Anis Ahmed Miya Mohammed Kapadia, Surat V. The Income Tax Officer, Ward-3(3)(1), Surat

ITA 1397/AHD/2016

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1942 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 25-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS R KAVITHA
• Assessee Lawyers: R N VEPARI
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Reassessment proceedings
• Section: 143(3); 50C; 13; 147; 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL,SURAT BENCH,SURAT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NO.1397/AHD/2016/SRT / ASSESSMENT YEAR: 2008-09 ANIS AHMED MIYA MOHAMMED KAPADIA, 11/900, SINDHIWAD,CHOWK BAZAR, SURAT 395 003. [PAN: ADTPK 8547N] VS. INCOME TAX OFFICER, WARD-3(3)(1), SURAT. ( / APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI R.N. VEPARI, C.A /RESPONDENT BY : MRS. R.KAVITHA, SR. D.R /DATE OF HEARING : 07-03-2018 /DATE OF PRONOUNCEMENT : 13-03-2018 / ORDER PERC.M.GARG, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE HAS BEEN FILED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-3, SURAT (CIT(A) FOR SHORT) DATED 14.03.2016 FOR THE ASSESSMENT YEAR (AY) 2008-09 PASSED IN THE FIRST APPEAL NO.CAS/3/TRFD/V/118/2014-15. 2. THE ASSESSEE HAS CHALLENGED REOPENING OF ASSESSMENT U/S. 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) AND CONSEQUENTLY NOTICE ISSUED U/S. 148 OF THE ACT BY ADJUDICATING THE FOLLOWING GROUNDS : 2 ITA NO.1397/AHD/2016/SRT (A.Y: 2008-09) SHRIANIS AHMED MIYA MOHAMMED KAPADIA 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE QUASHED THE ASSESSMENT ORDER ON REOPENING WHEN THE ASSESSING OFFICER HAD NOT DISPOSED OF THE OBJECTIONS AS REQUIRED BY THE SUPREME COURT IN CASE OF G.K.N. DRIVESHAFTS(259-ITR-19). 2. THE REOPENING IS ALSO BAD IN LAW AS IT HAS BEEN DONE BY INVOKING SECTION 50C AND FOR SUBSTITUTING THE VALUE AS PER STAMP VALUATION AUTHORITIES WHICH IS ONLY AN ESTIMATE. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE REFERRED THE MATTER FOR VALUATION U/S. 50C(2) OF THE ACT. 3. WE HAVE HEARD THE ARGUMENTS OF THE BOTH SIDES, AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE TRIBUNAL. THE LD. ASSESSEES REPRESENTATIVE (AR) SUBMITTED THAT THE LD. CIT(A) OUGHT TO HAVE QUASHED THE ASSESSMENT ORDER ON REOPENING BEING BAD IN LAW AS THE ASSESSING OFFICER (AO) HAS NOT DISPOSED OF THE OBJECTIONS OF THE ASSESSEE BY PASSING A SPEAKING ORDER AS PER DIRECTIONS OF HONBLE SUPREME COURT IN THE CASE OF G.K.N. DRIVESHAFTS (SUPRA). THE LD. AR FURTHER POINTED OUT THAT THE ASSESSEE RECEIVED NOTICE U/S. 148 OF THE ACT DATED 04.09.2012 AND THE ASSESSEE FILED HIS OBJECTIONS TO THE REOPENING ON 28.11.2013 WHICH WERE NOT DISPOSED OF BY THE AO AS PER DIRECTIONS OF HONBLE SUPREME COURT IN THE CASE OF G.K.N. DRIVESHAFTS (SUPRA) . THE LD. AR SUBMITTED THAT ONLY ON THIS GROUND THE REOPENING FOR ASSESSMENT AND REASSESSMENT ORDER PASSED U/S. 143(3) R.W.S 147 OF THE ACT SHOULD BE QUASHED BEING BAD IN LAW. THE LD. AR DREW OUR ATTENTION TOWARDS COPY OF THE ORDER OF HONBLE SUPREME COURT TO SUPPORT HIS CONTENTION. 3 ITA NO.1397/AHD/2016/SRT (A.Y: 2008-09) SHRIANIS AHMED MIYA MOHAMMED KAPADIA 4. REPLYING TO THE ABOVE, THE LD. AR PLACING RELIANCE ON THE RATIO OF THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF VISHWANATH ENGINEERS V. ACIT [2013] 354 ITR 211 (GUJ) SUBMITTED THAT THE AO IN PARA 7 OF THE REASSESSMENT ORDER AS REPRODUCED THE OBJECTIONS OF THE ASSESSEE WHICH HAVE BEEN ADJUDICATED THEREIN. THEREFORE, THERE IS NO FAULT ON THE PART OF THE AO AND IT CANNOT BE ALLOTTED THAT THE AO HAS NOT CONSIDERED THE OBJECTION OF THE AO WHILE PASSING THE IMPUGNED REASSESSMENT ORDER. 5. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSIONS, FIRST OF ALL WE NOTE THAT UNDISPUTEDLY IN RESPONSE TO THE NOTICE U/S. 148 OF THE ACT THE ASSESSEE FILED PETITION TO THE REOPENING ON 28.11.2013, WHICH WERE NOT ADJUDICATED BY THE AO BY PASSING A SPEAKING ORDER PRIOR TO PASSING THE IMPUGNED REASSESSMENT ORDER U/S. 143(3) R.W.S. 147 OF THE ACT. AT THIS JUNCTURE, WE FIND IT PROFITABLE TO TAKE RESPECTFUL COGNIZANCE OF THE DIRECTIONS OF HONBLE SUPREME COURT IN THE CASE OF G.K.N. DRIVESHAFTS (SUPRA), WHICH HAS BEEN FOLLOWED BY THE HON'BLE HIGH COURT OF GUJARAT IN THE CASE OF ARVIND MILLS LTD. V. ACIT 270 ITR 469 (GUJ) WHEREIN THEIR LORDSHIPS SPEAKING FOR THE JURISDICTIONAL HIGH COURT HELD THAT THE AO HAS NOT PASSED A SPEAKING ORDER IN DISPOSING THE ASSESSEES OBJECTIONS AGAINST THE NOTICE U/S. 148 OF THE ACT BEFORE PROCEEDING WITH THE 4 ITA NO.1397/AHD/2016/SRT (A.Y: 2008-09) SHRIANIS AHMED MIYA MOHAMMED KAPADIA REASSESSMENT PROCEEDINGS, HENCE, THE SUBSEQUENT ASSESSMENT ORDER IS BAD IN LAW AND DESERVES TO BE QUASHED. 6. FURTHERMORE, ONGOING THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE PRESENT CASE, WE ARE OF THE CONSIDERED VIEW THAT THE LEGAL ISSUE IN DISPUTE I.E., OBJECTIONS OF THE ASSESSEE TO THE REOPENING OF ASSESSMENT AND NOTICE U/S. 148 OF THE ACT HAS NOT BEEN DISPOSED OF BY THE AO BY PASSING A SPEAKING ORDER BEFORE PROCEEDING WITH THE REASSESSMENT PROCEEDINGS, IS SQUARELY COVERED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF G.K.N. DRIVESHAFTS (SUPRA) AND THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF ARVIND MILLS LTD. (SUPRA). WE ALSO OPENING WITH THE CONTENTION OF THE LD. AO THAT THESE DECISIONS FOLLOWED BY THE ITAT DELHI BENCH IN THE CASE OF ITO V. M.L. CREATIONS IN I.T.A. NO.4009/DELHI/2016 AND IN I.T.A. NO. 2115/DELHI/2016IN THE CASE OF KHUSROIRSHAD V. ITO . ON THE BASIS OF FOREGOING DISCUSSION, WE ARE INCLINED TO HOLD THAT IN THE PRESENT CASE THE REASSESSMENT ORDER DATED 30.01.2014 PASSED U/S. 143(3) R.W.S. 147 OF THE ACT BEING BAD IN LAW DESERVES TO BE QUASHED ON ACCOUNT OF NON- DISPOSAL OF OBJECTIONS OF ASSESSEE DATED 28.11.2013 AND WE QUASH THE SAME. SINCE, WE HAVE ALREADY QUASHED THE REASSESSMENT ORDER IN THE EARLIER PART OF THIS ORDER, HENCE, IT IS NOT NECESSARY TO ADJUDICATE UPON THE GROUNDS ON MERITS. 5 ITA NO.1397/AHD/2016/SRT (A.Y: 2008-09) SHRIANIS AHMED MIYA MOHAMMED KAPADIA 7. IN THE RESULT,THE APPEAL OF THE ASSESSEE IS ALLOWED ON LEGAL GROUND. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 13 TH MARCH, 2018. / SURAT ; DATED :13 TH MARCH, 2018 EDN / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A)-3,SURAT; 4. PR. CIT - III , SURAT ; 5 . , , / DR, ITAT, SURAT; 6 / GUARD FILE. / BY ORDER, // TRUE COPY // / ASSISTANT REGISTRAR , / ITAT, SURAT SD/ - SD/ - ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) / JUDICIAL MEMBER