Shri Atul P.Sharedalal, Ahmedabad V. The ACIT.,Circle-3, Ahmedabad

ITA 1050/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9365 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 15-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMIR VAKIL
• Assessee Lawyers: DIPAK SANI
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

ITA NO. 10 50 /AHD/201 3 ASSESSMENT YEAR: 200 8 - 09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD B BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND KUL BHARAT JM ] ITA NO. 10 50 /AHD/ 20 1 3 ASSESSMENT YEAR : 200 8 - 09 ATUL P. SHAREDALAL .. .APPELLANT 506, SAKAR - I, NR. GANDHIGRAM RLY. CRO SSING, NAVRANGPURA, AHMEDABAD. [PAN: A CJPS 9005 Q ] VS. ASSTT. COMMISSIONER OF INCOME TAX .. . RESPONDENT CIRCLE 3, AHMEDABAD. APPEARANCES BY: DIPAK SANI , FOR THE APPELLANT SAMIR VAKIL , FOR THE RESPONDENT D ATE OF CONCLUDING THE HEARING : FEBRUARY 2 6 TH , 201 6 DATE OF PRONOUNCING THE ORDER : FEBRUARY 26 TH , 201 6 O R D E R PER PRAMOD KUMAR AM : 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 5 TH FEBRUARY , 201 3 , PASSED BY THE LD . CIT(A), FOR THE ASSESSMENT YEAR 200 8 - 09 , ON THE FOLLOWING GROUNDS : - YOUR APPELLANT BEING DISSATISFIED WITH THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) PRESENTS THIS APPEAL AGAINST THE SAME ON THE FOLLOWING AMONGST OTHER GROUNDS. 1.0 THE CIT(A) ERRED IN UPHOLDING VALIDITY OF THE ASSESSMENT ORDER. THE ORDER PASSED BY THE ASSESSING OFFICER WAS BAD IN LAW. THE ORDER IS CONTRARY TO THE PROVISIONS OF LAW AND THE FACTS OF YOUR APPELLANT'S CASE. THE ORDER PASSED BY THE LEARNED ASSESSING OFFIC ER BE CANCELLED AND/OR SUITABLY MODIFIED. ITA NO. 10 50 /AHD/201 3 ASSESSMENT YEAR: 200 8 - 09 PAGE 2 OF 3 2.0 THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER HAS GROSSLY VIOLATED PRINCIPLES OF LAW AND THE PROCEDURE OF LAW. THE APPELLANT SUBMITS THAT THE ORDER IS BAD IN LAW AND FURTHER EACH AND EVERY VARIATION TO THE RETURNED INCOME IS CONTRARY TO THE FACTS AND IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND IN DEFIANCE OF THE DECISIONS OF THE HON'BLE SUPREME COURT AND THE HON'BLE HIGH COURT. 2.1 THE APPELLANT SUBMITS THAT THE ASSESSMENT HAS BEEN MADE BY THE ASSESS ING OFFICER WITHOUT AFFORDING ANY REASONABLE OPPORTUNITY OF BEING HEARD AND FURTHER WITHOUT PROVIDING COPIES OF THE MATERIALS, STATEMENTS ETC. 3.0 THE CIT(A) ERRED IN UPHOLDIN G ADDITION OF RS. 1,20,000/ - MADE BY THE ASSESSING OFFICER ALLEGING INCOME DERIV ED BY THE APPELLANT. THE APPELLANT AT THE VERY OUTSET SUBMITS THAT CORRECT AMOUNT IS RS.1,20,OOO/ - AND NOT RS.2,30,989/ - . THE APPELLANT SUBMITS THAT RS.2,30,989/ - WAS AMOUNT FOR THE ASSESSMENT YEAR 2007 - 08. THE APPELLANT THEREFORE WITHOUT PREJUDICE TO OTHE R SUBMISSIONS SUBMITS THAT THE AO OUGHT TO HAVE ADOPTED RS.1,20,000 / - . IT IS SUBMITTED THAT IT BE SO HELD NOW. 3.1 THE APPELLANT SUBMITS THAT THE INCOME OF RS .1,20,000/ - WAS DERIVED BY SHRI ATUL PRAVIN SHAREDALAL (HUF) OUT OF RETAIL BUSINESS CARRIED BY I T. THE APPELLANT SUBMITS THAT THE RETAIL BUSINESS WAS CARRIED ON BY THE HUF AND THE INCOME OF RS.1,20,000/ - WAS CONSIDERED IN COMPUTATION OF THE TOTAL INCOME OF THE HUF. THE APPELLANT SUBMITS THAT HE HAD NOT CARRIED ON ANY RETAIL BUSINESS AND HE HAD DERIVE D NO INCOME AND THEREFORE ADDITION OF RS.1,20,000 / - IS CONTRARY TO THE FACTS. THE ADDITION OF RS.1,20,000 / - BE DELETED. 2. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE ISSUE IN APPEAL IS NOW COVERED, IN FAVOUR OF THE ASSESSEE, BY A CO - ORDINATE BENCH S DECISION IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2007 - 08 IN ITA NO.1078/AHD/2011. VIDE THIS DECISION DATED 7 TH NOVEMBER 2014, THE TRIBUNAL HAS, INTER ALIA, OBSERVED AS FOLLOWS : - 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDER OF TH E AO FRAMING THE ASSESSMENT IN THE HUF CASE OF THE ASSESSEE DATED 25.11.2009, AND ALSO THE ORDER OF THE TRIBUNAL IN THE CASE OF FATHER OF THE ASSESSEE DATED 13.5.2011. WE FIND THAT THE INCOME FROM THE SAME RETAIL BUSINESS COULD NOT BE TAXED TWICE IN THE CA SE OF THE ASSESSEE - INDIVIDUAL AS WELL AS IN THE HANDS OF THE ASSESSEE S HUF. ACCORDINGLY, THE ADDITION MADE BEING UNJUSTIFIED, WE DIRECT THE DELETION OF ADDITION OF RS.2,30,989/ - MADE BY THE AO AND THE GROUNDS OF THE ASSESSEE ARE ALLOWED. 3. WE SEE NO RE ASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE CO - ORDINATE BENCH. ITA NO. 10 50 /AHD/201 3 ASSESSMENT YEAR: 200 8 - 09 PAGE 3 OF 3 4. RESPECTFULLY FOLLOWING THE TRIBUNAL S DECISION DATED 7 TH NOVEMBER 2014 , IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 200 7 - 08 , WE DISAPPROVE THE ORDER OF THE LD . CIT(A) AND ALLOW THE GROUNDS R AISED BY T HE ASSESSEE . 5 . IN THE RESULT, THE APPEAL IS ALLOWED . P RONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF FEBRUARY, 2016 . SD/ - SD/ - KUL BHARAT PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) PBN/* DATED: THE 26 TH DAY OF FEBRUARY , 201 6 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD