Shri Ratilal Chhotalal Patel, Ahmedabad V. The Income tax Officer,Ward-13(3), Ahmedabad

ITA 1416/AHD/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1816 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 04-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JHA
• Assessee Lawyers: ANIL N SHAH
• Keywords: Business income; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND D. C. AGRAWAL , AM) ITA NO.1416/AHD/2009 A. Y.: 2005-06 RATILAL CHHOTALAL PATEL, 8/A, PRATAPKUNJ SOCIETY, VASNA, AHMEDABAD VS THE INCOME TAX OFFICER, WARD- 13(3), NATURE VIEW BUILDING, B/H TIMES OF INDIA, ASHRAM ROAD, AHMEDABAD PA NO. ABAPP 7885 R (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ANIL N. SHAH, AR RESPONDENT BY SHRI S. K. JHA, SR. DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE LEARNED CIT(A)-XXI, A HMEDABAD DATED 05-01-2009 FOR ASSESSMENT YEAR 2005-06 ON THE FOLLO WING CONCISE/EFFECTIVE GROUNDS: 1. AN ORDER IS BAD IN LAW AND LIABLE TO BE QUASHED . 2. THE LD. AO HAVE ERRED IN LAW AND ON FACTS IN MAKING THE ADDITION OF SHORT TERM CAPITAL GAIN OF RS.1,91,185 (RS.1,19,351 + RS.71,834) UNDER THE HEAD BUSINESS INCOME AND THE HONBLE CIT(A)-XXI, AHMEDABAD HAVE ERRED IN LAW AND ON FACTS IN CONFIRMING THE SAME. 3. THE LD. AO HAVE ERRED IN LAW AND ON FACTS IN MAKING THE ADDITION OF RS.24,949 (OUT OF RS.119351) SHORT TERM CAPITAL GAIN AND RS.14,700 (OUT OF RS.88193) LONG TERM CAPITAL GAIN THOUGH ITA NO.1416/AHD/2009 RATILAL CHHOTALAL PATEL VS ITO W-13(3), AHMEDABAD 2 PROFIT FOR THE SAME HAVE ALREADY BEEN COVERED WHILE FURNISHING THE REVISED RETURN, RESULTING IN DUPLICA TION OF PROFIT/ADDITION IN ASSESSMENT FOR THE SAME SALE TRANSACTIONS ALREADY COVERED AND HONBLE CIT(A)- XXI, AHMEDABAD HAVE ERRED IN LAW AND ON FACTS IN CONFIRMING THE SAME. 4. THE LD. AO HAVE ERRED IN LAW AND ON FACTS IN MAKING THE ADDITION OF RS.20,000/- WHICH WAS DEPOSITED BY WAY OF CASH IN THE BANK ACCOUNT AND THE HONBLE CIT(A)-XXI, AHMEDABAD HAVE ERRED IN LAW AND ON FACTS IN CONFIRMING THE SAME. 5. YOUR APPELLANT CRAVES A LEAVE TO ADD, AMEND OR ALTER THE GROUNDS OF APPEAL, IF OCCASION DEMANDS. 2. THE IMPUGNED ORDER REVEALED THAT THE LEARNED CIT (A) BRIEFLY NOTED THAT THE ASSESSEE FILED WRITTEN SUBMISSION ON ALL THE GROUNDS OF APPEALS AND THEREAFTER NOTED CERTAIN PARA OF THE AS SESSMENT ORDER AND THEREAFTER THE LEARNED CIT(A) HELD AS UNDER: I HAVE CAREFULLY STUDIED THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER ON 28.12.2007. HE H AS PASSED A VERY GOOD ASSESSMENT ORDER. I HAVE SEEN THE DETAILED SUBMISSION DATED 20.11.2008 FILED BY THE APPELLANT, WHICH WAS ALREAD Y IN THE FILE, SO ON 05.01.2009 THE LD. COUNSEL FOR THE APPELLANT HAS ONLY EXPLAINED THE DETAILS. AFTER CAREFUL STUDY OF THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AN D THEE WRITTEN SUBMISSIONS FILED BY THE LD. COUNSEL F OR THE APPELLANT, I AM INCLINED TO AGREE WITH THE ASSESSIN G OFFICER, I FULLY APPROVE THE ASSESSMENT ORDER PASSE D BY HIM ON 28.12.2007 IN 10 PAGES AND THE SAME IS HEREB Y CONFIRMED. 3. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE ARE OF THE VIEW ITA NO.1416/AHD/2009 RATILAL CHHOTALAL PATEL VS ITO W-13(3), AHMEDABAD 3 THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEV EL OF THE LEARNED CIT(A). THE LEARNED CIT(A) IS REQUIRED AS PER SECTI ON 250 (6) OF THE IT ACT TO MENTION THE POINTS FOR DETERMINATION AND DECISION THEREOF AND THE REASONS FOR THE DECISION. THE LEARNED CIT (A) DID NOT RECORD THE FACTS IN THE APPELLATE ORDER AND HAS NOT TAKEN CARE TO NOTE DOWN THE SUBMISSIONS OF THE ASSESSEE. THE LEARNED CIT(A) ALSO FAILED TO PASS ANY REASONED ORDER ON MERIT CONSIDERING THE FA CTS OF THE CASE IN THE LIGHT OF THE SUBMISSIONS OF THE ASSESSEE. THE L EARNED CIT(A) MERELY AGREED WITH THE ORDER OF THE AO WITHOUT GIVI NG REASONS FOR DECISION. SUCH ORDER OF THE LEARNED CIT(A) CANNOT B E SUSTAINED IN LAW. WE ACCORDINGLY, SET ASIDE THE ORDER OF THE LEA RNED CIT(A) AND RESTORE THE SAME TO HIS FILE WITH DIRECTION TO RE-D ECIDE THE APPEAL OF THE ASSESSEE BY GIVING REASONABLE SUFFICIENT OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. THE LEARNED CIT(A) SHALL PAS S A REASONED ORDER ON MERIT BY GIVING REASONS FOR DECISION IN TH E APPELLATE ORDER. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23-03-2011 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 23-03-2011 LAKSHMIKANT/- ITA NO.1416/AHD/2009 RATILAL CHHOTALAL PATEL VS ITO W-13(3), AHMEDABAD 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD