M/s. Shree Hari Developers, Baroda V. The Income Tax Officer, Ward-2(6), Baroda

ITA 2129/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8146 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 17-08-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 18-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANTOSH KARNANI
• Keywords: Initiation of penalty proceedings
• Section: 143(3)

Judgement Text

SMC-ITA NO. 2129/AHD/2014 SHREE HARI DEVELOPERS VS. ITO ASSESSMENT YEAR: 2007-08 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ] ITA NO. 2129/AHD/2014 ASSESSMENT YEAR : 2007-08 M/S. SHREE HARI DEVELOPERS ............APPE LLANT 10, GOKUL COMPLEX,B/H. KEYA MOTORS, CHHANI JAKAT NAKA, VADODARA 390 024 [PAN ABFFS 7575 J] VS. INCOME TAX OFFICER WARD 2 (6),BARODA .......................RESPONDENT APPEARANCES BY: URVASHI SHODHAN FOR THE APPELLANT SANTOSH KARNANI FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 22.11.2017 DATE OF PRONOUNCING THE ORDER : 22.11.2017 D I C T A T E D O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT CH ALLENGES CORRECTNESS OF ORDER DATED 13.03.2014 PASSED BY THE CIT(A)-II, BARODA IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) THE INCOME-TAX ACT, 1961, FOR THE AS SESSMENT YEAR 2007-08, ON THE FOLLOWING GROUNDS:- 1. THE LEARNED INCOME TAX OFFICER AND COMMISSIONER OF INCOME-TAX (APPEALS) HAVE ERRED IN LAW AND ON FACTS IN MAKING ADDITION TO THE EXTENT OF PROFIT ON SALE OF UNUTILIZED PROFIT. 2. BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN INITIATION OF PENALTY PROCEEDINGS. 3. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER, DELET E &/OR AMEND ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. DURING THE COURSE OF HEARING OF THIS APPEAL, LEA RNED COUNSEL FOR THE ASSESSEE POINTS OUT THAT THE MATTER HAS BEEN REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR SMC-ITA NO. 2129/AHD/2014 SHREE HARI DEVELOPERS VS. ITO ASSESSMENT YEAR: 2007-08 PAGE 2 OF 3 FRESH ADJUDICATION IN THE LIGHT OF THE HONBLE JURI SDICTIONAL HIGH COURTS DECISION IN THE CASE OF CIT VS. MOON STAR DEVELOPERS, [2014] 367 IT R 621 (GUJ) AND THE MATTER IS RIGHT NOW PENDING BEFORE THE ASSESSING OFFICER. SH E HAS TWO PRAYERS BEFORE ME I.E. (I) SINCE THE SLP IS ADMITTED AGAINST THE HONBLE J URISDICTIONAL HIGH COURTS JUDGEMENT IN THE CASE OF MOON STAR DEVELOPERS (SUPR A), THE ASSESSING OFFICER SHOULD GIVE DUE EFFECT TO THE ORDER OF THE HONBLE SUPREME COURT AS AND WHEN ITHE JUDGMENT IS DELIVERED BY HONBLE SUPREME COURT; AND (II) THAT WHILE ADJUDICATING ON THE MATTER AFRESH, THE ASSESSING OFFICER SHOULD ALS O TAKE INTO ACCOUNT THE SUBSEQUENT LEGAL DEVELOPMENT POST MOON STAR DEVELOP ERS DECISION. AS REGARDS HER FIRST POINT, SHE DOES NOT HAVE MUCH TO SAY BEYOND S TATING THAT THE MATTER IS PENDING FOR ADJUDICATION BEFORE HONBLE SUPREME COURT AND A S SUCH WE SHOULD WAIT FOR HOMBLE SUPREME COURTS WORD ON THE ISSUE. AS REGAR DS THE SECOND LIMB OF HER SUBMISSIONS, SHE POINTS OUT THAT LAW HAS NOT STOPPE D DEVELOPING AFTER MOON STAR DEVELOPERS. SHE MENTIONS THAT THERE ARE DECISIONS O F HONBLE JURISDICTIONAL HIGH COURT AS ALSO OF THE DIVISION BENCH OF THIS TRIBUNA L WHICH HAVE CLARIFIED AND IN FACT SOMEWHAT RELAXED THE LAW LAID DOWN BY THEIR LORDSHI PS IN THE CASE OF MOON STAR DEVELOPERS. SHE URGES ME TO DIRECT THE ASSESSING OF FICER TO TAKE INTO ACCOUNT THESE DEVELOPMENTS AS WELL. 3. LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSES BOTH THE REQUESTS MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITS TH AT IT IS ONLY ELEMENTARY THAT WHEN A JUDGMENT OF THE HONBLE SUPREME COURT COMES IT IS TO BE GIVEN DUE EFFECT, AND, AS SUCH, AS AND WHEN THE JUDGMENT WILL BE DELI VERED, THE ASSESSEE WILL GET THE RESULTANT RELIEF. THE PROCEEDINGS BEFORE THE ASSES SING OFFICER CANNOT BE HELD IN ABEYANCE BEYOND THE TIME PERMITTED IN LAW NOR THE B INDING EFFECT OF THE HONBLE HIGH COURT BE IGNORED. IT IS OF COURSE FOR THE ASSESSEE TO PROTECT HIS LEGITIMATE INTERESTS BY ENSURING THAT HE HAS THE BENEFIT OF RELAXATION, IF ANY GIVEN BY THE HONBLE SUPREME COURT. AS REGARDS THE SECOND LIMB OF LEARNED COUNSE LS REQUEST, LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY STATES THAT HE D OES NOT HAVE ANY OBJECTION TO THE SUBSEQUENT LEGAL DECISIONS BEING TAKEN INTO ACCOUNT WHILE ASSESSING OFFICERS FRESH ADJUDICATION. 4. IN VIEW OF THE ABOVE DISCUSSION, I AM OF THE CON SIDERED VIEW THAT, ALL THAT IS NECESSARY TO SAY AT THIS STAGE IS, THOUGH AT THE CO ST OF STATING THE OBVIOUS BUT WITH THE CONSENT OF THE PARTIES, THAT WHILE ADJUDICATING THE MATTER AFRESH, THE ASSESSING OFFICER WILL NOT ONLY TAKE INTO ACCOUNT THE LAW LAI D DOWN IN THE CASE OF MOON STAR DEVELOPERS (SUPRA) BUT ALSO TAKE INTO ACCOUNT THE O THER BINDING JUDICIAL PRECEDENTS ON THE SAID ISSUE INCLUDING SUBSEQUENT DECISIONS ON THE SAME ISSUE OF THE HONBLE JURISDICTIONAL HIGH COURT AS ALSO BY THE DECISIONS OF THIS TRIBUNAL. THAT IS AN INHERENT PART OF THE FRESH ADJUDICATION IN ACCORDANCE WITH T HE LAW AND IN THE LIGHT OF THE LAW LAID DOWN BY HONBLE JURISDICTIONAL HIGH COURT IN T HE CASE OF MOONSTAR DEVELOPERS SMC-ITA NO. 2129/AHD/2014 SHREE HARI DEVELOPERS VS. ITO ASSESSMENT YEAR: 2007-08 PAGE 3 OF 3 (SUPRA). THESE OBSERVATIONS, HOWEVER, DO NOT EFFECT WHAT HA S BEEN DECIDED BY THE CIT(A) AND TO THAT EXTENT NO INTERFERENCE ON SUBSTA NTIVE GROUND IS THUS CALLED FOR. GRIEVANCES OF THE ASSESSEE ARE DISMISSED BUT SUBJEC T TO THE OBSERVATIONS AS ABOVE. 5. IN THE RESULT, APPEAL IS DISMISSED SUBJECT TO TH E OBSERVATIONS AS ABOVE. PRONOUNCED AND DICTATED IN THE OPEN COURT TODAY ON THE 22 ND NOVEMBER, 2017. SD/- PRAMOD KUMAR (ACCOUNTANT M EMBER) AHMEDABAD, THE 22 ND DAY OF NOVEMBER, 2017 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ......2 PAGES DICTATION PAD ATTACHED.22.11.2017 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: ..22.11.2017. ........ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: ... 22.11.2017.... . 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 22.11.2017... 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : ... 29.11.2017.. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: