NIKHIL JADAVJI SALIA,MUMBAI vs. ITO 26 (2)(7), MUMBAI

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ITA 148/MUM/2020Status: DisposedITAT Mumbai25 November 2021AY 2013-144 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the CIT(A) had passed an ex-parte order without giving the assessee an adequate opportunity to be heard. Therefore, the matter was restored to the CIT(A) for fresh adjudication on merits.

What were the facts?

The assessee appealed against the CIT(A)'s order which upheld the AO's decision to treat capital gains as short-term and not consider brokerage expenses. The assessee also contended that the CIT(A) passed an ex-parte order without providing an opportunity to be heard.

What were the issues?

Whether the CIT(A) erred in passing an ex-parte order without providing an opportunity of being heard to the assessee, violating the principle of natural justice.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, VIRTUAL COURT

Before: SHRI C.N. PRASAD, HONBLE

For Appellant: Shri Radha Halbe
For Respondent: Shri Sanjay J. Sethi
Hearing: 14.09.2021Pronounced: 25.11.2021

O R D E R PER C.N. PRASAD (JM) 1. These appeals are filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals) -40, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 23.03.2019 for the A.Y. 2013-14.

2.

Assessee in his appeal for the A.Y. 2013-14 has raised following grounds: - “1 In the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in upholding the contention of the Learned Assessing Officer in treating Capital Gains as Short Term Capital Gain instead of Long Term Capital Loss.

2 ITA.NOs. 148 & 149/MUM/2020 (A.Y: 2013-14) Shri Nikhil Jadavji Salia 2. In the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the action of the Learned Assessing Officer in not considering the Brokerage Expenses of Rs. 60,000/- while determining full value of consideration.

3.

In the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in not providing the opportunity of being heard thereby violating the principle of Natural Justice.

4.

The appellant craves leave to add, alter, delete or modify all or any of the above grounds of appeal. All the above grounds are without prejudice to each other.”

3. At the outset, Ld. Counsel for the assessee submits that the order has been passed by the Ld.CIT(A) exparte without giving opportunity of being heard to the assessee.

4. Ld. DR has no serious objection in remitting the matter back to the Ld.CIT(A).

5. Heard both sides, perused the order of the Ld.CIT(A) and find that the Ld.CIT(A) passed an exparte order and the order passed was also very cryptic. Since the Ld.CIT(A) passed exparte order without providing adequate opportunity of being heard to the assessee, I feel this matter should go back to the Ld.CIT(A) to consider the appeal on merits afresh after providing adequate opportunity of being heard to the assessee.

3 ITA.NOs. 148 & 149/MUM/2020 (A.Y: 2013-14) Shri Nikhil Jadavji Salia Thus, this appeal is restored to the file of the Ld.CIT(A) for Denovo adjudication.

ITA.No. 149/MUM/2020

6.

Assessee in his appeal has raised following grounds: - “(i) In the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in sustaining the penalty of ₹.1,57,775/- u/s.271(1)(c) of the Act.”

7. Since the quantum appeal is restored to the file of the Ld.CIT(A) for Denovo adjudication the penalty appeal is also restored to the file of the Ld.CIT(A) for fresh adjudication.

8.

In the result, both appeals of the assessee are allowed for statistical purpose.

Order pronounced on 25.11.2021 as per Rule 34(4) of ITAT Rules by placing the pronouncement list in the notice board

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