Shri Shantinath Jain Dehrasar, Surat V. The ACIT, Circle-2(1)(1), Surat

ITA 128/AHD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94492 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-09-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 12-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANITA HARDASANI
• Assessee Lawyers: RASESH SHAH
• Keywords: Source of fund
• Section: 143(3); 12A; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: S H RI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER SHRI SHANTINATH JAIN DEHRASAR, C/O SHRI RAMESHBHAI P. JHAVERI, 81/1500, PANNA RUPA APT., MALI FALIA, GOPIPURA, SURAT - 3950004 (APPELLANT) VS THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE - 2(1)(1), SURAT (RESPONDENT) REVENUE BY : S MT. ANITA HARDASANI , SR. D . R. ASSESSEE BY: S H RI RASESH SHAH , A.R. DATE OF HEARING : 10 - 09 - 2 015 DATE OF PRONOUNCEMENT : 30 - 09 - 2 0 15 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2006 - 07 , AR ISES FROM ORDER OF THE CIT(A) - 3, SURAT DATED 08 - 12 - 2014 IN APPEAL NO. CAS - I T A NO . 128 / A HD/20 15 A SSESSMENT YEAR 200 6 - 07 I.T.A NO. 128 /AHD/20 15 A.Y. 2006 - 07 PAGE NO SHRI SHANTINATH JAIN DEHRASAR VS. ACIT 2 3/TRFD / II/74/2014 - 15 , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TA X ACT, 1961; IN SHORT THE ACT . 2. THERE ARE TWO SUBSTANTIVE GROUNDS RAISED IN THIS APPEAL. THE FIRST ONE CHALLENGES VALIDITY OF THE IMPUGNED REOPENING TAKEN RECOURSE TO BY THE ASSESSING OFFICER AND UPHELD IN THE LOWER APPELLATE ORDER. THE SECOND SUB STANTIV E GROUND CHALLENGES THE CIT(A) S ORDER AFFIRMING ASSESSING OFFICER S ACTION IN ASSESSING THE ASSESSEE AS AN AOP ON THE GROUND THAT IT WAS NOT KNOWN WHETHER THIS TRUS T ENJOYED REGISTRATION TILL A.Y. 2006 - 07 . 3. THE ASSESSEE IS A TRUST ESTABLISHED ON 16 - 01 - 1953 REGISTERED WITH THE ASSISTANT CHARITY C OMMISSIONER, BARODA. IT FILED ITS RETURN ON 12 - 07 - 2008 SHOWING NIL INCOME. THE ASSESSING OFFICER FORMED REASONS TO BELIEVE THAT THE ASSESSEE S INCOME LIABLE TO BE ASSESSED HAD ESCAPED ASSESSMEN T. PA GE 12 OF THE CASE FILE CONTAINS THE ASSESSING OFFICER S REASONS ON VERIFICATION OF AIR INFOR MATION OBTAINED FROM ITD NOTICE THAT THE ASSESSEE HAD PAID A SUM OF RS. 9,50,000/ - FOR ACQUIRING BONDS DURING THE FINANCIAL YEAR 2005 - 06 RELEVANT TO THE IMPUGNED AS SESSMENT YEAR. HE TOOK COGNIZANCE OF THE FACT THAT THE ASSESSEE HAD NOT FILED RETURN OF INCOME A.Y. 2006 - 07 AND ITS SOURCE OF INVESTMENT OF RS . 9,50,000/ - REMAINED UNEXPLAINED. 4. WE FIND FROM THE CASE FILE THAT THE ASSESSING OFFICER TOOK UP REASSESSME NT. THE ASSESSEE FILED ITS REPLY ON 23 - 12 - 2013 EXPLAINING SOURCE OF FUND S THAT RS. 5, 08,334/ - HAD ARISEN FROM BOND S MATURITY I.T.A NO. 128 /AHD/20 15 A.Y. 2006 - 07 PAGE NO SHRI SHANTINATH JAIN DEHRASAR VS. ACIT 3 AMOUNT AND RS. 4,41,666/ - WAS ITS ACCUMULATED INCOME. THE ASSESSING OFFICER FRAMED REASSESSMENT ON 28 - 02 - 2014 OBSERVING THAT THE ASSESSEE HAD FAILED TO PLACE ON RECORD ITS CERTIFICATE OF REGISTRATION U/S. 12A OF THE ACT. THE ASSESSEE HAD SUBMITTED TO HAVE APPLIED FOR A FRESH REGISTRATION BEFORE THE CIT, SURAT SINCE ITS EARLIER REGISTRATION CERTIFICATE HAD BEEN MISPLACED. THE ASSES SING OFFICER REJECTED THIS PLEA AND HELD IT AS AN UNREGISTERED INSTITUTION THEREBY ASSESSING IT AS AN AO P QUA INCOME OF RS. 3,58,977/ - . 5 . THE ASSESSEE PREFERRED APPEAL CHALLENGING VALIDITY OF REOPENING AND ALSO ITS ASSESSMENT AS AN AOP FOR WANT OF SECT ION 12A REGISTRATION. THE CIT(A) REJECTS BOTH THESE ARGUMENTS. 6 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE CASE FILE. IT HAS COME ON RECORD THAT THE ASSESSING OFFICER RECORDED REASON OF REOPENING QUA SOURCE OF ASSESSEE S INVE STME NT AMOUNTING T O RS. 9,50,000/ - AS UNEXPLAINED . THE ASSESSEE EXPLAINED ITS SOURCE (SUPRA). THERE IS NO DISPUTE THAT THE ASSESSING OFFICER DID NOT MAK E ANY ADDITION QUA THIS SOLITARY REASON OF REOPENING. T HE HON BLE BOMBAY HIGH COURT IN CIT VS. JET AIRWAYS (2011) 331 I TR 236 (BOM) OBSERVES THAT IF AFTER ISSUING SECTION 148 NOTICE AS ASSESSING OFFICER ACCEPTS THE AS SESS EE S CONTENTION AND HOLD S T HAT THE INCOME WHICH HAS INITIA LLY FORMED REASONS TO BELI E VE HAD ESCAPED ASSESSMENT, HAS A MATTER OF FACT NOT ESCAPED ASSESSMEN T , IT IS NOT OPEN FOR HIM TO INDEPEND ENT LY ASSESS SOME OTHER INCOME. IF HE INTENDS TO DO SO, A I.T.A NO. 128 /AHD/20 15 A.Y. 2006 - 07 PAGE NO SHRI SHANTINATH JAIN DEHRASAR VS. ACIT 4 FRESH NOTICE U/S. 148 OF THE ACT WOULD BE NECESSARY. THE REVENUE FAILS TO POINT OUT ANY DISTINCTION ON FACTS AND LAW. WE ACCEPT ASSESSEE S LEGAL GROUND ACCORD INGLY CHALLENGING VALIDITY OF THE IMPUGNED REOPENING. THIS RENDERS ITS ARGUMENTS ON MERITS RELATING TO REGISTRATION ISSUE RESULTING IN ASSESSMENT AS AN AOP INFRUCTUOUS. 7 . THIS ASSESSEE S APPEAL IS ALLOWED. ORDER PR ONOUNCED IN THE OPE N C OURT ON 30 - 09 - 2015 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUN T ANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 30 /09 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,