SMT. MALA D. JAIN, MUMBAI v. INCOME TAX OFFICER-29(2)(3), MUMBAI

ITA 5098/MUM/2019 | 2012-2013
Pronouncement Date: 11-03-2021 | Result: Allowed

Appeal Details

RSA Number 509819914 RSA 2019
Assessee PAN ADTPJ5519K
Bench Mumbai
Appeal Number ITA 5098/MUM/2019
Duration Of Justice 1 year(s) 7 month(s) 6 day(s)
Appellant SMT. MALA D. JAIN, MUMBAI
Respondent INCOME TAX OFFICER-29(2)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 11-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 11-03-2021
Last Hearing Date 24-02-2021
First Hearing Date 24-02-2021
Assessment Year 2012-2013
Appeal Filed On 05-08-2019
Judgment Text
1 I.T.A. NO.5098/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHA N (ACCOUNTANT MEMBER) I.T.A. NO. 50 98 /MUM/201 9 (ASSESSMENT YEAR : 2012 - 13) SMT. MALA D JAIN 1904/1905 AUTUMAN HAY NEPTUNE LIVING POINT LBS MARG BHANDUP (W) MUMBAI PAN : A DTPJ5519K VS ITO WD.29(2)(3) MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI PRAMOD KUMAR PARIDA AR RESPONDENT BY SHRI SANJAY J SETHI DR DATE OF HEARING 24 - 02 - 2021 DATE OF PRONOUNCEMENT 1 1 - 0 3 - 2021 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DATED 26 - 0 4 - 201 9 OF LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 40 MUMBAI FOR THE ASSESSMENT YEAR 20 1 2 - 1 3 . 2. IN THE PRESENT APPEAL THE ASSESSEE HAS BASICALLY RAISED TWO EFFECTIVE GROUNDS . F IRSTLY CHALLENGING THE EX PARTE DISPOSAL OF THE APPEAL BY LEARNED 2 I.T.A. NO.5098/MUM/2019 COMMISSIONER (APPEALS) AND SECONDLY THE MERITS OF THE ADDITION MADE OF RS.8 38 314/ - AS SHORT TERM CAPITAL GAIN. 3. BRIEFLY THE FACTS ARE THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR U NDER DISPUTE ASSESSEE FILED RETURN OF INCOME ON 10 - 08 - 2013 DECLARING TOTAL INCOME OF RS.5 20 490/ - . IN COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT AS PER THE INFORMATION AVAILABLE ON RECORD THE ASSESSEE HAD ENTERED INTO AN AGREEM ENT FOR PURCHASE AND SALE OF IMMOVABLE PROPERTY DURING THE YEAR . W HEREAS ASSESSEE HAS NOT OFFERED ANY CAPITAL GAIN ON SUCH TRANSACTION. ON THE CONTRARY THE ASSESSEE HAS CLAIMED CAPITAL LOSS OF RS.17 42 342/ - . ON NOTICING THE ABOVE THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO FURNISH THE RELEVANT PURCHASE AND SALE AGREEMENT S AND OTHER DOCUMENTS RELATING TO THE TRANSACTION. ON EXAMINING THE DOCUMENTS FURNISHED BY THE ASSESSEE HE FOUND THAT WHILE THE ASSESSEE HAD PURCHASED THE PROPERTY VIDE AGREEMENT DATED 18 - 06 - 2011 SHE HAS SOLD THE PROPERTY ON 22 - 07 - 2011. THEREFORE HE CONCLUDED THAT THE GAIN DERIVED FROM SALE OF PROPERTY HAS TO BE TREATED AS SHORT TERM CAPITAL GAIN AS AGAINST CLAIM OF LONGTERM CAPITAL GAIN. ACCORDINGLY HE COMPUTED SHORT TERM CAPI TAL GAIN AT RS. 9 86 252/ - ON SALE OF THE PROPERTY AND ADDED BACK AN AMOUNT OF RS.8 30 314/ - BEING ASSESSEES 85% SHARE IN THE SALE CONSIDERATION. ASSESSEE CONTESTED THE AFORESAID ADDITION BEFORE THE FIRST APPELLATE AUTHORITY. HOWEVER LEARNED COMMISSIONER (APPEALS) WHILE DISMISSING THE APPEAL OF THE ASSESSEE UPHELD THE ADDITION. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. IT IS EVIDENT LEARNED COMMISSIONER (APPEALS) HAS DISPOSED OF ASSESSEES APPEAL EX PARTE. THO UGH IN THE IMPUGNED ORDER LEARNED COMMISSIONER (APPEALS) HAS MENTIONED THAT THE ASSESSEE NEVER APPEARED TO REPRESENT HER CASE ON VARIOUS 3 I.T.A. NO.5098/MUM/2019 DATES FIXED FOR HEARING OF THE APPEAL; HOWEVER LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE ASSESSEE HAD NE VER RECEIVED THE NOTICE OF HEARING. WITHOUT ENTERING INTO THE CONTROVERSY AS TO WHETHER THE ASSESSEE HAS RECEIVED THE NOTICE OF HEARING OR NOT THE CAUSE OF JUSTICE WOULD BE BEST SERVED IF THE ASSESSEE GETS AN OPPORTUNITY OF BEING HEARD BEFORE THE FIRST A PPELLATE AUTHORITY TO REPRESENT HER CASE. ACCORDINGLY WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE BACK TO HIS FILE FOR FRESH ADJUDICATION AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GR OUNDS ARE ALLOWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT APPEAL ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 1 1 /0 3 /2021. S D / - S D / - (N.K. PRADHAN) ( SAKTIJIT DEY ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DT : 1 1 /0 3 /2021 PAVANAN COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR ITAT MUMBAI 6. GUARD FILE BY ORDER ASSTT. REGISTRAR ITAT MUMBAI