Shri Vijaykumar P. Shah, Ahmedabad V. The CIT, A'bad-I, Ahmedabad

ITA 2073/AHD/2014

• Counselvise Citation: 207320514 RSA 2014
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 09-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: M K PATEL
• Keywords: Assessment record
• Section: 143(3); 54F; 142(1); 263

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI S. S. GODARA, JUDICIAL MEMBER ITA NO. 2073/AHD/2014 / ASSESSMENT YEAR: 2009-10 SHRI VIJAYKUMAR P SHAH, PROP: VIJAY CORPORATION, 1 ST FLOOR, TULIP COMPLEX, B/H. PAKWAN RESTAURANT, ELLISBRIDGE, AHMEDABAD PAN : AKVPS 6263 L THE CIT, AHMEDABAD-1, AHMEDABAD / // / (APPELLANT) / // / (RESPONDENT) ASSESSEE(S) BY : SHRI M. K. PATEL, AR REVENUE BY : SHRI DINESH SINGH, SR. DR. !' # $%& !' # $%& !' # $%& !' # $%& / DATE OF HEARING : 16/04/2015 '( # $%& / // / DATE OF PRONOUNCEMENT: 24/04/2015 )* )* )* )*/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IS DIRE CTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX, AHMEDABAD-1, AHMEDABAD DATED 25.02.2014, PASSED U/S 263 OF THE ACT, FOR THE ASSE SSMENT YEAR 2009-10. 2. THE APPEAL FILED BY THE ASSESSEE IS LATE BY 43 D AYS. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY, WHIC H IS DULY SUPPORTED BY THE AFFIDAVIT. 3. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L EXPLAINED THAT ON 8 TH APRIL 2014 THE ASSESSEES MATERNAL GRANDMOTHER EXPI RED. THE ASSESSEE ITA NO.2073/AHD/2014 SHRI VIJAYKUMAR P SHAH V CIT AY: 2009-10 2 THEREAFTER REMAINED BUSY AND PERTURBED FOR SOMETIME WHICH DELAYED THE FILING OF THE APPEAL BY 43 DAYS. 4. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, OBJECTED TO THE CONDONATION OF DELAY. 5. AFTER CONSIDERING THE FACTS OF THE CASE AND SUBM ISSIONS OF BOTH THE SIDES, WE DEEM IT PROPER TO CONDONE THE DELAY AND A DMIT THE APPEAL FOR HEARING ON MERITS. IN THIS APPEAL BY THE ASSESSEE, FOLLOWING GROUNDS WERE RAISED:- 1. THAT ON FACTS, AND IN LAW, THE LEARNED CIT HAS GRIE VOUSLY ERRED IN ASSUMING JURISDICTION U/S 263 OF THE ACT. 2. THAT ON FACTS, AND IN LAW, THE LEARNED CIT HAS GRIE VOUSLY ERRED IN SETTING ASIDE THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT, WITHOUT ESTABLISHING THAT IT IS ERRONEOUS AND PREJUDICIAL T O THE INTEREST OF REVENUE. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND ANY GROUND OF APPEAL. 6. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL PLACED BEFORE US. THE COMMISSIONER OF INCOME-TAX TREATED THE ASS ESSMENT ORDER DATED 02.12.2011 TO BE ERRONEOUS AND PREJUDICIAL TO THE I NTEREST OF THE REVENUE ON THE GROUND THAT THE ASSESSING OFFICER ALLOWED THE C LAIM OF RS.20.79 LACS U/S. 54F WITHOUT PROPER EXAMINATION. AT THE TIME OF HEAR ING, THE LD. COUNSEL FURNISHED BEFORE US A PHOTOCOPY OF THE ORDER-SHEET ENTRY RECORDED BY THE ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS AND THE REPLY FURNISHED BY THE ASSESSEE THEREON. HE POINTED OUT THAT DURING THE ASSESSMENT PROCEEDINGS, HEARING TOOK PLACE SEVERAL TIMES; AND ON TWO OCCASIONS, A SPECIFIC QUERY WITH REGARD TO ALLOWABILITY OF DEDUC TION 54F WAS RAISED. IN THIS REGARD, HE REFERRED TO ORDER-SHEET ENTRY DATED 19.07.2011 AND 03.08.2011. HE ALSO REFERRED TO THE ASSESSEES REPLY IN THIS RE GARD DATED 29.07.2011 AND ITA NO.2073/AHD/2014 SHRI VIJAYKUMAR P SHAH V CIT AY: 2009-10 3 23.08.2011, WHEREIN THE ASSESSEE JUSTIFIED THE DEDU CTION OF CLAIM U/S 54F. THE LD. DEPARTMENTAL REPRESENTATIVE WAS DIRECTED TO PRODUCE THE ASSESSMENT RECORDS. HE PRODUCED THE ASSESSMENT RECO RDS BEFORE US AND FROM THE ORIGINAL ORDER-SHEET ENTRY ALSO IT IS SEEN THAT THE ASSESSING OFFICER DID RAISE THE QUERY WITH REGARD TO THE ELIGIBILITY OF DEDUCTION U/S 54F BY THE ASSESSEE. IN THE ABOVE CIRCUMSTANCES, WE ARE UNABL E TO AGREE WITH THE FINDINGS OF THE COMMISSIONER OF INCOME-TAX THAT THE ASSESSING OFFICER DID NOT MAKE PROPER INQUIRY IN THIS REGARD. IT IS TRUE THAT IN THE ASSESSMENT ORDER, THERE IS NO SPECIFIC DISCUSSION WITH REGARD TO THE ALLOWABILITY OF DEDUCTION U/S 54F; HOWEVER, FROM THE RECORD, WHICH IS PRODUCED BEFORE US, IT IS EVIDENT THAT THE ASSESSING OFFICER DID MAKE S UFFICIENT ENQUIRIES IN THIS REGARD. THEREFORE, THE ASSESSMENT ORDER CANNOT BE S AID TO BE ERRONEOUS ON THE GROUND THAT THE ASSESSING OFFICER FAILED TO CON DUCT THE INQUIRY. THAT MERELY BECAUSE IN THE OPINION OF THE COMMISSIONER O F INCOME-TAX SOME MORE INQUIRY WAS REQUIRED WOULD NOT MAKE THE ASSESS MENT ORDER ERRONEOUS IN THE LIGHT OF PROVISIONS OF SECTION 263. WHILE T AKING THIS VIEW, WE DERIVE SUPPORT FROM THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ARVIND JEWELLERS, REPORTED IN [2003] 259 ITR 502 (GUJ.), WHEREIN THEIR LORDSHIPS OF THE HONBLE HIGH COURT HAS HELD AS UNDER: HELD, THAT THE FINDING OF FACT BY THE TRIBUNAL WAS THAT THE ASSESSEE HAD PRODUCED RELEVANT MATERIAL AND OFFERED EXPLANATIONS IN PURSUANCE OF THE NOTICES ISSUED UNDER SECTION 142(1) AS WELL AS SECT ION 143(2) OF THE ACT AND AFTER CONSIDERING THE MATERIAL AND EXPLANATIONS, TH E INCOME-TAX OFFICER HAD COME TO A DEFINITE CONCLUSION. SINCE THE MATERIAL W AS THERE ON RECORD AND THE SAID MATERIAL WAS CONSIDERED BY THE INCOME-TAX OFFI CER AND A PARTICULAR VIEW WAS TAKEN, THE MERE FACT THAT DIFFERENT VIEW CAN BE TAKEN SHOULD NOT BE THE BASIS FOR AN ACTION UNDER SECTION 263. THE ORDER OF REVISION WAS NOT JUSTIFIED. ITA NO.2073/AHD/2014 SHRI VIJAYKUMAR P SHAH V CIT AY: 2009-10 4 RESPECTFULLY FOLLOWING THE ABOVE DECISION OF HONB LE JURISDICTIONAL HIGH COURT, WE QUASH THE ORDER OF THE COMMISSIONER OF INCOME-TAX PASSED U/S 263 OF THE ACT AND RESTORE THE ASSESSMENT ORDER DATED 02.12.2011. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 24 TH APRIL, 2015 AT AHMEDABAD. SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 24/04/2015 BIJU T., PS )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$ )* # $+ ,)+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. -- $ !. / CONCERNED CIT 4. !. ( ) / THE CIT(A) 5. +12 $ , , / DR, ITAT, AHMEDABAD 6. 23 4' / GUARD FILE . )*! )*! )*! )*! / BY ORDER, TRUE COPY 5 55 5/ // / -6 -6 -6 -6 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD