Henrietta Pereira, Mumbai vs Assessee
- CitationITA No. : 5633/Mum/2011
Ratio decidendi
The rule this decision rests on
The Tribunal, having found that the first appellate authority had not adjudicated on the merits of the assessee's grounds (other than the validity of reopening under section 148), held that where the first appellate authority has omitted to decide the merits of the appeal, the appropriate course is to set aside its order and restore the matter to it for fresh adjudication on the merits and on the legality of the reopening, affording the assessee reasonable and adequate opportunity of being heard.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
ITA No. : 5633/Mum/2011 (Assessment year: 2002-03) Smt. Henrietta Pereira, Vs ACIT(OSD)- 26(1), B-602, Vintage Co-op. Soc., K G Mittal Ayurvedic College & I.C. Colony, Next to Citizen Credit Hospital Building, 6th Floor, Bank, Borivali (West), Charni Road (West), Mumbai -400 103 Mumbai -400 002 ःथयी लेखा सं.:PAN: AKUPP 5344 E अपीलाथ (Appellant) ू यथ (Respondent) Appellant by : Shri K Gopal & Ms Neha Paranjpe Respondent by : Shri Love Kmar
सुनवाई क# तार%ख /Date of Hearing : 08-01-2015 घोषणा क# तार%ख /Date of Pronouncement : 13-02-2015
आ दे श ORDER
ी िववेक वमा , या स: PER VIVEK VARMA, JM:
The appeal is filed by the assessee against the order of CIT(A) 28, Mumbai, dated 24.01.2011, wherein, the following grounds have been taken:
"Ground No. 1: AGAINST REOPENING THE ASSESSMENT BY RELYING ON BASELESS AND UNSUSTAINABLE REASONS.
(a) The Commissioner of Income-tax (Appeals) - 28, Mumbai [hereinafter referred to as "CIT(A)"] has erred in sustaining initiation of the reassessment proceedings, though the same were initiated on the basis of the reasons (recorded), which have i) neither been discussed or adjudicated upon in the assessment order; ii) nor did they result in assessment of any "escaped" income.
(b) Your appellant humbly submits that the action of reopening the assessment was void ab-initio, as the 2 Smt. Henrietta Pereira ITA 5633/M/2011
reasons recorded for same were baseless and no income is even assessed in the reassessment proceedings on account of those reasons.
(c) Your appellant, hence, prays that the reopening of assessment on the basis of unsustainable reasons be quashed as void ab-initio.
Ground No. 2: AGAINST ENHANCING ASSESSED INCOME BY DENYING EXEMPTION OF Rs. 500,000/- U/S.10(10C) OF THE ACT, WHICH WAS ALLOWED BY THE ASSESSING OFFICER.
(a) The CIT (A) has erred in continuing with enhancement of income by way of denying exemption of Rs. 500,000/- under section 10(10C) of the Act, available to the appellant, without issuing any notice for such enhancement. For this purpose, the CIT(A) has merely observed that he is in agreement with the decision of his predecessor without considering the submissions made before him.
(b) Your appellant respectfully submits that the CIT (A) could not deny exemption under section 10(I0C) of the Act allowed by the AO without issuing notice of enhancement.
(c) Your appellant, therefore, prays that exemption of Rs. 500,000/-, available to the appellant under 10(I0C) and allowed by the AO, be restored.
Ground No. 3: AGAINST HOLDING THAT EXEMPTIONS UNDER SECTIONS 10(I0B) AND Section 10(10C) ARE NOT ALLOWABLE SIMULTANEOUSLY
(a) The CIT(A) has erred in upholding the decision of his predecessor that sections 10(10B) and 10(10C) cannot be applied simultaneously by simply stating that he agrees with that decision, although the AO has stated in his remand report that "The assessee is entitled to the deduction u/s. 10(10B) of the Act in addition to the deduction u/s. 10(10C) of the I.T. Act, 1961".
(b)Your appellant, therefore, prays that exemption under sections 10(10B) and 10(10C) be held as allowable to appellant, as she satisfies the conditions of both these sections.
Ground No. 4: LEAVE TO ADD, ALTER AND/OR AMEND THE GROUNDS OF APPEAL Your appellant requests for leave to add, alter and/or amend the Grounds of Appeal, if so required".
2. At the time of hearing, the AR mentioned that except for the reopening issue, the CIT(A) has not adjudicated on merits. He, therefore, pleaded that the case be restored.
3. The DR relied on the orders of the revenue authorities.
4. We have heard the contentions and from the perusal of the impugned order, we find that the CIT(A) has not adjudicated the 3 Smt. Henrietta Pereira ITA 5633/M/2011
merits, which were part and parcel of reopening and appeal on merits.
5. In such a case, we are of the opinion that the case be restored to the CIT(A) for fresh adjudication.
6. We, therefore, set aside the order of the CIT(A) and direct the CIT(A) to pass the order afresh on merits as well as legality of reopening u/s 148. We may observe that for passing the order on the appeal, the CIT(A) shall accord reasonable and adequate opportunity to the assessee.
7. In the result, the appeal is treated as allowed for statistical purposes.
Order pronounced in the open Court on 13th February, 2015.
(आर.
आर. सी.
सी. शमा ) (िववेक वमा ) Sd/- Sd/-
लेखा सदःय याईक सदःय (R C SHARMA) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Date: 13th February, 2015
ूित/Copy to:-
1) अपीलाथ /The Appellant.
2) ू यथ /The Respondent.
3) The CIT(A) -28, Mumbai.
5) .वभागीय ूितिनिध "यॅच", आयकर अपीलीय अिधकरण, मुब
4) The CIT-26, Mumbai/CIT -26, Mumbai.
ं ई/ The D.R. "H" Bench, Mumbai.
6) गाड2 फाईल Copy to Guard File.
आदे शानुसार/By Order / / True Copy / / उप/सहायक पंजीकार आयकर अपीलीय अिधकरण, मुबं ई Dy./Asstt. Registrar I.T.A.T., Mumbai
*च हान व.िन.स *Chavan, Sr.PS
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