Shri Yogesh Shantilal Shah, Godhra. V. The ACIT., Cent.Circle-2, Baroda

CO 89/AHD/2005

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6303 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 4 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-08-2011
• Assessment Year: misc
• Appeal Filed On: 05-04-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K GUPTA
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 01/08/2011 DRAFTED ON:01/08 /2011 CO NO.89/AHD/2005 (ARISING OUT OF ITA NO.48/AHD/2005) BLOCK PERIOD ENDING ON 30/11/2000 SHRI YOGESH SHANTILAL SHAH, GEETA NAGAR SOCIETY BAMROLI ROAD, GODHRA VS. THE ACIT, CENTRAL CIRCLE-2 BARODA PAN/GIR NO. : - (CROSS OBJECTOR) .. (RESPONDENT) ASSESSEE BY : SHRI MILIN MEHTA REVENUE BY: SHRI S.K. GUPTA, CIT-D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS CROSS OBJECTION FILED BY THE ASSESSEE IS ARIS ING OUT OF ITA NO.48/AHD/2005 ON THE FOLLOWING GROUNDS:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN FACT AND IN LAW IN UPHOLDING THE VALIDITY OF NOTICE U/S.158BC WHICH IS DEFECTIVE IN ITS FORM AND CONTENTS AND ON THE GROUND OF LIMITATION. IT IS MOST RESPECTFULLY SUBMITTED THAT THE NOTICE I SSUED U/S.158BC OF THE ACT IS DEFECTIVE IN ITS FORM AND CONTENTS AN D THEREFORE THE ENTIRE PROCEEDINGS UNDER CHAPTER XIV-B INITIATED BY THE DEFECTIVE NOTICE IS VOID AB INITIO AND IT MAY BE SO HELD AND THE ASSESSMENT BE ANNULLED. CO NO .89/AHD/2005 (OUT OF ITA NO.48/A/2005) SH.YOGESH SHANTILAL SHAH VS. ACIT BLOCK PERIOD ENDING ON 30-11-2000 - 2 - 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF ASSESSING OF FICER IN ASSUMING JURISDICTION FOR MAKING THE ASSESSMENT U/S.158BC R. W.S. 158BG OF THE INCOME TAX ACT, 1961. IT IS SUBMITTED THAT THE LEARNED ASSESSING OFFICER HAS NO JURISDICTION OVER THE APPELLANT AS THE APPELLANT WAS ASSESSED TO TAX WITH INCOME TAX OFFICER, WARD-1, GODHRA AND JURISDICTION WAS NE VER TRANSFERRED TO THE ASSESSING OFFICER BY FOLLOWING THE PROCEDURE PRESCRIBED U/S.127 OF THE INCOME-TAX ACT, 1961. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN FACT AND IN LAW REJECTING THE CONTENTION OF THE APPELLAN T THAT ORDER U/S.158BC IS PASSED BEYOND THE PERIOD OF LIMITATION AS SPECIFIED U/S.158BE OF THE ACT AND AS AGAINST THE DATE OF LIM ITATION OF 16-4- 2003, THE AO ACTUALLY PASSED THE ORDER ON 4-7-2003 AND THEREFORE BEYOND THE PERIOD OF LIMITATION BY 79 DAYS. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN FACT IN STATING THAT THE APPELLANT HAS ACCEPTED THE EXTENSI ON OF TIME GIVEN BY THE AO TO THE AUDITOR AND THEREBY MENTIONING TH AT THE APPELLANT HAS NOT OBJECTED TO THE SAME AT THE TIME OF ASSESSM ENT. ADDITIONAL GROUND: 4. THE LEARNED ASSESSING OFFICER ERRED IN FACT A ND IN LAW IN LEVYING SURCHARGE ON INCOME TAX U/S.113 OF THE INC OME TAX ACT5, 1961. THE SEARCH WAS CONDUCTED ON 30-11-2000 AND THEREFOR E THE TAXABLE EVEN FOR THE PURPOSE OF CHAPTER XIV-B AND S ECTION 113 HAS HAPPENED ON 30-11-2000. SECTION 113 WAS AMENDE D W.E.F. 1 ST JUNE 2002 AND HENCE SURCHARGE IS NOT LEVIABLE U/S. 113 OF THE INCOME TAX ACT, 1961. 5. YOUR RESPONDENT CRAVES RIGHT TO ADD TO OR ALTER, AMEND SUBSTITUTE, DELETE OR WITHDRAW ALL OR ANY OF THE AB OVE GROUNDS CROSS OBJECTION. CO NO .89/AHD/2005 (OUT OF ITA NO.48/A/2005) SH.YOGESH SHANTILAL SHAH VS. ACIT BLOCK PERIOD ENDING ON 30-11-2000 - 3 - 2. THE LEARNED AUTHORISED REPRESENTATIVE MR.MILIN M EHTA APPEARED AND STATED IN THE COURT THAT DUE TO THE AMENDMENTS AND SEVERAL CHANGES IN LAW ALL THE GROUNDS AS ALSO THE ADDITIONAL GROUN D NEED NOT TO BE CONTESTED. SINCE THE GROUNDS, AS REPRODUCED ABOVE, HAVE NOT BEEN PRESSED BY THE LEARNED AUTHORISED REPRESENTATIVE MR .MILIN MEHTA, THEREFORE, ALL ARE DISMISSED BEING NOT PRESSED. 3. IN THE RESULT, THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 5 TH AUGUST, 2011. SD/- SD/- ( G.D. AGARWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 5/ 8 /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-CONCERNED 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD CO NO .89/AHD/2005 (OUT OF ITA NO.48/A/2005) SH.YOGESH SHANTILAL SHAH VS. ACIT BLOCK PERIOD ENDING ON 30-11-2000 - 4 - 1. DATE OF DICTATION..01/08/2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 01/08/2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S5/8/2011 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 5/8/2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER