The Harsiddhi Co.op. Credit Society Ltd., Mahisagar V. The ITO, Lunawad

ITA 1862/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0955 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 10-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T C MEENA
• Keywords: Depreciation; Reason to believe
• Section: 147; 148; 139

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 1862/AHD/2017 / ASSESSMENT YEAR: 2009-10 THE HARSIDDHI CO-OP. CREDIT SOCIETY LTD., TOWER ROAD AT & O : SANTRAMPUR 389 260 DIST: MAHISAGAR, GUJARAT PAN : AABAT 3395 D VS ITO, LUNAWADA. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI SAKAR SHARMA, AR REVENUE BY : SHRI T.C.MEENA, SR.DR / DATE OF HEARING : 25/03/2019 /DATE OF PRONOUNCEMENT : 26/03/2019 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF THE LD.CIT(A)- 4, VADODARA DATED 5.5.2017 PASSED FOR THE ASSTT.YEAR 2009-10. 2. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTS ET SUBMITTED THAT THE ASSESSEE HAS TAKEN ADDITIONAL GROUNDS OF APPEAL , WHEREBY IT HAS CHALLENGED REOPENING OF THE ASSESSMENT UNDER GROUND NO.3. HE SUBMITTED THAT THE ISSUE IN DISPUTE IS SQUARELY COV ERED IN FAVOUR OF THE ASSESSEE BY JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF CIT VS. MOHMED JUNED DADANI, 335 ITR 17 2 (GUJ). CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS TH AT ASSESSMENT WAS REOPENED ON THE GROUND THAT THE ASSESSEE HAS MADE D EPOSITS IN CASH IN ITA NO.1862/AHD/2017 - 2 - BANK ACCOUNT, WHEREAS NO ADDITION QUA THAT ISSUE HAS BEEN MADE. HONBLE GUJARAT HIGH COURT AFTER PUTTING RELIANCE U PON THE JUDGMENT IN THE CASE OF CIT VS. JET AIRWAYS I LTD., 331 ITR 236 AND THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF RANBAXY LAB ORATORIES LTD. VS. CIT, 336 ITR 136 HAS HELD THAT IF NO ADDITION WAS M ADE TO THE INCOME OF THE ASSESSEE ON THE ISSUE FOR WHICH ASSESSMENT WAS REOPENED THEN ANY INCOME FOUND TO HAVE BEEN ESCAPED FROM THE ASSESSME NT DURING THE RE- ASSESSMENT PROCEEDINGS ON OTHER ISSUES CANNOT BE AD DED. ON THE OTHER HAND, THE LD.DR RELIED UPON THE ORDERS OF THE REVEN UE AUTHORITIES. 3. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. THE REASON FOR REOPENING OF THE ASSESSMENT HAS BEEN PLACED ON PAGE NO.1 OF THE PAPER BOOK, WHICH READS ASUNDER: OFFICE OF THE INCOME TAX OFFICER, LUNAWADA, 4TH FLOOR,DAYALU COMPLEX, MODASA ROAD, LUNAWADA PAN NO : AABAT3395D DATED : 24/05/2016 TO THE HARSIDDHI CO-OP CREDIT SOCIETY LTD. TOWER ROAD SANTRAMPUR-3 89260. SUB.: REASON FOR ISSUE OF NOTICE U/S 148 OF THE ACT , IN YOUR CASE-REG. SIR/MADAM, IN THIS CONNECTION IT IS SUBMITTED THAT AS PER DETA ILS AVAILABLE WITH THIS OFFICE, CASH OF RS.99,08,676/- HAS BEEN DEPOSI TED IN THE BANK ACCOUNT OF THE HARISIDDHI CO OP CREDIT SOCIETY, DURING THE F.Y. 2008-09. FROM VERIFICATION OF THE RECORD, IT IS FOUND THAT THE YO U HAD NOT FILED YOUR RETURN OF INCOME FOR THE A.Y. 2009-10 RELEVANT TO F .Y. 2008-09. ITA NO.1862/AHD/2017 - 3 - THEREFORE, I HAVE REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED FROM ASSESSMENT WITHIN THE MEANING OF S ECTION 147 OF THE INCOME TAX ACT, 1961 YOURS FAITHFULLY, YOURS FAITHFULLY, SD/- Q(MANOJ KUMAR YADAV) INCOME TAX OFFICER LUNAWADA 4. A COMPUTATION