SATISH CHANDRA SRIVASTAV,MUMBAI vs. ACIT RG 11(3), MUMBAI

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ITA 4001/MUM/2013Status: DisposedITAT Mumbai20 February 2017AY 2006-074 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal set aside the ex-parte order of the CIT(A) and remanded the case to the Assessing Officer. The AO was directed to provide the assessee with a due opportunity of being heard to substantiate their claims regarding additions made under Section 69 and Section 68.

What were the facts?

The assessee, a practicing advocate, declared a total income of Rs. 14,14,333/- for AY 2006-07. The case was selected for scrutiny, and additions were made by the Assessing Officer. The assessee argued that insufficient time was provided and the CIT(A) order was ex-parte.

What were the issues?

Whether the assessee was provided with a reasonable opportunity of being heard by the Assessing Officer and the CIT(A). Whether the additions made under Section 69 and Section 68 were justified without proper substantiation.

Which sections of the Income-tax Act were involved?

Section 69,Section 68,Section 143(1),Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCHES “E”, MUMBAI

Before: Shri Joginder Singh, & Shri N.K. Pradhan

For Appellant: Ms. Keyuri Desai, Shri B.S. Bist-DR
Hearing: 20/02/2017

आदेश / O R D E R

Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 25/02/2013 of the Ld. First Appellate Authority, Mumbai. The first ground i.e. 1(a) and (b) relates to section 69 of the Income Tax Act, 1961 (hereinafter the Act). The crux of argument on behalf of the assessee by Ms. Keyuri Desai, is that the addition was made hastily as only two days time was provided to the assessee, therefore, reasonable opportunity of being heard was not provided. It was also explained that even the impugned order is also an ex-parte order. On the other hand, the ld. DR, Mr. B.S. Bist, strongly defended the addition made by the Assessing Officer and confirmed by the Ld. Commissioner of Income Tax (Appeal) by contending that the assessee did not appear before the CIT(A) in spite of opportunities provided to the assessee.

2.

We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee is a practicing advocate, derives income from profession and also from other sources. The assessee declared total income of Rs.14,14,333/- for the impugned Assessment Year, voluntarily, on 31/10/2006. The return was processed u/s 143(1) of the Act. The case of the assessee was selected for scrutiny and finally the assessment was framed u/s 143(3) of the Act. Without going into much deliberation, since, a little time was provided by the Assessing Officer to substantiate the claim and even an ex-parte order was passed by the Ld. Commissioner of Income Tax (Appeal), we are of the view that no person should be condemned unheard. Even otherwise, the mandate of the Constitution of India is to levy and collect due taxes only, therefore, keeping in the view the principle of natural justice, we set-aside the ex-parte order of the Ld. Commissioner of Income Tax (Appeal) and sent the ground to the file of the Assessing Officer with a direction to provide due opportunity of being heard to the assessee to substantiate his claim, thus, this ground is allowed for statistical purposes.

3.

So far as, the addition of Rs.3,53,779/- made u/s 68 of the Act is concerned, the ld. counsel for the assessee took identical plea as has been raised in the ground to the effect that the impugned amount merely represents profit on sale of units of mutual funds purchase in the past, being long term capital gains/short term capital gains. On the other hand, the Ld. DR defended the additions. The crux of the argument on behalf of the assessee is also that proper opportunity was not provided to the assessee. Considering the totality of facts and the argument from rival side, we set aside this ground also to the file of the Ld. Assessing Officer to examine the factual matrix and further provide due opportunity of being heard to the assessee to substantiate his claim. The ld. Assessing Officer is directed to decide the issue in accordance with law, thus, this ground is also allowed for statistical purposes.

Finally, the appeal of the assessee is allowed for statistical purposes only.

1.

This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 20/02/2017.

Sd/- Sd/- (N.K. Pradhan) (Joginder Singh) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य / JUDICIAL MEMBER मुंबई Mumbai; �दनांक Dated : 20/02/2017 f{x~{tÜ? P.S /�नजी स�चव

आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to :

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