Smt. Veenaben Rohitbhai Patel, Anand V. The Income tax Officer, Ward-2, Anand

ITA 201/AHD/2006

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9789 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 22-09-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 24-01-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Assessee Lawyers: S N DIVATIA
• Keywords: Reason to believe
• Section: 143(3); 143(2)

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 : 22/09/2010 DRAFTED ON: 2 2/09/2010 ITA NO.201/AHD/2006 ASSESSMENT YEAR : 2002-03 SMT. VEENABEN ROHITBHAI PATEL HARSH VIDYANAGAR KARAMSAD ROAD DT.ANAND VS. THE INCOME TAX OFFICER WARD-2 ANAND PAN/GIR NO. : AESPP 7109 P ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI S. N. DIVATIA RESPONDENT BY: SHRI K.M. MAHESH, SR. D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-IV, BARODA DATED 16/11/2005 PASSED FOR ASSESSMENT YEAR 2002-03 AND T HE GROUNDS RAISED ARE REPRODUCED BELOW:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T. (APPEALS)-IV, BARODA ERRED IN : 1. CONFIRMING THE ACTION OF THE I.T.O. IN GOING BEYOND THE SCOPE OF PROVISIONS OF SEC. 143(2)(I) OF THE I.T. ACT, 1961 (LIMITED SCRUTINY). 2. CONFIRMING THE DISALLOWANCE OF RS.12,89,928 BEING S HORT TERM CAPITAL LOSS. ITA NO.201/AHD/ 2006 SMT. VEENABEN ROHITBHAI PATEL VS. ITO ASST.YEAR - 2002-03 - 2 - 2. AS FAR AS THE GROUND NO.1 REPRODUCED HEREINABOVE IS CONCERNED, THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESS EE HAS PLEADED THAT THIS QUESTION BEING LEGAL IN NATURE HAS TO BE DECID ED FIRST. IN SUPPORT, HE HAS SUBMITTED AS FOLLOWS (COPIED HEREINBELOW FROM T HE WRITTEN SUBMISSIONS):- B. SUBMISIONS 6. THE FIRST EFFECTIVE GROUND OF APPEAL IS THE VAL IDITY OF THE PROCEEDINGS INITIATED AND CONCLUDED BY THE AO U/S. 143(3) (I). 6.1. THE APPELLANT SUBMITS THAT FINANCE ACT, 2002 I NTRODUCED CLAUSE (I) IN SECTION 143(2) W.E.F. 1.6.2002 AND TH EREBY A CONCEPT OF ASSESSMENT OF LIMITED ISSUES. THE PLAIN READING OF THIS CLAUSE SHOWS THAT IF AN AO HAS REASON TO BELIEVE THAT ASS ESSEE HAS MADE A CLAIM OF ANY LOSS, EXEMPTION, DEDUCTION, ALLOWANC E OR RELIEF WHICH IS INADMISSIBLE, HE WILL ISSUE NOTICE UNDER T HIS CLAUSE SPECIFYING SUCH CLAIM AND CALLING UPON THE ASSESSEE TO PRODUCE EVIDENCE AND PARTICULARS IN SUPPORT THEREOF. AFTER HEARING THE SAME, HE WILL MAKE AN ASSESSMENT OF TOTAL INCOME/LO SS U/S.143(3)(I) LIMITING HIMSELF TO THE CLAIMS HE HAD SET OUT TO VE RIFY. IN ORDER TO INVOKE THIS CLAUSE, THE FOLLOWING CONDITIONS HAVE T O BE FULFILLED VIZ. (A) AO SHOULD HAVE REASON TO BELIEVE (B) ANY CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN T HE RETURN (C) IS INADMISSIBLE. NOW IN THE PRESENT CASE, IT HAS TO B E EXAMINED WHETHER THE AFORESAID CONDITIONS HAVE BEEN FULFILLE D OR NOT. 2.1. HOWEVER, ON PERUSAL OF THE ORDER OF THE LEARNE D CIT(APPEALS), WE HAVE NOTICED THAT THIS GROUND WAS NOT ADJUDICATED U PON. THE LEARNED DEPARTMENTAL REPRESENTATIVE FROM THE SIDE OF THE RE VENUE DEPARTMENT, MR. K.M. MAHESH HAS OBJECTED THE MANNER IN WHICH TH IS GROUND HAS NOW BEEN RAISED BY THIS APPELLANT BEFORE THE TRIBUNAL W HICH HAD NOT BEEN DECIDED BY THE FIRST APPELLATE AUTHORITY. RATHER, LEARNED DEPARTMENTAL REPRESENTATIVE HAS ALSO POINTED OUT THAT IF THE ASS ESSEE HAD ANY GRIEVANCE ITA NO.201/AHD/ 2006 SMT. VEENABEN ROHITBHAI PATEL VS. ITO ASST.YEAR - 2002-03 - 3 - IN RESPECT OF THE ACTION OF THE ASSESSING OFFICER, THEN THE ASSESSEE SHOULD HAVE POINTED OUT THE SAME AT THAT STAGE ONLY. EVEN THIS ASSESSEE HAS NOT RAISED ANY OBJECTION BEFORE THE ASSESSING OFFICER A S IS APPARENT FROM THE IMPUGNED ORDER OF THE ASSESSING OFFICER, THE LEARNE D DEPARTMENTAL REPRESENTATIVE HAS CONCLUDED. 3. AFTER HEARING BOTH THE SIDES AND ON CAREFUL EXAM INATION OF THE CIRCUMSTANCES OF THE CASE, WE DEEM IT PROPER TO RES TORE THIS ISSUE BACK TO THE STAGE OF THE LEARNED CIT(APPEALS), SO THAT THE QUESTION OF THE JURISDICTION OF THE ASSESSING OFFICER FIRST SHOULD BE DECIDED AS PER LAW. THE LEARNED CIT(APPEALS) IS AT LIBERTY TO CALL FOR THE NECESSARY INFORMATION ABOUT THE ISSUANCE OF THE NOTICE AND TH E AREA OF INVESTIGATION FOR WHICH THE CASE WAS SELECTED FOR THE PURPOSE OF SCRUTINY AND THEN AFTER ANALYZING ALL THE CIRCUMSTANCES OF THE CASE AND THE POWERS CONFERRED TO THE ASSESSING OFFICER AS PER THE CONNECTED PROVISI ONS OF THE STATUTE HE CAN DECIDE THIS GROUND ACCORDINGLY. 4. BEFORE WE PART WITH, WE MAY LIKE TO ADD THAT IN RESPECT OF GROUND NO.2, THE CONTENTION IS THAT THE CLAIM WAS NOT ALLO WED DUE TO SOME TYPOGRAPHICAL ERROR COMMITTED WHILE MENTIONING THE DATE OF PURCHASE OF THE SHARES. IF THE CORRECT DATE OF PURCHASE WAS ON 09/10/2000 AS ASSERTED BY THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE MR. S.N.DIVATIA BEFORE US, BUT IT WAS MISTAKENLY INFORM ED AS 09/10/2001, THEN THE SAME COULD HAVE BEEN CORRECTED AT THE LOWE R LEVEL BY PRODUCING THE COGENT EVIDENCE, SUCH AS, THE BALANCE-SHEET DRA WN AS ON 31/03/2001 TO DEMONSTRATE THAT THE SHARES HAVE DULY BEEN REFLE CTED IN THE ITA NO.201/AHD/ 2006 SMT. VEENABEN ROHITBHAI PATEL VS. ITO ASST.YEAR - 2002-03 - 4 - SAID BALANCE-SHEET AT THE CLOSE OF THE ACCOUNTING P ERIOD. FOR THIS REASON, AS WELL, WE DEEM IT PROPER TO RESTORE THIS GROUND A S WELL BACK TO THE STAGE OF THE FIRST APPELLATE AUTHORITY, SO THAT HE CAN CA LL FOR THE REQUISITE INFORMATION FROM THE RECORDS OF THE REVENUE DEPARTM ENT AND THEREUPON DECIDE THE ISSUE AS PER LAW. HE IS AT LIBERTY TO T AKE DUE COGNIZANCE OF OTHER EVIDENCES, SUCH AS, PHYSICAL DELIVERY OF SHAR ES WHETHER DULY PROVED OR NOT BY THE ASSESSEE. IN VIEW OF THESE REASONS, THE MATTER GOES BACK TO THE FILE OF LEARNED CIT(APPEALS) AND THE GROUNDS RA ISED MAY BE TREATED AS ALLOWED ONLY FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED ONLY FOR STATISTICAL PURPOSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 24 TH SEPTEMBER, 2010. SD/- SD/- ( N.S. SAINI ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD; DATED 24/ 09 /2010 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPA RTMENT. 3. THE CIT CONCERNED. 4. THE LD. CIT(A PPEALS)-IV, BARODA 5. THE DR, AHMEDABAD BENCH. 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD ITA NO.201/AHD/ 2006 SMT. VEENABEN ROHITBHAI PATEL VS. ITO ASST.YEAR - 2002-03 - 5 - 1. DATE OF DICTATION..22/09/2010 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23/09/2010 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 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 24/09/2010 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 24/09/2010 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