OF INCOME AT THE END OF THE ASSESS MENT ORDER WOULD SHOW THAT THE LD.AO HAS NOT MADE ADDITION FOR WHICH THE ASSESSMENT WAS REOPENED. THIS COMPUTATION READS AS UNDER: 6. SUBJECT TO THE ABOVE REMARKS, THE TO TAL INCOME OF THE ASSESSEE IS RECOMPUTED AS UNDER;- . TOTAL INCOME AS PER RETURN OF INCOME NIL ADD: INCOME FROM OTHER SOURCES BEING INTEREST AS INTEREST ON FD FROM DENA BANK RS. 39490/- INTEREST ON FD FROM THE SBI RS. 128066/- INTEREST ON FD FROM BANK OF BARODA RS. 188457- RS. 1,86,401/- DISALLOWANCE AS PER PARA-4 RS. 5,30,857/- TOTAL ASSESSED INCOME RS. 7,17,258/- ROUND OFF... RS.7,17,260/- 5. THE HONBLE GUJARAT HIGH COURT, DELHI HIGH COURT AND BOMBAY HIGH COURTS ARE UNANIMOUS WHILE CONSTRUING THE EXPR ESSION AND ALSO EMPLOYED IN SECTION 147 OF THE INCOME TAX ACT. THE RELEVANT PART OF SECTION 147 READS AS UNDER: ITA NO.1862/AHD/2017 - 4 - 147. IF THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, HE MAY SUBJECT TO THE PROVISIONS O F SECTIONS 148 TO 153 ASSESS OR RE-ASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENT LY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION, O R RECOMPUTED THE LOSS OR THE DEPRECIATION ALLOWANCE O R ANY OTHER ALLOWANCE, AS THE CASE MAY BE, FOR THE ASSESS MENT YEAR CONCERNED (HEREAFTER IN THIS SECTION AND IN SECTION S 148 TO 153 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR): PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE R ELEVANT ASSESSMENT YEAR, NO ACTION SHALL BE TAKEN UNDER THI S SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TA X HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REAS ON OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A R ETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB- SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DIS CLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSE SSMENT, FOR THAT ASSESSMENT YEAR; [PROVIDED FURTHER THAT THE AO MAY ASSESS OR REASSES S SUCH INCOME OTHER THAN THE INCOME INVOLVING MATTERS WHIC H ARE THE SUBJECT MATTERS OF ANY APPEAL, REFERENCE OR REVISIO N WHICH IS CHARGEABLE TO TAX AND HAS ESCAPED ASSESSMENT]. XXXX XXXX XXXX 6. THE HONBLE HIGH COURTS HAVE OBSERVED THAT IF NO ADDITION IS BEING MADE ON AN ISSUE FOR WHICH ASSESSMENT WAS REO PENED, THEN NO OTHER ADDITION ON AN ISSUE UNEARTHED AS ESCAPEMENT OF INCOME DURING THE COURSE OF RE-ASSESSMENT PROCEEDINGS WILL BE MAD E. THE EXPRESSION AND ALSO AUTHORISES THE AO TO MAKE ADDITION OF AL L OTHER INCOMES WHICH WERE FOUND TO BE ESCAPED DURING THE RE-ASSESS MENT PROCEEDINGS. HONBLE COURTS HAVE OBSERVED THAT AND ALSO WOULD MEAN THAT IF ADDITION IS BEING MADE QUA THE ISSUE FOR WHICH ASSESSMENT IS BEING REOPENED, THEN OTHER ADDITIONS SHOULD BE MADE. IF NO ADDITION COULD BE ITA NO.1862/AHD/2017 - 5 - MADE ON THE ITEMS FOR WHICH THE ASSESSMENT WAS REOP ENED OTHER ADDITIONS CANNOT BE MADE. RESPECTFULLY FOLLOWING T HE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. M OHMED JUNE DANANI (SUPRA), WE ALLOW THIS APPEAL OF THE ASSESSEE AND Q UASH THE RE- ASSESSMENT ORDER. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON 26 TH MARCH, 2019. SD/- SD/- (WASEEM AHMED) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER