Abhinandan B. Shah, Vadodara V. The Income Tax Officer, Ward-2(1), Now Ward-1(2)(1), Baroda

ITA 2015/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1507 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-04-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 08-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P B PARMAR
• Keywords: Capital asset
• Section: 143(3); 2(14)

Judgement Text

I.T.A. NO . 2015 /AHD/ 20 1 5 ASSESSMENT YEAR: 20 10 - 11 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD B BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND S.S. GODARA JM ] I.T.A. NO. 2015 /AHD/ 20 1 5 ASSESSMENT Y EAR : 20 10 - 11 ABHINANDAN B. SHAH .... .......... .APPELLANT C/O. J.R.S. PATEL & CO., CHARTERED ACCOUN T ANTS, 106, ANURAG COMMERCIAL CENTRE , R.C. DUTT ROD, VADODARA 390 007. [ PAN: A FOPS 7930 Q ] VS. INCOME TAX OFFICER, WARD 1(2)(1) BARODA . ............. . RESPONDENT APPEARANCES BY: P.B. PARMAR , FOR THE APPELLANT R.K. GUPTA , FOR THE RESPONDENT D ATE OF CONCLUDING THE HEARING : APRIL 4 TH , 201 6 DATE OF PRONOUNCING THE ORDER : MAY 31 ST , 201 6 O R D E R PER PRAMOD KUMAR AM : BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HAS CHALLENGED CORRECTNESS OF THE O RDER DATED 16.03.2015 PASSED BY THE LEARNED CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER), FOR THE ASSESSMENT YEAR 2010 - 11 ON THE FOLLOWING GROUNDS : - 1.00 ON THE FACTS AND CIRCUMSTA NCES OF YOUR APPELLANT S CASE AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL ON WRONG PLEA THAT YOUR APPELLANT HAS NOT BEEN ABLE TO DEMONSTRATE A S TO HOW HE IS AGGRIEVED WITH THE PROTECTIVE ASSESSMENT WHEN DEMAND IS NOT BEING ENFORCED BY THE ASSESSING OFFICER. I.T.A. NO . 2015 /AHD/ 20 1 5 ASSESSMENT YEAR: 20 10 - 11 PAGE 2 OF 3 1.01 YOUR APPELLANT SUBMITS THAT IT WAS FULLY EXPLAINED THAT ADDITION OF THE SAME AMOUNT WAS MADE IN THE HANDS OF BHARAT M. SHAH (HUF) ON SUBSTANTIVE BASIS AND IN THE HANDS OF YOUR APPELLANT ON PROTECTIVE BASIS. IT WAS ALSO EXPLAIN ED THAT THE SAID INCOME IS NOT TAXABLE IN THE HANDS OF YOUR APPELLANT FOR T HE ASSESSMENT YEAR UNDER CONSIDERATION SINCE THE SUM WAS RECEIVED DURING THE PREVIOUS YEAR 2008 - 09 RELEVANT TO ASSESSMENT YEAR 2009 - 10 (AND NOT ASSESSMENT YEAR 2010 - 11). FURTHER, T HE ITEMS SOLD BY YOUR APPELLANT WERE OF PERSONAL EFFECTS I.E. FURNITURE & FIXTURES AS SPECIFICALLY EXCLUDED FROM THE DEFINITION OF CAPITAL ASSETS VI D E CLAUSE (II) OF SECTION 2(14) OF THE ACT, SURPLUS THEREOF ARE NOT CHARGEABLE TO TAX. HOWE V ER, THE LD. CIT (A) OVERLOOKED SAID F A CTS WHILE DISPOSING OFF THE APPEAL OF YOUR APPELLANT . 2.03 YOUR APPELLANT PRAYS Y OUR H ONOUR TO HOLD SO NOW AND DIRECT THE LD. A . O . TO DELETE A DDITIONS MADE . 2. IN THE PRESENT CASE, THE ASSESSMENT WAS MADE BY THE ASSESSEE BEFORE U S ON PROTECTIVE BASIS WHILE SUBSTANTIVE ASSESSMENT IN RESPECT OF THE SAME AMOUNT OF RS.10,00,000/ - WAS MADE IN THE HANDS OF BHARAT MOTI CHAND SHAH ( HUF ) . THE BACKGROUND IN WHICH THE ADDITION WAS MADE WAS THIS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS I N THE CASE OF BHARAT MOTI CHAND SHAH ( HUF ) , IT WAS SEEN THAT THE SALE OF FURNITURE , FIXTURE , ELECTRIC AND ELECTRONIC FITTINGS ETC. WERE SAID TO HAVE BEEN MADE BY BHARAT MOTI CHAND SHAH ( HUF ) BUT THEN THESE ASSETS BELONG TO THE INDIVIDUAL I.E. THE ASSESSEE BE FORE US. AS NO INCOME WAS DISCLOSED BY THE ASSESSEE IN HIS INDIVIDUAL RETURN, AN ADDITION OF RS.10,00,000/ - WAS MADE IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS. WHEN THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A), THE LD. CIT(A) IN TER ALIA OBSERVED THAT APPELLANT HAS NOT BEEN ABLE TO D EMONSTRATE AS TO HOW HE IS AGGRIEVED WITH THE PROTECTIVE ASSESSMENT WHEN DEMAND IS NOT BEING ENFORCED BY THE ASSESSING OFFICER. IT WAS ALSO NOTED BY THE LD. CIT(A) THAT SINCE THE APPELLANT HAS NOT P ROVED THAT SUBSTANTIVE ADDITION IN THE HANDS OF BHART MOTI CHAND SHAH ( HUF ) WAS NOT DISPUTED BY HIM AS KARTA, PROTECTIVE ASSESSMENT MADE BY THE ASSESSING OFFICER IS UPHELD. ASSESSEE IS AGGRIEVED AND IS IN APPEAL BEFORE US. I.T.A. NO . 2015 /AHD/ 20 1 5 ASSESSMENT YEAR: 20 10 - 11 PAGE 3 OF 3 3. WE HAVE HEARD THE RIVAL SUBMIS SIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 4. LEARNED COUNSEL FOR THE ASSESSEE INVITES OU R ATTENTION TO ORDER DATED 21 ST NOVEMBER, 2014 PASSED BY A CO - ORDINATE BENCH OF TH IS TRIBUNAL WHEREIN MATTER REGARDING SUBSTANTIVE ASSESSMENT HAS BEEN REMITTED TO THE FILE OF LD.CIT(A) FOR ADJUDICATION ON MERITS. AS THE SUBSTANTIVE ASSESSMENT ITSELF IS BEFORE THE LD. CIT(A), WE CONSIDER IT FIT AND PROPER TO REMIT THIS PROTECTIVE ASSESS MENT FOR FRESH CONSIDERATION BY THE LD. CIT(A). IN CASE THE SUBSTANTIVE ADDITION IS CONFIRMED IN THE HANDS OF HUF, NOTHING REALLY SURVIVES FOR BEING CONFIRMED IN THE HANDS OF THE PRESENT ASSESSEE. HIS OBSERVATION ABOUT LACK OF MERITS IN ASSESSEE S GRIEVA NCE SINCE RESULT IN DEMAND IS NOT BEING PRESSED, DEVOID OF ANY LEGALLY SUSTAINABLE MERITS. WE, THEREFORE, REJECT THE SAME. IN ANY CASE, THE LD. CIT(A) HAS TO ADJUDICATE ON THE MATTER ON MERITS IN ACCORDANCE WITH LAW AND BY WAY OF A SPEAKING ORDER. 5. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. P RONOUNCED IN THE OPEN COUR T TODAY ON THE 31 ST DAY OF MAY , 2016 . SD/ - SD/ - S.S. GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 31 ST DAY OF MAY , 2016. PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD