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

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.

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.

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.