Smt. Leelaben S.Patel, Ahmedabad V. The Dy.CIT.,Cent.Circle-1(1), Ahmedabad

CO 133/AHD/2009

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8188 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-01-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 06-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Assessee Lawyers: P M MEHTA
• Keywords: Opportunity of being heard
• Section: 143(3); 234B; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBE R ITA NO.1695/AHD/2009 A.Y.2003-04 WITH C.O. NO.133/AHD/2009 THE D.C.I.T., CENTRAL CIRCLE-1 (1), AHMEDABAD (DEPARTMENT) VS. SMT. LEELABEN S. PATEL, 147/76, BAPANO CHORA, JETALPUR, TAL. DASKROI, DIST.-AHMEDABAD PAN-AOXPP5817K (ASSESSEE) DEPARTMENT BY : SHRI Y.P. VERMA, SR. D.R. ASSESSEE BY : SHRI P.M. MEHTA, A.R. DATE OF HEARING : 07.01.2013 DATE OF PRONOUNCEMENT : 24.01.2013 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER THESE APPEAL OF THE REVENUE AND C.O. OF THE ASSESSE E ARE AGAINST THE ORDER OF LD. CIT(A)-III, AHMEDABAD DATED 13.02. 2009. 2. AT THE TIME OF HEARING, C.O. WAS TAKEN UP FIRST AS THE ISSUE OF JURISDICTION WAS RAISED BY THE ASSESSEE IN THE C.O. BY TAKING FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) ERRED IN REJECTING THE ASSESSEES CONTENTION THAT I T IS NOT AT ALL A FIT CASE FOR INVOKING THE PROVISIONS OF SECTION 153C R. W.S. 153A. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) SHOULD HAVE APPRECIATED THAT NO INCRIMINATING MATER IAL OR ANY UNDISCLOSED ASSET WAS FOUND AT ALL FOR ANY OF THE S IX ASSESSMENT ITA NO.1695/AHD/2009 A.Y.2003-04 WITH C.O. NO.133/AHD/2009 2 YEARS PRIOR TO THE DATE OF SEARCH AND HENCE THE A.O . WAS NOT JUSTIFIED IN REOPENING THE ASSESSMENTS OF ANY OF TH ESE YEARS BY INVOKING THE PROVISIONS OF SECTION 153C/153A. 3. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE THE CIT(A) SHOULD HAVE REALIZED THAT THERE IS NO INCRIMINATING MATERIAL OR UNDISCLOSED ASSET FOUND AT ALL FOR ANY OF THE SIX ASSESSMENT YEARS PRIOR TO THE DATE OF SEARCH AND HE NCE THE A.O. SHOULD HAVE NOT FRAMED THE ASSESSMENT ORDER(S) U/S 153C R.W.S. 153A. 4. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE THE CIT(A) SHOULD HAVE REALIZED THAT THE ASSES SING OFFICER WAS NOT JUSTIFIED IN EMBARKING UPON THE PROCESSING AND SCRUTINY OF THE ASSESSMENT IN A FASHION WHICH WAS PERMISSIBLE U /S 143(3) BUT IN THIS PARTICULAR CASE IT WAS NOT PERMISSIBLE U/S 153C R.W.S. 153A. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN NOT ACCEPTING THE ASSESSEES PLEA THAT IT WAS NOT AT ALL A FIT CASE FOR LEVY INTEREST U/S 234A & 234B OF THE I.T. ACT. 3. LD. COUNSEL OF THE ASSESSEE, AT THE OUTSET, SUBM ITTED THAT ASSESSEE BELONGS TO SANJAY R. SAHA AND MEGHMANI GROUP OF COM PANY WHEREIN A SEARCH OPERATION U/S 132 OF THE I.T. ACT WAS CONDU CTED BY ISSUING A WARRANT OF AUTHORIZATION U/S 132 OF THE ACT ON 26.0 9.2005. HE FURTHER SUBMITTED THAT IN OTHER CASES OF THE GROUP ON IDENT ICAL FACTS THE ISSUE OF JURISDICTION HAS BEEN RESTORED BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION AS THE SAME WAS NOT ADJUDICATED BY HIM DESPITE THE FACT THAT SPECIFIC GROUND IN RESPECT OF JURISDICTION WAS TAKE N BY ASSESSEE IN THOSE CASES. FOR MAKING THIS SUBMISSION HE PLACED RELIAN CE ON THE DECISION OF THE ITAT, AHMEDABAD RENDERED IN IT(SS)A NO.100 TO 1 07/AHD/2010 IN THE CASE OF SHRI HARSHADKUMAR H PATEL & OTHERS VS. D.C. I.T. ON THE OTHER HAND, LD. D.R. RELIED ON THE ORDER OF LD. CIT(A). ITA NO.1695/AHD/2009 A.Y.2003-04 WITH C.O. NO.133/AHD/2009 3 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD AND THE CASE LAWS CITED BY LD. COUNSEL OF THE ASSESSEE, WE FIND THAT IN THE CASE OF SHRI HARSHADKUMAR H PATEL & OTHERS VS. D.C.I.T., ON IDEN TICAL FACTS THE ISSUE OF JURISDICTION HAS BEEN RESTORED BACK TO THE FILE OF LD. CIT(A) BY OBSERVING AS UNDER:- WE FIND THAT ASSESSEE HAD CHALLENGED JURISDICTION AS WELL AS VALIDITY OF THE INITIATION THE ASSESSMENT ORDER PAS SED BY ASSESSING OFFICER U/S 153A/153C. IT IS THE CONTENTION OF LD. AR THAT ADMITTEDLY NO SEARCH OPERATION WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE AND NO DOCUMENT WAS RECOVERED FROM THE PREMISES OF THE ASSESSEE. WE FIND THAT LD. CIT(A) HAS NOT D ECIDED THIS ISSUE DESPITE A SPECIFIC GROUND RAISED BY THE ASSES SEE AND THE OBSERVATION OF LD. CIT(A) IS THAT THE CONSTITUTIONA L VALIDITY OF PROVISIONS OF SECTION 153A/153C OF THE ACT WAS CHAL LENGED AND ANY GROUND OF APPEAL CHALLENGING THE CONSTITUTIONAL VALIDITY OF THE FORMING THE PROVISIONS. WE FIND THAT LD. CIT(A) HAS NOT DECIDED THIS ISSUE OF HIS JURISDICTION AND VALIDITY OF ASSE SSMENT DESPITE THE FACT THAT OF SPECIFIC GROUND HAD BEEN RAISED BY THE ASSESSEE. IN VIEW OF THIS MATTER, IN THE INTEREST OF JUSTICE, WE REMIT BACK THIS MATTER TO LD. CIT(A) TO DECIDE AFRESH AFTER PROVIDI NG REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN VIEW OF THE ABOVE, THE MATTER IS RESTORED BAC K TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION AFTER PROVIDING ADEQU ATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE C.O. OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE. I.T.A. NO.1695/AHD/2009 7. IN VIEW OF OUR DECISION IN THE C.O., THE APPEAL FILED BY THE REVENUE IS ALSO ALLOWED FOR STATISTICAL PURPOSE FOR FRESH ADJU DICATION BY THE LD. CIT(A) AFTER DECIDING THE ISSUE OF JURISDICTION, RAISED BY THE ASSESSEE, IF SO REQUIRED. ITA NO.1695/AHD/2009 A.Y.2003-04 WITH C.O. NO.133/AHD/2009 4 8. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSE. 9. IN THE COMBINED RESULT, C.O. OF THE ASSESSEE AS WELL AS THE APPEAL FILED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PU RPOSE. ORDER PRONOUNCED IN OPEN COURT ON 24.01.2013 SD/- SD/- (A. K. GARODIA) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY N.K. CHAUDHARY, SR. P.S. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# *