Samun M. Gajipurwala, Godhra V. The ITO, Ward-2, Godhra

ITA 1576/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9102 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 23-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ I.T.A. NO. 1575 & 1576/AHD/2017 ( / ASSESSMENT YEARS : 2010-11 & 2011-12) 1-2. SUM A N M. GAJIPURWALA BADRI PALACE NR.VIMANWALA BUILDING VOHARWAD, GODHRA / VS. 1-2. THE ITO WARD-2 GODHRA ./ ./ PAN/GIR NO. : ACCPG 7616 A ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : MS. URVASHI SODHAN, AR / RESPONDENT BY : SHRI S.K. DEV, SR.DR / DATE OF HEARING 13/06/2019 !'# / DATE OF PRONOUNCEMENT 08/07/2019 / O R D E R PER SHRI RAJPAL YADAV, JUDICIAL MEMBER : THE ASSESSEE IS IN APPEALS BEFORE THE TRIBUNAL AGA INST THE COMMON ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS)-4, VADODARA [CIT(A) IN SHORT] DATED 24/03/2017 PAS SED FOR ASSESSMENT YEARS (AYS) 2010-11 & 2011-12. 2. THE LD.COUNSEL FOR THE ASSESSEE, AT THE VERY OU TSET, SUBMITTED THAT ASSESSEE HAS CHALLENGED REOPENING OF ASSESSMENT BEF ORE THE LD. FIRST ITA NOS.1575 & 1576 /AHD/2017 SAMUN M. GAJIPURWALA VS. ITO ASST.YEARS 2010-11 & 2011-12 - 2 - APPELLATE AUTHORITY BUT LD. FIRST APPELLATE AUTHORI TY HAS NOT ADJUDICATED THIS GROUND OF APPEAL IN BOTH THE YEARS. SHE FURTH ER CONTENDED THAT UNDER GROUND NO.1, ASSESSEE HAS PLEADED BEFORE THE TRIBUN AL THAT LD.CIT(A) HAS ERRED IN HOLDING THAT THE REOPENING OF ASSESSME NT WAS VALID BY REJECTING THE CONTENTION OF ASSESSEE. 3. WITH THE ASSISTANCE OF LD. REPRESENTATIVES, WE H AVE GONE THROUGH THE RECORD CAREFULLY. WE HAVE ALSO GONE THROUGH FORM NO.35 FILED BEFORE THE CIT WHICH CONTAINS GROUND OF APPEAL RAIS ED BY THE ASSESSEE. A PERUSAL OF CIT(A)S ORDER AT PAGE NO.2 WOULD INDI CATE THAT LD.CIT(A) HAS REPRODUCED THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AND RELEVANT PART READS AS UNDER:- 3. THE GROUNDS OF APPEAL AREAS UNDER: 1. THE REOPENING OF ASSESSMENT IS BAD IN LAW AND AB-INITIO VOID 1. THE LEARNED ASSESSING OFFICER ERRED IN NOT ACCEPTI NG THE EXPLANATION FURNISHED BY THE APPELLANT DURING THE C OURSE OF ASSESSMENT PROCEEDINGS REGARDING THE SOURCE OF DEPO SIT IN THE BANK ACCOUNT BEING TRANSFERRED FROM UAE THROUGH PROPER B ANKING CHANNEL. 4. PERUSAL OF THE ABOVE WOULD INDICATE THAT ASSESSE E HAS CHALLENGED THE REOPENING OF ASSESSMENT. HOWEVER, THIS GROUND HAS NOT BEEN ADJUDICATED BY THE LD. CIT(A). THUS, ORDER OF TH E CIT(A) IS NOT SUSTAINABLE ON THIS SHORT ISSUE. WE ACCORDINGLY SE T ASIDE THE IMPUGNED ORDER IN BOTH THE YEARS AND REMIT THE ISSUE OF REOP ENING TO THE FILE OF ITA NOS.1575 & 1576 /AHD/2017 SAMUN M. GAJIPURWALA VS. ITO ASST.YEARS 2010-11 & 2011-12 - 3 - LD.CIT(A) FOR ADJUDICATION. HOWEVER, IN CASE, THIS ISSUE IS BEING DECIDED AGAINST ASSESSEE BY THE LD. FIRST APPELLATE AUTHORITY, THEN ASSESSEE WILL BE AT LIBERTY TO CHALLENGE ADDITIONS ON MERIT ALONG WITH FINDING OF CIT(A) ON THIS PRELIMINARY ISSUE IN APPE ALS BEFORE THE TRIBUNAL IN THE SECOND ROUND. IF THE LD.CIT(A) HAS ACCEPTED THE CONTENTIONS OF THE ASSESSEE, THEN ASSESSMENT ORDER( S) WOULD BE QUASHED. 5. IN OTHER WORDS, WE ARE NOT ADJUDICATING THE ISSU E ON MERIT NOR WE ARE REMITTING TO THEM TO THE FILE OF LD.CIT(A) BECA USE LD. FIRST APPELLATE AUTHORITY ALREADY DEVOTED 39 PAGES FOR DECIDING THE ISSUES ON MERIT. DUE TO ABOVE REASON, WE ARE RESERVING THE RIGHT OF THE ASSESSEE TO CHALLENGE THESE ADDITIONS ON MERITS BEFORE THE TRIBUNAL IN TH E SECOND ROUND AFTER ADJUDICATION OF HIS GROUNDS OF APPEAL ON REOPENING AT THE END OF THE LD. FIRST APPELLATE AUTHORITY. 6. WITH THE ABOVE OBSERVATION, BOTH THE APPEALS FIL ED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 8 TH JU LY - 2019 AT AHMEDABAD. SD/- SD/- ( AMARJIT SINGH ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 08/ 07 /2019 &.., .(../ T.C. NAIR, SR. PS ITA NOS.1575 & 1576 /AHD/2017 SAMUN M. GAJIPURWALA VS. ITO ASST.YEARS 2010-11 & 2011-12 - 4 - !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)- 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..3.7.2019(DICTATION-PAD 7- PA GES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..4.7.2019 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.9.7.19 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 9.7.19 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER