Smt. Labhuben Batukbhai Desai, Surat V. The Income tax Officer, (OSD) Range-9, Surat

ITA 1774/AHD/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1892 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 19-05-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV AGARWAL
• Keywords: Set aside
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE DR. O. K. NARAYANAN, VP AND SHRI BHAVNESH S AINI, JM) ITA NOS.1774/AHD/2008 A. Y.: 2002-03 SMT. LABHUBEN BATUKBHAI DESAI., 309, SAHYOG APARTMENT, VARACHHA ROAD, SURAT PA NO. ABEPP 7655B VS THE INCOME TAX OFFICER (OSD), RANGE-9, SURAT , AAYAKAR BHAVAN, MAJURA GATE, SURAT (APPELLANT) (RESPONDENT) APPELLANT BY SHRI MANISH J. SHAH, AR RESPONDENT BY SHRI RAJEEV AGARWAL, DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-V, SURAT DATED 19-0 3-2008 FOR THE ASSESSMENT YEAR 2002-03 ON THE FOLLOWING GROUNDS: 1. ON FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE LAW ON SUBJECT THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN CONFIRMING THE ADDITION OF RS.5,62,344/-ON THE BASIS OF DVOS REPORT WITHOUT EVIDENCES OF ANY VARIATIONS IN COST OF CONS TRUCTION DECLARED BY THE APPELLANT. THE ADDITION OF RS.5,62, 344/- SHOULD BE DELETED. 2. THE LEARNED CIT(A) FURTHER ERRED IN UPHOLDING AS SESSMENT U/S. 143(3) R. W. S. 147 OF THE ACT DISREGARDING THE FA CTS OF REFERENCE TO DVO AFTER ORIGINAL ORDER U/S. 143(3) O F THE ACT. THE RE-ASSESSMENT PROCEEDINGS SHOULD BE HELD AS NUL L AND VOID. 2. AFTER CONSIDERING THE RIVAL SUBMISSIONS OF BOTH THE PARTIES, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RE-CONSIDERATI ON AT THE LEVEL OF THE LEARNED CIT(A). THERE IS A DISPUTE WITH REGARD TO V ALUATION OF THE PROPERTY WHICH IS PRIMARILY MADE ON ACCOUNT OF DIFFERENTIAL VALUATION AS RECORDED BY THE ASSESSEE AND THE DVO. THE ASSESSEE ALSO CHAL LENGED THE RE- ITA NOS.1774/AHD/2008 SMT. LABHUBEN BATUKBHAI DESAI 2 OPENING OF THE ASSESSMENT BECAUSE EARLIER ASSESSMEN T WAS FRAMED U/S 143(3) OF THE INCOME TAX ACT. THIS APPEAL WAS EARLI ER DISMISSED IN DEFAULT WHICH WAS RECALLED BY ALLOWING MISC. APPLIC ATION OF THE ASSESSEE. THE IMPUGNED ORDER SHOWS THAT THE LEARNED CIT(A) DI SMISSED THE APPEAL OF THE ASSESSEE WITHOUT MENTIONING THE REASONS OF T HE DECISION AND AS SUCH HE HAS PASSED A NON-SPEAKING ORDER ON BOTH THE ISSUES. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT SIN CE BOTH THE ISSUES ARISE OUT OF THE ORDER OF THE AO AND EARLIER REGULA R ASSESSMENT WAS FRAMED, THEREFORE, THE LEARNED CIT(A) SHOULD HAVE D ECIDED THE APPEAL ON MERITS INSTEAD OF DISPOSING OF THE SAME BY NON-SPEA KING ORDER. ON CONSIDERATION OF THE ABOVE FACTS, WE ARE OF THE VIE W THAT EVEN IF THE ASSESSEE DID NOT APPEAR BEFORE THE LEARNED CIT(A), IT WAS INCUMBENT ON THE PART OF THE LEARNED CIT(A) TO HAVE DECIDED THE APPEAL OF THE ASSESSEE ON MERIT GIVING REASONS FOR DECISION IN THE IMPUGNE D ORDER. IN THE ABSENCE OF SUCH FINDINGS, ON MERIT, WE SET ASIDE TH E ORDER OF THE LEARNED CIT(A) AND RESTORE THE APPEAL OF THE ASSESSEE TO HI S FILE WITH DIRECTION TO DECIDE THE APPEAL ON MERIT GIVING REASONS FOR DECIS ION AND POINT FOR DETERMINATION BY GIVING SUFFICIENT OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 3. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10-12-2009 SD/- SD/- (DR. O. K. NARAYANAN) VICE PRESIDENT (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 10 -12-2009 LAKSHMIKANT/- ITA NOS.1774/AHD/2008 SMT. LABHUBEN BATUKBHAI DESAI 3 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 D Y. REGISTRAR, ITAT, AHMEDABAD