Income Tax Appellate Tribunal - Mumbai
Maya L. Noronha, Mumbai vs Department Of Income Tax on 8 October, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL
"B" Bench, Mumbai
Before Shri D. Manmohan, Vice President
and Shri Sanjay Arora, Accountant Member
ITA No. 4083/Mum/2009
(Assessment Year: 2005-06)
Income Tax Officer - 19(2)(4) Mrs. Maya L. Noronha
Room No. 310, 3rd Floor Vs. Villa Zinda, St. Francis Avenue
Piramal Chambers, Lalbaug Santacruz (W), Mumbai 400054
Parel, Mumbai 400012 PAN - AACPM1583B
Appellant Respondent
Appellant by: Shri Durgesh Sumrott
Respondent by: Shri Hitesh M. Shah
Date of Hearing: 08.10.2013
Date of Pronouncement: 08.10.2013
ORDER
Per D. Manmohan, V.P. This is an appeal filed at the instance of the assessee and it pertains to A.Y. 2005-06.
2. There are five grounds in all, the main issue being computation of capital gains referable to income received on surrender of tenancy rights.
3. Vide order dated 28th January, 2011 the ITAT "B" Bench, Mumbai set aside the issue to the file of the AO. The AO, in turn, passed an order under section 143(3) r.w.s. 254 of the Act and in the order dated 27.12.2007 allowed the claim of the assessee. In other words, as per the original assessment order the capital gain was treated as Nil but under the head 'Income from Other Sources' a sum of `84,19,788/- was treated as casual and non-recurring income and another sum of `4,42,068/- was added under section 68 of the Act. In the order dated 29.12.2011, pursuant to the direction by the Tribunal, the AO accepted that the assessee has provided details for substantiating her claim of surrender of tenancy and long term capital gain on the same and accordingly computed the net long term capital gain at `9,25,202/-. Consequently the addition of `84,19,788/- made under 2 ITA No. 4083/Mum/2009 Mrs. Maya L. Noronha the head 'Other sources' was deleted and the AO has also deleted the addition of `4,42,068/- originally made under section 68 of the Act. However, on 11.07.2012 the Revenue moved a miscellaneous application under the signatures of the same AO, who has passed the consequential order, stating that the ITAT has not considered ground No. 3 in the appeal while restoring the matter to the file of the AO. Accordingly the Tribunal restored the matter for the limited purpose of disposing of ground No. 3 and thus the issue is placed before us.
4. At the time of hearing the learned counsel for the assessee submitted that disposal of ground No. 3 at this juncture would be of academic nature since the AO has already deleted the addition in the order passed under section 143(3) r.w.s. 254 of the Act and hence no useful purpose will be served at this stage by considering the issue afresh. It was also submitted that the AO made these disallowances without providing an opportunity to the assessee and the records available with the AO really shows that the cash-in-hand in the Balance Sheet of Express Garments as on 31.03.2004 was `4,42,068/- and hence without reconciling the figures properly the AO has made the impugned addition. Having regard to the circumstances the learned CIT(A) deleted the addition. At any rate, while passing an order under section 143(3) r.w.s. 254 of the Act, the AO himself deleted the said addition and hence Revenue's appeal, in so far as ground No. 3 is concerned, is academic.
5. On the other hand, the learned D.R. submitted that the issue having not been dealt with in the first round of litigation before the Tribunal the AO ought to have awaited the final decision of the Tribunal before passing an order under section 143(3) r.w.s. 254 of the Act.
6. We have carefully considered the rival submissions and perused the record. It is not in dispute that the AO verified all facts and upon satisfaction with regard to the cash-in-hand available, the impugned addition was deleted and hence the decision on this issue at this stage would be of academic importance. We, therefore, reject ground No. 3 of Revenue, since the order passed by the AO merely substantiate the reasons 3 ITA No. 4083/Mum/2009 Mrs. Maya L. Noronha given by the learned CIT(A) in the impugned order. Under these circumstances ground No. 3 of the Revenue is dismissed.
Order pronounced in the open court on 8th October, 2013.
Sd/- Sd/-
(Sanjay Arora) (D. Manmohan)
Accountant Member Vice President
Mumbai, Dated: 8th October, 2013
Copy to:
1. The Appellant
2. The Respondent
3. The CIT(A) - XIX, Mumbai
4. The CIT- X, Mumbai City
5. The DR, "B" Bench, ITAT, Mumbai
By Order
//True Copy//
Assistant Registrar
ITAT, Mumbai Benches, Mumbai
n.p.