Case Law Details
Bipin Amratlal Shah Vs ACIT (ITAT Mumbai)
ITAT find that ld.CIT(A) has taken up the appeal after three years of filing of the appeal and within a very short span of time has dismissed the appeal for non-persecution. The only reason to uphold the order of AO mentioned by the ld.CIT(A) is that no submission was made before him by the assessee. We find that the above is a non speaking, non reasoned and cryptic order, not sustainable in law. As a matter of facts, the income tax Act in section 251 of the I.T.Act dealing with the power of ld.CIT(A) does not provide for any power to the ld.CIT(A) to dismiss the appeal for non-prosecution. In these facts, we are of the considered opinion that the matter needs to be remitted to the file of ld.CIT(A) to give the assessee, an opportunity of being heard and thereafter, decide the appeal as per law by a speaking order. Ld. Counsel of the assessee agreed with the above proposition and undertook to cooperate with ld. CIT(A) when the matter is remanded.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
This appeal by the assessee is directed against the order of learned Commissioner of Income Tax (Appeals)-53, dated 27.05.2019 and pertains to assessment year 2013-14.
2. Grounds of appeal read as under:-
1. In the facts and circumstances of the case and in law, the learned Commissioner of Income Tax(Appeals)-53, Mumbai has erred in confirming disallowance of Rs. 11,14,309/- u/s. 14A of the Income Tax Act, 1961.
2. In the facts and circumstances of the case and in law, the learned Commissioner of Income Tax(Appeals)-53, Mumbai has erred in confirming disallowance of interest on car loan of Rs. 1,93,267/-
3. In the facts and circumstances of the case and in law, the learned Commissioner of Income tax(Appeals)-53, Mumbai has erred in confirming ad hoc disallowance of following expenses merely on surmises and conjectures.
| Sr.No. | Head of Expenses | Amount debited in P&L Account | % of Disallowance | Amount Disallowed |
| 1 | Motor Car Expenses | 28,052 | 20% | 5,610 |
| 2 | Depreciation on BMW car | 4,86,805 | 20% | 97,361 |
| 3 | Petrol Expenses | 40,225 | 20% | 8,045 |
| 4 | Car Insurance | 62,595 | 20% | 12,519 |
| Total | 1,23,535 | |||
4. In the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)-53, Mumbai has erred in confirming the taxability of Long Term Capital Gain of Rs. 33,37,227/- in respect of sale of agricultural land. It is prayed that the land transferred was a rural agricultural land which is not a capital asset u/s. 2(14) of the Act and hence there is no taxable capital gains on its transfer.
3. Brief facts of the case are that assessment order in this case was passed u/s. 143(3) of the Act on 23.04.2016. In the assessment order AO made disallowances and addition as under:-
| Disallowance u/s. 14A | Rs. 11,14,309/- |
| Disallowance of interest on car loans | Rs. 1,93,267/- |
| Disallowances of expenses | Rs. 1,23,535/- |
| Addition from capital gain | Rs. 6,20,564/-. |
4. Against the above order, assessee appealed before the ld.CIT(A). Appeal was filed on 23.04.2016. The ld.CIT(A) fixed the case for haring on 22.03.2019. Thereafter, noting that assessee sought adjournment, he proceeded to hold that assessee has not made any submission in respect of the grounds of appeal till date being 27.05.2019. Hence, he held that “in these facts, the grounds of appeal are dismissed off without providing any further opportunity”. Thereafter, ld.CIT(A) repeated that AO’s order and held that since assessee has not filed any submissions/ evidence in support of the ground, the grounds raised by the assessee are dismissed.
5. Against the above order, assessee is in appeal before us.
6. We have heard both the parties and perused the records. We find that ld.CIT(A) has taken up the appeal after three years of filing of the appeal and within a very short span of time has dismissed the appeal for non-persecution. The only reason to uphold the order of AO mentioned by the ld.CIT(A) is that no submission was made before him by the assessee. We find that the above is a non speaking, non reasoned and cryptic order, not sustainable in law. As a matter of facts, the income tax Act in section 251 of the I.T.Act dealing with the power of ld.CIT(A) does not provide for any power to the ld.CIT(A) to dismis the appeal for non-prosecution. In these facts, we are of the considered opinion that the matter needs to be remitted to the file of ld.CIT(A) to give the assessee, an opportunity of being heard and thereafter, decide the appeal as per law by a speaking order. Ld. Counsel of the assessee agreed with the above proposition and undertook to cooperate with ld. CIT(A) when the matter is remanded
7. In the result, this appeal by the assessee stands allowed for statistical purposes.
Pronounced in the open court on 13.04.2022.
