Jayshbhai Mathurbhai Patel, Ahmedabad V. The ITO, Ward-4(2)(2), Ahmedabad

ITA 1011/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8560 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 22-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CHHAJAD
• Keywords: Reopening of assessment; Search and seizure; Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S. S. GODARA, JUDICIAL MEMBER) ITA. NOS: 1011 & 1012/AHD/2016 (ASSESSMENT YEARS: 2007-08 & 2008-09) JAYESHBHAI MATHURBHAI PATEL 16, SHYONA BUNGLOWS-II GHATLODIYA, AHMEDABAD V/S INCOME TAX OFFICER, WARD- 4 (2)(2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ABUPP6107D APPELLANT BY : SHRI M.S. CHHAJAD, AR RESPONDENT BY : SHRI PRASOON KABRA, SR. D.R. ( )/ ORDER DATE OF HEARING : 02 -04-201 8 DATE OF PRONOUNCEMENT : 04 -04-2018 PER N.K. BILLAIYA, ACCOUNTANT MEMBER 1. ITA NOS. 1011 & 1012/AHD/2016 ARE TWO SEPARATE APPE ALS BY THE ASSESSEE PREFERRED AGAINST TWO SEPARATE ORDERS OF THE LD. CI T(A)-4, AHMEDABAD DATED 23.02.2016 PERTAINING TO A.YS. 2007-08 & 2008-09. ITA NOS. 101 1 & 1012/AHD/2016 . A.YS. 2007- 08 & 2008-09 2 2. VIDE ADDITIONAL GROUNDS OF APPEAL, THE ASSESSEE HAS CHALLENGED THE ORDER OF THE LD. CIT(A) CLAIMING THAT THE A.O. HAS NOT PROVIDED THE DOCUMENT NOR COPY OF STATEMENT WHICH WAS RELIED UPON FOR REOPENING OF TH E ASSESSMENT. NO OPPORTUNITY FOR CROSS-EXAMINATION WAS PROVIDED AND THEREFORE THE LD. CIT(A) ERRED IN UPHOLDING THE ACTION OF THE A.O. 3. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORI TIES BELOW. WE FIND THAT DURING THE COURSE OF THE SEARCH AND SEIZURE PROCEED INGS, CERTAIN DOCUMENTS WERE SEIZED AND ON THE BASIS OF THE SEIZED MATERIAL , THE A.O. CAME TO KNOW THAT THE ASSESSEE HAS MADE SOME CONTRIBUTION TOWARDS PUR CHASE OF SOME LAND. THE A.O. FORMED A BELIEF THAT THE ASSESSEE HAS PAID ON MONEY FOR LAPAKAMAN LAND AS HIS SHARE. THE WHOLE TRANSACTION ACCORDING TO TH E A.O. IS REFLECTED IN THE SEIZED MATERIAL WHICH WAS CORROBORATED IN THE STATE MENT OF SHRI GOVINDBHAI PRAJAPATI AND IS ALSO ACCEPTED BY ONE OF THE PARTNE RS SHRI VIJAY PRAJAPATI . 4. ON THE STRENGTH OF THIS, THE ASSESSMENT WAS REOPENE D AND THE ADDITIONS WERE MADE. 5. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) A ND VEHEMENTLY CONTENDED THAT NEITHER THE COPIES OF THE SEIZED DOCUMENT WERE FURNISHED NOR COPY OF STATEMENT WERE PROVIDED ON WHICH RELIANCE WAS PLAC ED FOR REOPENING OF ASSESSMENT. THE LD. CIT(A) WAS NOT CONVINCED WITH T HE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ACTION OF THE A.O. 6. IN OUR CONSIDERED OPINION, NO DOUBT THE ASSESSING O FFICER IS FREE TO MAKE ENQUIRIES AND COLLECT EVIDENCES TO FRAME THE ASSESS MENT. BUT, AT THE SAME TIME, THE ASSESSING OFFICER SHOULD NOT USE ANY EVIDENCE A GAINST THE ASSESSEE UNLESS ITA NOS. 101 1 & 1012/AHD/2016 . A.YS. 2007- 08 & 2008-09 3 HE HAS BEEN GIVEN A REASONABLE OPPORTUNITY TO DEFEN D HIS CASE. WE FIND THAT THE ACTION OF THE A.O. IS IN VIOLATION OF THE PRINCIPLE S OF NATURAL JUSTICE INASMUCH AS NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE AND THE AS SESSMENT WAS REOPENED. 7. IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE DEEM I T FIT TO RESTORE THE MATTER TO THE FILES OF THE A.O. THE A.O. IS DIRECTED TO PROVIDE COPIES OF THE DOCUMENTS AND THE STATEMENTS TO THE ASSESSEE WHICH WERE USED AGAI NST HIM AND AFFORD A REASONABLE OPPORTUNITY OF BEING HEARD AND DECIDED T HE ISSUE AFRESH AS PER THE PROVISIONS OF THE LAW. 8. IN THE RESULT, BOTH THESE APPEALS ARE TREATED AS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 04 - 04- 20 18 SD/- SD/- (S. S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 04/04/2018 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD