MEWALAL GUPTA,MUMBAI vs. ITO 9(1)(4), MUMBAI

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ITA 497/MUM/2018Status: DisposedITAT Mumbai17 September 2018AY 2010-113 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal restored the issue back to the CIT(A) to decide the case on merits after giving the assessee a reasonable opportunity of being heard. This was done in the interest of justice.

What were the facts?

The assessee's appeal was dismissed by the CIT(A) due to non-appearance. The assessee contended that the CIT(A) erred by not considering the merits of the case and that no capital gains arose as there was no transfer of a capital asset.

What were the issues?

Whether the CIT(A) was justified in dismissing the appeal ex-parte without considering the merits of the case, and whether capital gains arose in the year of receiving a new flat in a redevelopment project.

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI

Before: SHRI JOGINDER SINGH & SHRI RAJESH KUMAR

For Respondent: Shri S.K. Beparti, Sr.D.R
Hearing: 06.09.2018Pronounced: 17.09.2018

Per Rajesh Kumar, Accountant Member:

1.

The present appeal has been preferred by the assessee against the order dated 04.04.2017 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2010-11.

2. The grounds raised by the assessee are as under: “1 . T h e L d . C o m m i s s i o n e r o f I n c o m e T a x ( A p p e a l s ) e r r e d i n d i s m i s s i n g t h e Appe llant's appeal mere ly be cause there was no appearance on the Appellant/assessee's behalf. The Ld. CIT(A) ought to have considered the merits of the Appellant's case, on the basis of materials before him.

2.

The Ld. Commissioner of Income Tax (Appeals) failed to consider that there was no capital gain(s), during the year under consideration, since there was no transfer' of any capital asset during the year under consideration.

3.

The Ld. Commissioner of Income Tax (Appeals) was not justified

2 Shri Mewalal Gupta in ignoring the fact that the Appellant had received the new flat in a redevelopment project and there can be no capital gain in the year in which the new residential premises are received by the assessee.

4.

The appellant craves leave to add, alter, amend, modify any grounds of appeal.”

3. The issue raised in ground No.1 is against the order of Ld. CIT(A) dismissing the assessee’s appeal ex-parte due to non appearance by the assessee or his counsel and thus the issue was decided without considering the merit of the case by the CIT(A).

4. After perusing the relevant records as placed before us during the course of hearing and after hearing the Ld. D.R., we are of the opinion that assessee should be given one more opportunity to present his case before the Ld. CIT(A) interest of justice. Accordingly, we are restoring the issue back to the file of the Ld CIT(A) with the direction to decide the same on merit after affording a reasonable opportunity of being heard to the assessee.

5.

In the result, the appeal of the assessee is allowed for statistical purposes.

Order pronounced in the open court on 17.09.2018.

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