MR. JITEN P. MODI, MUMBAI v. THE ITO 16(2)(1),

ITA 1717/MUM/2008 | 2004-2005
Pronouncement Date: 21-05-2010 | Result: Partly Allowed

Appeal Details

RSA Number 171719914 RSA 2008
Bench Mumbai
Appeal Number ITA 1717/MUM/2008
Duration Of Justice 2 year(s) 2 month(s) 11 day(s)
Appellant MR. JITEN P. MODI, MUMBAI
Respondent THE ITO 16(2)(1),
Appeal Type Income Tax Appeal
Pronouncement Date 21-05-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted J
Tribunal Order Date 21-05-2010
Date Of Final Hearing 12-01-2012
Next Hearing Date 12-01-2012
Assessment Year 2004-2005
Appeal Filed On 10-03-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI B. RAMAKOT AIAH (AM) ITA NO.1717/MUM/2008 ASSESSMENT YEAR : 2004-05 MR. JITEN P. MODY 111/A PARADISE APARTMENT 44 NAPEANSEA ROAD MUMBAI-400 036. ..( APPELLANT ) P.A. NO. (AACPM 9567 E) VS. INCOME TAX OFFICER-16 (2)(1) MATRU MANDIR MUMBAI . ..( RESPONDENT ) APPELLANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI RA JNEESH ARVIND O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 31.12.2007 PASSED BY THE LD. CIT(A) FOR T HE ASSESSMENT YEAR 2004-05. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE AN INDIVIDUAL DERIVES INCOME FROM BUSINESS CAPITAL GAINS AND OTHER SOURCES. THE RETURN WAS FILED DECLARING TOTAL INCOME AT RS.3 19 420/-. HOWEVER THE ASSESSMENT WAS COMPLETED VIDE ASSESSMENT ORDER DA TED ITA NO.1717/M/08 A.Y:04-05 2 29.12.2006 PASSED U/S.143(3) AT AN INCOME OF RS.25 66 10 0/- AS UNDER :- INCOME FROM HOUSE PROPERTY RS. 6 00 000/- INCOME FROM BUSINESS RS. 37 658/- INCOME FROM SHORT TERM CAPITAL GAINS ON SALE OF PLOTS 13 72 799/- INCOME FROM SHORT TERM CAPITAL GAINS ON SALE OF SHARES 5 54 523/- RS.19 27 322/- INCOME FROM OTHER SOURCES RS. 1 120/- TOTAL RS.25 66 100/- 3. ON APPEAL THE LD. CIT(A) IN THE ABSENCE OF ANY COM PLIANCE ON THE FINAL DATE OF HEARING PASSED EXPARTE ORDER. THE LD. CIT(A) WHILE CONFIRMING THE ADDITION OF SHORT TERM CAPITAL GAIN ON SALE OF PLOTS RS.13 72 799/- ALLOWED THE SHORT TERM CAPITAL LOSS ON S ALE OF SHARES RS.3 14 651/- AND DIRECTED THE ASSESSING OFFICER TO REVISE THE INCOME FROM HOUSE PROPERTY AS PER GUIDELINES GIVEN IN HIS ORD ER AND ACCORDINGLY PARTLY ALLOWED THE APPEAL. 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE VA LIDITY OF EXPARTE ORDER PASSED BY THE LD. CIT(A) AND SUSTENANCE OF ADDITIO N MADE BY THE ASSESSING OFFICER AND ALSO LEVY OF INTEREST. 5. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSE SSEE AT THE OUTSET SUBMITS THAT ON THE LAST DATE OF HEARING THE ASSE SSEES REGULAR CHARTERED ACCOUNTANT SHRI ASHOK TRIPATHI LOST HIS CLO SE RELATIVE AND HAD TO GO OUT OF BOMBAY AND COULD NOT REMAIN PRESENT TO ASSIST MR. ITA NO.1717/M/08 A.Y:04-05 3 SHASHI TULSIYAN WHO WAS APPEARING BEFORE HIM TO REPRESE NT THE ASSESSEES CASE. IN SUPPORT HE ALSO PLACED ON RECORD THE AFF IDAVIT OF THE ASSESSEE DATED 7.5.2010 AND CERTIFICATE OF SHRI ASHOK TRIPATHI CHARTERED ACCOUNTANT. HE ALSO MADE PRAYER UNDER RULE 2 9 OF THE APPELLATE TRIBUNAL RULES 1963 FOR ADMISSION OF ADDITI ONAL EVIDENCE APPEARING AT PAGE-71 TO 170 OF THE ASSESSEE'S PAPER BOOK . HE THEREFORE SUBMITS THAT IN THE INTEREST OF JUSTICE THAT ISSUES RAISED IN THE APPEAL MAY BE RESTORED BACK TO THE LD. CIT(A) FOR DECIDING THE SAME AFRESH. 6. ON THE OTHER HAND THE LD. DR WHILE RELYING ON TH E ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(A) SUBMITS THAT HE HAS NO OBJECTION IF THE MATTER IS SET ASIDE TO THE FILE OF THE LD. CIT(A) . 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER CO NSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND MERIT IN THE SUB MISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THERE WAS A REASONAB LE CAUSE FOR NON-APPEARANCE BEFORE THE LD. CIT(A) ON THE LAST DATE OF HEARING ON 27.12.2007. THIS BEING SO AND KEEPING IN VIEW THAT T HE ASSESSEE MADE A PRAYER FOR ADMISSION OF ADDITIONAL EVIDENCE WH ICH GOES TO THE ROOT OF THE MATTER WE AFTER ADMITTING THE SAME CONSID ER IT FAIR AND REASONABLE THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD GO BACK TO ITA NO.1717/M/08 A.Y:04-05 4 THE FILE OF THE LD. CIT(A) AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) ON THIS ACCOUNT AND SEND BACK THE MATT ER TO HIS FILE WHO SHALL DECIDE THE SAME AFRESH IN THE LIGHT OF OUR OB SERVATION HEREINABOVE AND ACCORDING TO LAW AFTER PROVIDING REASO NABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THE GROUND S TAKEN BY THE ASSESSEE ARE THEREFORE PARTLY ALLOWED FOR STATISTICAL PUR POSES. 8. IN THE RESULT ASSESSEE'S APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.5.2010. SD/- SD/- (B. RAMAKOTAIAH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 21.5.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI. ITA NO.1717/M/08 A.Y:04-05 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 12.5.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 13.5.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 21.5.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 24.5.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER