The ACIT, Central Circle-2, Baroda V. M/s. Shiv Builders, Nadiad

ITA 1566/AHD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6890 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-12-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 03-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMALENDU VERMA
• Assessee Lawyers: S N SOPARKAR
• Keywords: Tangible material
• Section: 143(3); 147; 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD 0 0 , 0 0 , BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI N.S. SAINI , ACCOUNTANT MEMBER ./ ITA NO . 1566 / AHD/ 201 1 [ [ / ASSESSMENT YEAR : 200 2 - 03 ACIT, CENTRAL CIRCLE - 2, BARODA VS M/S. SHIV BUILDERS, 107 CITY POINT, NR. PARAS CINEMA, NADIAD PAN : AAGFS 6181 E CO NO.299/AHD/2014 AY 2002 - 03 ( IN ITA NO. 1566/AHD/2011 AY 2002 - 03 ) M/S. SHIV BUILDERS, NADIAD PAN : AAGFS 6181 E VS ACIT, CENTRAL CIRCLE - 2, BARODA / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI VIMALENDU VERMA, CIT - DR ASSESSEE(S) BY : SHRI S.N. SOPARKAR, AR / DATE OF HEARING : 18 /1 2 /2014 / DATE OF PRONOUNCEMENT: 23 /1 2 /2014 / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AND THE CROSS - OBJECTION FILED BY THE ASSESSEE, BOTH AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - IV, AHMEDABAD DATED 08.03.2011 FOR ASSESSMENT YEAR 2002 - 03 . 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.73,75,240/ - , MADE ON ACCOUNT OF NEGATIVE CASH BALANCE. ITA NO. 1566/AHD/2011 & CO NO.299/AHD/2014 ACIT VS. M/S. SHIV BUILDERS FOR AY 2002 - 03 2 2. THE LEARNED CIT(A) FURTHER ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.5,13,166/ - , WHICH WAS MADE OUT OF UNEXPLAINED CASH RECEIPTS. 3. IN THE CROSS - OBJECTION FILED BY THE ASSESSEE, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND OF CROSS - OBJECTION: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN HOLDING THAT, T HERE IS NO SUBSTANCE IN THE CONTENTION OF THE ASSESSEE THAT THE ASSESSING OFFICER HAS NOT PASSED ANY SPEAKING ORDER AGAINST THE OBJECTION RAISED FOR INITIATION OF THE PROCEEDINGS UNDER SECTION 147 AND FURTHER ERRED IN HOLDING THAT THE RE - OPENING OF THE ASS ESSMENT IN CASE OF THE ASSESSEE IS SUSTAINED AND HELD TO BE IN ORDER. 4. THE AR THE OF THE ASSESSEE , WHILE ARGUING GROUND NO.1 OF THE APPEAL , SUBMITTED THAT THE ASSESSEE HAS RAISED OBJECTION S TO THE ISSU ANCE OF NOTICE U/S 148 OF THE ACT VIDE LETTER DATED 11.11.2009 WHICH WAS RECEIVED IN THE OFFICE OF THE ASSESSING OFFICER ON 16.11.2009. HE HAS PLACED A COPY OF THE SAID LETTER ON RECORD. HE FURTHER SUBMITTED THAT THE IMPUGNED ORDER WAS PASSED WITHOUT DISPOSI NG OF F THE OBJECTIONS OF THE ASSESSEE SEPARATELY AND WITHOUT WAITING FOR REASONABLE TIME BEFORE PASSING THE IMPUGNED RE - ASSESSMENT ORDER AND THEREFORE, THE RE - ASSESSMENT ORDER IS LIABLE TO BE QUASHED. THE AR OF THE ASSESSEE RELIED UPON THE ORDER OF THE HO NBLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA P. LTD. V. DCIT, [2013] 354 ITR 0244 (GUJ . ). HE FURTHER SUBMITTED THAT THIS BENCH OF THE TRIBUNAL IN THE CASE OF M/S. BHARUCH ENVIRO INFRASTRUCTURE LTD V. DCIT VIDE ORDER DATED 05.08.2014 IN ITA NOS.731 & 732/AHD/2007 IN AYS 2000 - 01 & 2001 - 02 , FOLLOWING THE ORDER OF HONBLE GUJARAT HIGH COURT IN T HE CASE OF GENERAL MOTORS INDIA P. LTD. ( SUPRA), QUASHED THE RE - ASSESSMENT ORDER ON THE GROUND THAT THE ASSESSEES OBJECTIONS TO THE RE - ASSESSMENT PROCEEDINGS WERE NOT DISPOSED OFF BY THE ASSESSING OFFICER BY PASSING A SEPARATE ITA NO. 1566/AHD/2011 & CO NO.299/AHD/2014 ACIT VS. M/S. SHIV BUILDERS FOR AY 2002 - 03 3 ORDER BUT WAS DISPOSED OFF I N THE ASSESSMEN T ORDER DATED 22.03.2006 ITSELF PASSED U/S 143(3) R.W.S. 147 OF THE ACT. 5 . ON THE OTHER HAND, THE DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 6 . WE FIND THAT, IN THE INSTANT CASE, IT IS NOT IN DISPUTE THAT THE ASSESSEE FILED HIS OBJ ECTIONS AGAINST THE ISSU ANCE OF NOTICE U/S 148 OF THE ACT VIDE HIS LETTER DATED 11.11.2009 WHICH WAS RECEIVED BY THE OFFICE OF THE ASSESSING OFFICER ON 16.11.2009 . THEREAFTER, THE ASSESSING OFFICER PASSED THE IMPUGNED RE - ASSESSMENT ORDER ON 20 .11 .2009, DISPOSING OFF THE OBJECTIONS TO RE - ASSESSMENT PRO CEEDINGS OF THE ASSESSEE IN THE ORDER ITSELF. THUS, THESE FACTS SHOW THAT THE OBJECTIONS RAISED BY THE ASSESSEE AGAINST THE ISSUANCE OF NOTICE U/S 148 OF THE ACT WERE NOT DISPOSED OFF BY THE ASSESSING OFFIC ER BY PASSING A SPEAKING ORDER THEREON AND ALLOWING REASONABLE TIME TO THE ASSESSEE AFTER COMMUNICATING THE FATE OF T HE OBJECTIONS BEFORE PROCEEDING WITH THE RE - ASSESSMENT. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA P. LTD V. DCIT (SUPRA) HAS HELD AS UNDER: - FROM THE AFORESAID DISCUSSION, WE ARE OF THE CONSIDERED OPINION THAT THE WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA IS MAINTAINABLE WHERE NO ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER DECIDING THE OBJECTI ON FILED BY THE ASSESSEE UNDER SECTION 148 OF THE ACT AND ASSESSMENT ORDER HAS BEEN PASSED OR THE ORDER DECIDING AN OBJECTION UNDER SECTION 148 OF THE ACT HAS NOT BEEN COMMUNICATED TO THE ASSESSEE AND ASSESSMENT ORDER HAS BEEN PASSED OR THE OBJECTION FILED UNDER SECTION 148 HAS BEEN DECIDED ALONG WITH THE ASSESSMENT ORDER. IF THE OBJECTION UNDER SECTION 148 HAS BEEN REJECTED WITHOUT THERE BEING ANY TANGIBLE MATERIAL AVAILABLE WITH THE ASSESSING OFFICER TO FORM AN OPINION THAT THERE IS ESCAPEMENT OF INCOME F ROM ASSESSMENT AND IN THE ABSENCE OF REASONS HAVING DIRECT LINK WITH THE FORMATION OF THE BELIEF, THE WRIT COURT UNDER ARTICLE 226 CAN QUASH THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. THE WRIT PETITION FILED BY THE PETITIONER IS MAINTAINABLE. THE ASS ESSING OFFICER IS MANDATED TO DECIDE THE OBJECTION TO THE NOTICE UNDER SECTION 148 AND SUPPLY OR ITA NO. 1566/AHD/2011 & CO NO.299/AHD/2014 ACIT VS. M/S. SHIV BUILDERS FOR AY 2002 - 03 4 COMMUNICATE IT TO THE ASSESSEE. THE ASSESSEE GETS AN OPPORTUNITY TO CHALLENGE THE ORDER IN A WRIT PETITION. THEREAFTER, THE ASSESSING OFFICER MAY PASS THE REAS SESSMENT ORDER. WE HOLD THAT IT WAS NOT OPEN TO THE ASSESSING OFFICER TO DECIDE THE OBJECTION TO NOTICE UNDER SECTION 148 BY A COMPOSITE ASSESSMENT ORDER. THE ASSESSING OFFICER WAS REQUIRED TO, FIRST DECIDE THE OBJECTION OF THE ASSESSEE FILED UNDER SECTION 148 AND SERVE A COPY OF THE ORDER ON THE ASSESSEE. AND AFTER GIVING SOME REASONABLE TIME TO THE ASSESSEE FOR CHALLENGING HIS ORDER, IT WAS OPEN TO HIM TO PASS AN ASSESSMENT ORDER. THIS WAS NOT DONE BY THE ASSESSING OFFICER, THEREFORE, THE ORDER ON THE OB JECTION TO THE NOTICE UNDER SECTION 148 AND THE ASSESSMENT ORDER PASSED UNDER THE ACT DESERVES TO BE QUASHED. 7 . THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, WE ARE OF THE CONSIDERED VIEW THAT THE IMPUGN ED ORDER OF RE - ASSESSMENT PASSED BY THE ASSESSING OFFICER WITHOUT DISPOSING OF THE OBJECTIONS RAISED BY THE ASSESSEE AGAINST THE ISSUANCE OF NOTICE U/S 148 BY A SEPARATE ORDER IS LIABLE TO BE QUASHED. WE ORDER ACCORDINGLY. THUS, THE CROSS - OBJECTION FILED BY THE ASSESSEE IS ALLOWED. 8 . AS WE HAVE QUASHED THE RE - ASSESSMENT ORDER DATED 20 .11.2009 WHILE DISPOSING OF CROSS - OBJECTION OF THE ASSESSEE, THE APPEAL FILED BY THE REVENUE HAS BECOME INFRUCTUOUS AND HENCE DISMISSED. 9 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED AND THE CROSS - OBJECTION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON T U E S D A Y , THE 2 3 R D OF DECEMBER , 2014 AT AHMEDABAD. SD/ - SD/ - ( G.C. GUPTA ) VICE PRESIDENT ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 2 3 /12 /2014 *BIJU T , PS ITA NO. 1566/AHD/2011 & CO NO.299/AHD/2014 ACIT VS. M/S. SHIV BUILDERS FOR AY 2002 - 03 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. [ / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD