NIRANJAN J. SHAH, MUMBAI V. ACIT CEN CIR-25, MUMBAI

ITSSA 1/MUM/2009

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9481 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-08-2013
• Assessment Year: misc
• Appeal Filed On: 13-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DENIAL
• Assessee Lawyers: K SHIVARAM
• Keywords: Share purchase agreement; Opportunity of being heard; Additional evidence; Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI . . , ! , ' # BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER ( ) : 1 / / 2009 A.YS. 01.04.1995 -24.01.2002 IT(SS)A NO. 1/MUM/2009 BLOCK PERIOD 01.04.1995 TO 24.01.2002 SHRI NIRANJAN J. SHAH, 202, VANDANA APARTMENT, JANKI KUTIR, VILE PARLE (WEST), MUMBAI -400 056 .: PAN: ABOPS 2111 D VS ASST. COMMISSIONER OF INCOME TAX- CIRCLE 25, MUMBAI ' (APPELLANT) #$' (RESPONDENT) APPELLANT BY : SHRI K. SHIVARAM RESPONDENT BY : DR. DENIAL % & ' ( /DATE OF HEARING : 26-08-2013 )* ' ( / DATE OF PRONOUNCEMENT : 28-08-2013 & O R D E R ! , : PER VIVEK VARMA, JM: THE APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF T HE LD. CIT(A), CENTRAL-5, MUMBAI DATED 25.11.2008, WHEREIN, THE ASSE SSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THE LEARNED CIT(APPEALS), CENTRAL V, MUMBAI HA S ERRED IN ASSESSING/RETAINING THE SEIZED SHARES VALUED AT RS. 10,09,46,800/- IN THE HANDS OF YOUR APPELLANT MR. NIRANJAN J. SHAH IN THE BLOCK ASSESSMENT FOR THE PERIOD 01.04.1995 TO 24.01.2002. SHRI NIRANJAN J. SHAH IT(SS)A NO. 1/M/2009 2 2. THE LEARNED CIT(APPEALS), CENTRAL V, MUMBAI HAS ERRED IN NOT GRANTING PROPER OPPORTUNITY TO YOUR APPELLANT TO PROVE THE O WNERSHIP OF SUCH SHARES OF THE ASSOCIATES/FRIENDS/RELATIVES TO WHOM SUCH SHARES BELONG. 3. THE LEARNED CIT(APPEALS), CENTRAL V, MUMBAI HAS ERRED IN NOT ADMITTING ADDITIONAL EVIDENCES IN TERMS OF RULE 46 A TO YOUR APPELLANT. 2. THE FACTS ARE THAT, THERE WAS A SEARCH BY NARCOTIC S CONTROL BUREAU, MUMBAI ON MR. GOPAL R. AULLIYA, WHEREIN CERTAIN SHARE CERTIFICATES BELONGING TO THE ASSESSEE AND HIS FAMILY MEMBE RS WERE FOUND. AS PER THE INFORMATION RECEIVED FROM NARCOTICS CONTR OL BUREAU, THE SHARES WERE REQUISITIONED BY THE REVENUE DEPARTMEN T AND PROCEEDINGS U/S 158BC WAS INITIATED ON MR. GOPAL R. AULLIYA. SINCE THE SHARES WERE FOUND FROM THE POSSESSION OF MR. GOPAL R. AULLIYA PERTAINING TO THE ASSESSEE AND THE FAMILY MEMBERS, PROCE EDINGS U/S 158BD WERE INITIATED AGAINST THE ASSESSEE. AS A CONSEQUE NCE ASSESSMENT U/S 158BD DATED 30.11.2007 WAS FRAMED. 3. AGAINST THIS, THE ASSESSEE APPROACHED THE CIT(A), WHERE IN, THE ASSESSEE PRAYED TO PRODUCE CERTAIN EVIDENCE IN SUPPORT OF HIS CONTENTIONS WITH REGARD TO THE SHARES FOUND FROM MR. GOP AL R. AULLIYA AND AN APPLICATION UNDER RULE 46A OF I.T. RULES, 1962 WAS M OVED. DESPITE THIS, THE CIT(A), AS SUBMITTED BY THE AR, DID NOT GR ANT OPPORTUNITY TO PROVE THE OWNERSHIP OF THOSE SHARES. 4. AS PER THE GROUNDS OF APPEAL FILED BEFORE US, IN GROUNDS NO. 2 & 3, THE ASSESSEE IS AGITATING THAT THE CIT(A) HAD NOT PROV IDED ADEQUATE OPPORTUNITY TO EXPLAIN HIS CASE, INSPITE OF THE FACT THAT, AN APPROPRIATE EVIDENCE WAS PRODUCED BEFORE HIM UNDER RULE 46 OF THE I. T. RULES. THE GROUNDS, AS RAISED, CANNOT BE IGNORED, SINCE THE ASSESSEE HAS NOT BEEN PROVIDED WITH THE APPROPRIATE OPPORTUNITY OF BEING HEARD. WE, IN THE INTEREST OF JUSTICE, RESTORE THE CASE TO THE FILE OF THE CI T(A), WHO SHALL EXAMINE THE EVIDENCE AS PRODUCED UNDER RULE 46A AND AS CLAIMED BY THE ASSESSEE, NEEDLESS TO SAY THAT ADEQUATE AND PROPE R OPPORTUNITY IS GIVEN TO THE ASSESSEE TO REPRESENT THE MATTER. WE, THE REFORE, SET ASIDE THE ORDER OF CIT(A) FOR DE NOVO ADJUDICATION. SHRI NIRANJAN J. SHAH IT(SS)A NO. 1/M/2009 3 5. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH AUGUST, 2013. SD/- SD/- ( . . ) ( ! ) (R.S. SYAL) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 28 TH AUGUST, 2013 #/ COPY TO:- 1) ' / THE APPELLANT. 2) #$' / THE RESPONDENT. 3) . & ( ) CENTRAL V MUMBAI / THE CIT (A)-CENTRAL-V MUMBAI. 4) . & CENTRAL -II , MUMBAI / THE CIT CENTRAL -II , MUMBAI, 5) / 0 #1 , ( 1 , 2% & / THE D.R. B BENCH, MUMBAI. 6) 0 3 4 % COPY TO GUARD FILE. 5 & / BY ORDER / / TRUE COPY / / [ 6 / 7 ( 1 , 2% & DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI *9: . . * CHAVAN, SR. PS