The ITO, Ward-15(2), Ahmedabad V. Shri Ramanlal Maganlal Parmar, Ahmedabad

ITA 1676/AHD/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9745 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 07-09-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 14-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Assessee Lawyers: NIMISH VAYAWALA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER DATE OF HEARING : 07/09/2010 DRAFTED ON: 07/ 09/2010 ITA NO.1676/AHD/2008 ASSESSMENT YEAR : 2000-01 THE INCOME TAX OFFICER WARD-15(2) AHMEDABAD VS. SHRI RAMANLAL MAGALAL PARMAR 6, SUKHSAGAR SOCIETY NR.MUNICIPAL ZONAL OFFICE DANI LIMDA AHMEDABAD-380 015 PAN/GIR NO. : AHZPP1654P ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI K.M. MAHESH, D.R. RESPONDENT BY: SHRI NIMISH VAYAWALA, A.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE WHI CH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XXI, AHMEDAB AD DATED 06/02/2008 PASSED FOR ASSESSMENT YEAR 2000-01 AND T HE SOLITARY SUBSTANTIVE ISSUE IS AS PER FOLLOWING GROUNDS:- THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.5,41,650/- DIRECTING IT TO BE ASSESS ED IN THE STATUS OF A.O.P. 2. THE LEARNED CIT(A) ALSO ERRED IN LAW AND ON FAC TS IN NOT APPRECIATING THE FACTS ON FILE BY WHICH THE INCOME HAD BEEN ASSESSED ON THE STATUS OF INDIVIDUAL. ITA NO.1676/AHD /2008 ITO VS. SHRI RAMANLAL MAGANLAL PARMAR ASST.YEAR 2000-01 - 2 - 2. THE RESPONDENT-ASSESSEE IS SUBJECT TO TAX FOR TH E YEAR UNDER CONSIDERATION UNDER THE STATUS OF INDIVIDUAL. THE ASSESSMENT WAS MADE U/S.143(3) R.W.S. 147 OF THE I.T. ACT, 1961 DATED 2 6/12/2007. FOLLOWING THE PAST HISTORY OF ASSESSMENT YEAR 1999-2000, FOR THIS YEAR AS WELL A SHOW-CAUSE NOTICE WAS ISSUED BY THE ASSESSING OFFIC ER TO EXPLAIN AS TO WHY THE INCOME FROM CONSTRUCTION BUSINESS BE NOT TA XED AS PER THE ASSESSEES SHARE IN THE HANDS OF HIS INDIVIDUAL CAP ACITY. THE ASSESSING OFFICER HAS MADE A CALCULATION AND, THEREAFTER, DE TERMINED ASSESSEES SHARE OF PROFIT @ 66.6% OF RS.5,41,650/- AND, ACCOR DINGLY, TAXED THE SAME. 3. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLAT E AUTHORITY, WHO HAS FOLLOWED THE ORDER OF HIS PREDECESSOR FOR ASSESSMEN T YEAR 1999-2000 AND HELD THAT THE INCOME OUT OF THE CONSTRUCTION AC TIVITY IS TO BE TREATED IN THE HANDS OF THE AOP AS IT WAS ALREADY DECIDED IN A SSESSMENT YEAR 1999-2000. 4. NOW BEFORE US, AN ORDER OF THE TRIBUNAL FOR ASSE SSMENT YEAR 1999-2000 IS PLACED ON RECORD, WHEREIN RESPECTED CO -ORDINATE BENCH C AHMEDABAD IN ITA NO.4203/AHD/2007 FOR ASSESSMEN T YEAR 1999- 2000 (ORDER DATED 09/07/2000) HAS HELD THAT THE INC OME FROM CONSTRUCTION ACTIVITY SHOULD BE ASSESSED IN THE ST ATUS OF AOP VIDE PARAGRAPH NO.6; REPRODUCED BELOW:- 6. WE HAVE HEARD THE LD. D.R. AND LD. A.R. IN OUR CONSIDERED VIEW THERE IS NO CASE FOR INTERFERENCE IN THE ORDER PASSED BY THE LD. C.I.T.(A). THE REASONS ARE THAT A.O. HAS HIMS ELF GIVEN A ITA NO.1676/AHD /2008 ITO VS. SHRI RAMANLAL MAGANLAL PARMAR ASST.YEAR 2000-01 - 3 - FINDING THAT TWO PERSONS NAMELY ASSESSEE AND SHRI B IJALBHAI PANABHAI PARMAR HAD JOINED TOGETHER TO CARRY ON THE BUSINESS AND SHARE THE PROFITS THEREFROM. AS THERE IS NO PARTN ERSHIP DEED VALIDLY EXECUTED BETWEEN THEM THE STATUS OF SUCH VE NTURE WOULD BE AOP. ALL THE INGREDIENTS OF AOP ARE SATISFIED I.E. THE TWO PERSONS HAVE JOINED TOGETHER TO CARRY ON THE BUSINESS, THEY HAVE COMMON INTEREST IN EARNING INCOME AND SHARING THE PROFITS, THEY HAVE DEFINITE SHARE FOR SHARING SUCH PROFIT AND THEY HAV E MADE INVESTMENT FOR CARRYING OUT THEIR BUSINESS. ACCORD INGLY LD. CIT(A) WAS JUSTIFIED IN HOLDING THAT INCOME FROM CO NSTRUCTION ACTIVITIES SHOULD BE ASSESSED IN THE STATUS OF A.O. P. 5. ONCE A CO-ORDINATE BENCH HAS TAKEN A VIEW IN FA VOUR OF THE ASSESSEE BY REJECTING REVENUES APPEAL IN THE PAST, THEREFORE, WE HAVE NO REASON TO TAKE ANY OTHER VIEW BUT TO FOLLOW THE VIE W ALREADY TAKEN IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 1999-2000 A ND, THEREFORE, THE DIRECTIONS EMBEDDED THEREIN SHALL ALSO APPLY MUTATI S MUTANDIS FOR THE YEAR UNDER CONSIDERATION AS WELL. CONSEQUENTLY, F OR THIS YEAR AS WELL REVENUES GROUNDS ARE HEREBY DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STAND S DISMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 17/ 09 /2010. SD/- SD/- ( N.S. SAINI ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD; DATED 17/ 09 /2010 T.C. NAIR, SR. PS ITA NO.1676/AHD /2008 ITO VS. SHRI RAMANLAL MAGANLAL PARMAR ASST.YEAR 2000-01 - 4 - COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XXI, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..07/09/2010 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 07/09/2010 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 07/09/2010 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S13/09/2010 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER