Pravinaben S.Gandhi, V. The Income tax Officer, Ward-2, Anand

ITA 1801/AHD/2006

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8774 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-03-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 31-07-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C
• Keywords: Reassessment proceedings; Set aside
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER DATE OF HEARING: 25.03.10 DRAFTED ON: 25.03.10 ITA NO.1801/AHD/2006 ASSESSMENT YEAR : 1998-1999 PRAVINABEN S. GANDHI GANDHI PULSE MILL, PLOT NO.49, VITTHAL UDHYOG NAGAR, ANAND. VS. INCOME TAX OFFICER, WARD-2, ANAND. PAN/GIR NO. : 31-607-PQ-6843 (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI URVASHI SODHAN RESPONDENT BY: SHRI M.C.PANDIT SR. D.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV, BA RODA, DATED 8.05.2006. 2. GROUNDS OF THE APPEAL READS AS UNDER:- 1. THE LD. A.O. HAS GROSSLY ERRED IN LAW AND ON TH E FACTS IN REOPENING THE CASE U/S 147 AS WELL INITIATING THE P ROCEEDINGS U/S 148 OF THE ACT. UNDER THE FACTS AND CIRCUMSTANCES OF TH E CASE NO INCOME HAS ESCAPED ASSESSMENT AND THEREFORE THIS ACTION OF AO IN REOPENING OF THE CASE IS BAD IN LAW AND WITHOUT JURISDICTION. 2. LEARNED CIT (A) HAS ERRED IN JAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.6,75,000/- ON SUBSTANTIVE BASIS AND OF RS.13,50,000/- ON PROTECTIVE BASIS ON ACCOUNT OF LO NG TERM CAPITAL GAIN BY APPLYING THE PROVISION OF SECTION 45 (3) OF THE ACT. THE ADDITION BEING WITHOUT ANY MERITS AND JUSTIFICATION REQUIRES TO BE QUASHED. - 2 - 3. THE ORDER PASSED BY CIT (A) IS WITHOUT PROPERLY APPRECIATING THE FACT AND THAT HE FURTHER ERRED IN GROSSLY IGNOR ING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEE N CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. 3. WE HAVE HEARD BOTH THE PARTIES. THE LEARNED AUTH ORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE R EASONS RECORDED FOR RE- OPENING THE ASSESSMENT WERE NOT SUPPLIED, THEREFORE , HE DID NOT HAVE PROPER OPPORTUNITY TO MAKE THE SUBMISSIONS ON THE V ALIDITY OF THE INITIATION OF REASSESSMENT PROCEEDINGS. HE FURTHER SUBMITTED T HAT THE ASSESSEE WAS THE 1/3 RD OWNER OF THE PROPERTY AND IN THE CASE OF OTHER TWO CO-OWNERS OF THE PROPERTY ALSO RE-OPENING OF THE ASSESSMENT WAS MADE ON ACCOUNT OF UNDER VALUATION OF PROPERTY AND THEREBY SHOWING LESS CAPI TAL GAIN, THE MATTER WAS REMANDED BACK TO THE FILE OF THE LEARNED COMMISSION ER OF INCOME TAX(APPEALS) BY THE TRIBUNAL WITH THE DIRECTION TO PROVIDE COPY OF THE REASONS RECORDED BY THE LEARNED ASSESSING OFFICER U NDER SECTION 148 OF THE INCOME TAX ACT, 1961 AND THEREAFTER, HEAR HIM ON TH E VALIDITY OF THE REASSESSMENT PROCEEDINGS AND DISPOSE OFF THE MATTER IN ACCORDANCE WITH LAW. FOLLOWING THE SAME COURSE IN THE ASSESSEES CA SE ALSO, THE MATTER SHOULD BE REMANDED BACK TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) GIVING SAME DIRECTION AS IN THE CASE OF THE OTHER TWO CO-OWNER OF THE PROPERTY. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAD NO OBJECTION TO THE ABOVE SUBMISSION MADE BY THE LE ARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. WE FIND THAT IN TH E CASE OF SMT.SHARDABEN VITHALDAS GANDHI AND SHRI THAKORBHAI VITHALDAS GAND HI IN ITA NO.803 AND 804/AHD/2006 FOR A.Y. 1998-99, CONSOLIDATED ORD ER DATED 19.02.2009, THE TRIBUNAL HAS HELD AS UNDER: 3. WE HAVE HEARD THE PARTIES. AT THE TIME OF HEARI NG, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE REASONS RECORDE D FOR RE-OPENING THE ASSESSMENT WERE NOT SUPPLIED AND, THEREFORE, HE DID NOT HAVE THE REQUISITE OPPORTUNITY TO EFFECTIVELY MAKE HIS SUBMISSIONS ON THE VALIDITY OF THE INITIATION OF RE-ASSESSMENT PROCEEDINGS. THE LD. D. R COULD NOT REBUT THE - 3 - SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE ASS ESSEE. IN THIS VIEW OF THE MATTER, THE ISSUE IS SENT BACK TO THE FILE OF T HE LEARNED CIT(A) WITH THE DIRECTION TO PROVIDE A COPY OF THE REASONS RECORDED BY THE ASSESSING OFFICER U/S 148 OF THE INCOME-TAX ACT TO THE ASSESS EE AND THEREAFTER HEAR HIM ON THE VALIDITY OF THE RE-ASSESSMENT PROCEEDING S AND DISPOSE OFF THE MATTER IN ACCORDANCE WITH LAW. REASONABLE OPPORTUNI TY OF HEARING SHALL BE GIVEN TO BOTH THE PARTIES. 4. RESPECTFULLY FOLLOWING THE ABOVE QUOTED ORDER OF THE TRIBUNAL, WE SET ASIDE THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND RESTORE THE MATTER BACK TO HIS FILE TO RE-ADJU DICATE THE ISSUE AFRESH AS PER LAW AFTER SUPPLYING COPY OF REASONS RECORDED BY THE LEARNED ASSESSING OFFICER UNDER SECTION 148 OF THE INCOME TAX ACT, 19 61 TO THE ASSESSEE AND AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE REFRAMING THE ASSESSMENT AFRESH. 5. SINCE WE ARE RESTORING THE MATTER TO THE FILE OF THE LEARNED CIT(A) FOR FRESH DECISION WITH REGARD TO THE VALIDITY OF THE R E-ASSESSMENT PROCEEDINGS INITIATED BY THE ASSESSING OFFICER, OTHER GROUNDS O F APPEAL ARE NOT BEING DISPOSED OFF AT THIS STAGE. HOWEVER, THE LEARNED C1 T(A) SHALL DISPOSE THEM OFF AFRESH IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON 25/03/2010. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTAN T MEMBER AHMEDABAD; DATED 25/03/2010 PARAS - 4 - COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS) 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD