONABLE CAUSE F OR NON-APPEARANCE BEFORE LD. CIT(A) ON 5/9/2013. SEEING THE SMALLNESS OF THE MAT TER AND IN THE INTEREST OF JUSTICE, I AM OF THE OPINION THAT IT WILL BE APPROP RIATE AND WOULD MEET THE INTEREST OF JUSTICE, IF THE MATTER IS RESTORED BACK TO THE F ILE OF LD. CIT(A) WITH A DIRECTION TO RE- ADJUDICATE THE APPEAL FILED BY THE ASSESSEE AS PER LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. I DIRECT ACCOR DINGLY. ITA NO.986/MUM/2014 (A.Y. 2009-10) 3 5. SINCE I AM RESTORING THIS APPEAL TO THE FILE OF LD. CIT(A) FOR RE-ADJUDICATION AS PER LAW, THEREFORE, I DO NOT EXPRESS ANY OPINION ON THE MERITS OF THE ADDITION WHICH ARE ALSO AGITATED IN THE PRESENT APPEAL AND WILL B E RE-ADJUDICATED BY LD. CIT(A) AS PER THE ABOVE DIRECTIONS GIVEN TO HIM. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 1 ST JULY, 2014. . & +,- /#0 01/07/2014 , & 6 SD/ - (I.P.BANSAL) / JUDICIAL MEMBER MUMBAI; /# DATED : 1 ST JULY 2014. VM. . & $(7 87-( . & $(7 87-( . & $(7 87-( . & $(7 87-(/ COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. $% ! / THE RESPONDENT. 3. 9() / THE CIT, MUMBAI. 4. 9 / CIT(A)-13, MUMBAI 5. 7<6 $(# , , / DR, ITAT, MUMBAI 6. 6= > / GUARD FILE. .# .# .# .# / BY ORDER, %7( $( //TRUE COPY// ? ?? ?/ // /@ A @ A @ A @ A (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI