AVINASH B. JAISING, MUMBAI V. ACIT-5(1), MUMBAI

ITSSA 4/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9843 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 16-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI AMARJIT SINGH , JM IT(SS) NO. 4 / MUM/20 18 ( ASSESSMENT YEAR : BLOCK PERIOD 01/04/1989 TO 16/11/1999 ) SHRI AVINASH B JAISING 301, EMINENTE - 1 17 TH ROAD, KHAR (W) MUMBAI 400 052 VS. ACIT 5(1), 525 5 TH FLOOR, AAYKAR BHAVAN M.K. ROAD, MUMBAI 400 020 PAN/GIR NO. AABOJ8049D ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY SHRI VIRAJ MEHTA REVENUE BY SHRI CHAITANYA ANJARIA DATE OF HEARING 04 / 09 /201 8 DATE O F PRONOUNCEMENT 24 / 09 / 201 8 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE EXPARTY ORDER OF CIT(A) - 10 MUMBAI DATED 31/03/2017 FOR THE BLOCK PERIOD 01/04/1989 TO 16/11/1999, IN THE MATTER OF ORDER PA SSED U/S.158 BC(C) R.S.W.254 OF THE IT ACT 1961. 2. IN THIS APPEAL, ASSESSEE IS AGGRIEVED BY EXPARTY ORDER OF CIT(A) PASSED WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE. IT WAS ALSO BROUGHT TO OUR NOTICE BY LEARNED AR THAT THE CIT (A) ERRED IN NOT CONSIDERIN G THAT, THE SHORT TERM CAPITAL LOSS OF RS. 5 , 18 , 74 , 499 / - IS ALLOWABLE TO BE SET - OFF AND WERE ALSO CONSIDERED AS 'ALLOWED ' IN BOTH THE CASE OF THE APPELLANT'S FATHER - SHRI BANSI J. JAISING AND BROTHER MR. RAVI B. JAISING AND BEING THE IT(SS) NO.4/MUM/2018 SHRI AVINASH B JAISING 2 IDENTICAL & COMMON F ACTS IN ALL THE THREE CASES, THE SIMILAR VIEW NATURALLY HAST TO BE ADOPT ED , EVEN O N THE GROUND OF NATURAL JUSTICE. 3. GROUND NO.5 WAS NOT PRESSED BY LEARNED AR. THE SAME IS THEREFORE DISMISSED IN LIMINI AS NOT PRESSED. 4. WE HAVE CONSIDERED RIVAL CONTENTIO NS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT AO HAS NOT ALLOWED SETTING OFF OF SHORT TERM CAPITAL LOSS OF RS.5,18,74,499/ - , WHILE ARRIVING AT NET TAXABLE INCOME OF THE ASSESSEE. 5. LEARNED AR DRAWN OUR ATTENTION TO THE O RDER PASSED BY SAME CIT(A) IN THE CASE OF FATHER OF THE ASSESSEE SHRI BANSI JAIRAMDAS JAISING AND BROTHER RAVI B. JAISING, WHEREIN UNDER IDENTICAL FACTS, THE ISSUE WAS ALLOWED BY CIT(A). 6. LEARNED AR ALSO INVITED OUR ATTENTION TO THE ORDER OF THE TRIBUNA L DATED 31/07/2007 IN THE CASE OF SHRI BANSI JAIRAMDAS JAISING AND RAVI B. JAISING, WHEREIN ON SIMILAR FACTS , LOSS COMPUTED FOR ASSESSMENT YEARS WAS ALLOWED TO BE SET OFF AGAINST THE PROFITS IF ANY OF REMAINING PREVIOUS YEARS FALLING WITHIN THE IMPUGNED BL OCK PERIOD. 7. FROM THE ORDER OF THE CIT(A) WE OBSERVE THAT AT PAGE 2, HE HAS MENTIONED VARIOUS DATES ON WHICH NOTICE WAS ISSUED, BUT NOBODY WERE PRESENT ON BEHALF OF THE ASSESSEE. THE PRECISE OBSERVATION OF CIT(A) WAS AS UNDER: - T HE DETAILS OF THE POSTING OF THE CASE AND THE RESPONSE OF THE ASSESSEE ARE AS UNDER: - IT(SS) NO.4/MUM/2018 SHRI AVINASH B JAISING 3 DATE OF NOTICE DATE OF HEARING DATE OF SERVICE REMARKS 01/00/2014 21/00/2014 08/08/2014 CASE ADJOURNED TO 10/09/2014 AS PE* ASSESSES REQUEST. ASSESSEE NOT ATTEND. ADJOURN ED 18/09/2014 AS PER ADJ. LETTER NONE APPEARED. 27/10/2014 18/11/2014 01/11/2014 NONE APPEARED. 20/01/2015 30/01/2015 -- NOTICE RETURNED FROM POSTAL AUTHORITIES. 06/02/2015 23/02/2015 14/02/2015 SERVED ON THE ASSESSEE BY SPEED POST NONE ATTENDED. 27/01/2016 16/02/2016 -- NOTICE RETURNED FROM POSTAL AUTHORITIES. 11/05/2016 31/05/2016 -- NON APPEARED 09/08/2016, 23/08/2016 10/08 /2016 NOTICE HANDED OVER TO THE ASSESSEE ON 10/08/2010. 07/11/2016 18/11/2016 -- NOTICE R ETURNED FROM POSTAL AUTHORITIES - WILH REMARK 'LEFT', 7/3/2017 22/3/2017 - NONE ATTENDED TILL PASSING THIS ORDER. 2. SINCE THERE WAS NO RESPONSE FROM THE APPELLANT TO REP R ESENT ITS CASE DESPITE SEVERAL OPPORTUNITIES PROVIDED AS ABOVE AND NO DETAILS W ERE FILED, IT IS PRESUMED THAT - - THE APPELLANT IS NOT INTERESTED IN PURSUING THE APPEAL. - THE APPELLANT HAS NOTHING TO SAY ON THE ADDITIONS/DISALLOWANCES MADE BY THE AO, - THE APPELLANT HAS NO OBJECTION EVEN IF THE APPEAL IS DISMISSED AND ADDITIONS/DISAL LOWANCES CONFIRMED. 2,1. IT IS HELD IN VARIOUS DECISIONS THAT NOT ONLY THE APPEAL COULD BE FILED BY THE APPELLANT IT SHOULD ALSO BE PURSUED EFFECTIVELY FOR ITS PROSECUTION. IN THIS REGARD RELIANCE IS ALSO PLACED ON THE FOLLOWING DECISIONS - I. MULTIPLAN IN DIAN P LTD., 30 ITD 320, HAT DELHI. IT(SS) NO.4/MUM/2018 SHRI AVINASH B JAISING 4 II. ESTATE OF LATE TUKOJIRAO HOLKAR, 223 ITR 480, (MP) ACCORDINGLY, THE ADDITIONS/DISALLOWANCES MADE BY THE AO ARE CONFIRMED AND GROUND DISMISSED. 8. IN PARA - 2, CIT(A) OBSERVED THAT ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL AND THAT ASSESSEE HAS NOTHING TO SAY ON THE ADDITIONS / DISALLOWANCE MADE BY THE AO. THEREAFTER, FOLLOWING THE DECISION IN THE CASE OF MULTIPLAN INDIA PVT. LTD., 30 ITD320 AND ESTATE OF LATE TUKOJIRAO HOLKAR, 223 ITR 480 , THE APPEAL FI LED BY THE ASSESSEE WAS DISMISSED IN LIMINI AS NOT MAINTAINABLE. 9. CONSIDERING THE FACT THAT SIMILAR ISSUE HAS BEEN DECIDED BY CIT(A) IN FAVOUR OF THE FATHER AND BROTHER OF THE ASSESSEE AS STATED ABOVE, WHEREIN IDENTICAL FACTS WERE PREVAILING, THEREFORE, IN THE INTEREST OF JUSTICE, WE RESTORE THE APPEAL BACK TO THE FILE OF THE CIT(A) FOR DECIDING THE APPEAL ON MERIT AFTER CONSIDERING HIS OWN DECISIONS IN THE CASE OF FATHER AND BROTHER OF THE ASSESSEE AND ALSO THE ORDER OF THE TRIBUNAL DATED 31/07/2007 AS REFERRED BY LEARNED AR. WE DIRECT ACCORDINGLY. 10. IN THE RESULT, AP PEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 / 09 /201 8 SD/ - ( AMARJIT SINGH ) SD/ - (R.C .SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 24 / 09 /201 8 KARUNA SR. PS IT(SS) NO.4/MUM/2018 SHRI AVINASH B JAISING 5 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITA T, MUMBAI 6. GUARD FILE. //TRUE COPY//