MICRON BUILDERS,VASHI V. ITO 28(2)(1), VASHI

ITA 5002/MUM/2024

AI Insights

Micron Builders appealed against the order of the CIT(A), which had treated the conveyance of land and building to Micron Park View Co. Op. Housing Society as a sale of property, assessing it under capital gains. The appellant argued that this consideration was already taxed as business income in earlier assessment years, leading to double taxation. The CIT(A) had dismissed the appeal due to non-response from the appellant during the proceedings, which were affected by the COVID-19 pandemic. The tribunal noted the lack of proper representation and the unusual circumstances of the pandemic, leading to the decision to remand the case for a thorough re-examination.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 32247 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 14-11-2024
• Assessment Year: misc
• Appeal Filed On: 26-09-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R.R. MAKWANA
• Assessee Lawyers: SHASHANK MEHTA
• Keywords: Business income; Opportunity of being heard; Capital Gains
• Section: 13

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL Mumbai “D” BENCH, MUMBAI BEFORE SMT. BEENA PILLAI, JUDICIAL MEMBER AND SHRI PRABHASH SHANKAR, ACCOUNTANT MEMBER ITA No.5002/M/2024 Assessment Year: 2015-16 Micron Builders F-11, The Affaires (Mall Area), Plot No.9, Sector-17, Sanpada, Navi Mumbai- 400705. PAN: AARFM8202B Vs. Income Tax Officer Ward- 28(3)(1) VRCCL-316, 4th Floor, Tower No.6, Vashi Station Complex, Vashi, Navi Mumbai- 400703. Appellant : Respondent Present for: Assessee by : Shri Shashank Mehta Revenue by : Shri R. R. Makwana, Sr. DR. Date of Hearing : 14.11.2024 Date of Pronouncement : 22.11.2024 O R D E R Per Beena Pillai, JM: Present appeal filed by the assessee arises out of order dated 31/07/2024 passed by NFAC Delhi/Ld.CIT(A) for assessment year 2015-16 on following grounds of appeal: 1. “The Ld. CIT (A) has completed the appellate proceedings without considering the facts and circumstances of the case, which is contrary to the law and is also against the principles of natural justice. 2. Addition of Rs. 7,44,08,070 Page | 2 ITA No.5002/MUM/2024 Micron Builders ; A. Y2015-16 i. The Ld. CIT (A) has erred in treating the document executed for Conveyance of the land and building in the name of Micron Park View Co. Op. Housing Society by the appellant developer firm as a Sale of Property and assessed the aggregate sale consideration of all units in the building amounting to Rs.7,44,08,070 as sale consideration liable for tax under the head \"Capital Gains\". ii. The Ld. CIT (A) ought to have considered that the amount of Rs.7,44,08,070 representing aggregate sale consideration of the all units in the building is already considered by the appellant developer firm as \"Sales\" under Business Income during AY 2012- 13 & AY 2013-14, resulting in double taxation of the said consideration for taxation. For Micron Builders 3. The Ld. CIT (A) has erred in dismissing the appeal merely on account of non-responding of notices by the appellant during the appellate proceedings, without considering the facts of case and without adjudicating the grounds of appeal on merits. 4. The appellant craves leave to add, alter, amend, modify, substitute or delete all or any of the above grounds of appeal.” 2. At the outset, it is submitted that assessee has not appeared before the Ld.AO as well as before the Ld.CIT(A). It is noted that the proceedings before the authorities below took placed during the covid period and have obvious reason assessee could not have made proper representation of its case. 3. Before the Ld.CIT(A), we noted that the last three notices were issued post Covid period, however, no compliances were made by the assessee. The Ld.AR submitted that in the interest of justice, the issue may be remanded to the authorities below for considering the contentions based on evidences. 4. The Ld.DR though did not support the submissions of the Ld.AR, however, was of the opinion that proper verification of the Page | 3 ITA No.5002/MUM/2024 Micron Builders ; A. Y2015-16 facts deserves to be made as it was a case of reopening of assessment. We have perused the submissions advanced by both sides in the light of the records placed before us. 5. Considering the submissions made by both sides and the observation herein above in the interest of justice we remand the appeal back to the file of Ld.AO to decide the issue raised by the assessee by passing a detailed order on merits. Needless to say that proper opportunity of being heard must be granted to the assessee. Accordingly the grounds raised by the assessee stands allowed. In the result the appeal filed by the assessee stands allowed. Order pronounced in the open court on 22-11-2024. Sd/- Sd/- PRABHASH SHANKAR BEENA PILLAI ACCOUNTANT MEMBER JUDICIAL MEMBER Place: Mumbai, Dated: 22.11.2024 Snehal C. Ayare, Stenographer/ Dragon Copy of the order forwarded to : 1. The Appellant 2. The Respondent 3. Ld.DR, ITAT, Mumbai Page | 4 ITA No.5002/MUM/2024 Micron Builders ; A. Y2015-16 4. Guard File 5. CIT //True Copy// BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai "