Shri Bharat J. Rao, Ahmedabad V. The ACIT.,Cent.Circle-1(3), Ahmedabad

ITA 2207/AHD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6286 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-06-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 09-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMIR TEKRIWA LA
• Keywords: Loose papers; Opportunity of being heard
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBL E SHRI A.K.GARODIA, A.M.) I.T.A. NOS. 2202 TO 2207/AHD./2008 ASSESSMENT YEARS : 1998-1999 TO 2003-2004 BHARAT J. RAO, AHMEDABAD -VS- ACIT, CENTRAL CIRCLE-1(3), AHMEDABAD (PAN : AAWPR 4445A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.N.SOPARKAR WITH SHRI R. B.RATHI, A.RS RESPONDENT BY : SHRI SAMIR TEKRIWALA, SR.D. R. O R D E R PER BENCH : THESE SIX APPEALS FILED BY THE ASSESSEE ARE AGAINS T THE COMMON ORDER DATED 31- 03-2008 OF LEARNED COMMISSIONER OF INCOME TAX(APPEA LS)-III, AHMEDABAD FOR THE ASSESSMENT YEARS 1998-1999 TO 2003-2004. 2. AT THE OUTSET, SHRI S.N.SOPARKAR, APPEARING ON B EHALF OF THE ASSESSEE, POINTED OUT THAT VIE LETTER DATED 18.11.2010, THE ASSESSEE HAS RAISED THE FOLLOWING ADDITIONAL GROUND FOR ALL THE ASSESSMENT YEARS. THE NOTICE ISSUED UNDER SECTION 153C R.W.S. 153A OF THE ACT ON THE BASIS OF LOOSE PAPERS FOUND AT THE SEARCHED PREMISES WHICH D O NOT BELONG TO THE APPELLANT IS WITHOUT JURISDICTION AND VOID AB INITI O THAT DESERVES TO BE QUASHED . 2.1 THE COUNSEL OF THE ASSESSEE POINTED OUT THAT TH E AFORESAID ADDITIONAL GROUND IS A LEGAL GROUND. THEREFORE, AS PER THE DECISION OF T HE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER REPORTED IN 229 ITR 383 (SC), IT CAN BE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL. EXPLAINING THE REAS ONS FOR NOT RAISING THIS ADDITIONAL GROUND BEFORE THE LD. CIT(A), THE COUNSEL OF THE AS SESSEE EXPLAINED THAT THIS ADDITIONAL GROUND IS RAISED, IN VIEW OF THE DECISIO N OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAYBHAI N. CHANDRANI VS- ACIT IN SPECIAL CIVIL APPLICATION ITA NO.2202 TO 2207/AHD/2008 2 NO.13787 OF 2009 REPORTED IN 231 CTR (GUJ.) 474. TH E COUNSEL OF THE ASSESSEE FURTHER DREW OUR ATTENTION TO FIRST PAGE OF THE ASS ESSMENT ORDER FOR THE ASSESSMENT EYAR 1998-99 WHEREIN THE AO HAS MENTIONED THAT A SEARCH IN BATA GROUP OF COMPANIES WAS CARRIED OUT ON 04.09.2003. THE RESIDENCE OF SHRI KI RIT B. MODI, SHUBH COMPLEX, HIGHWAY, KALOL, MEHSANA WAS ALSO COVERED AND LOOSE PAPERS FILE CONTAINING DOCUMENTS, ETC. PERTAINING TO SURYAMANDIR CO.OP. HO USING SOCIETY, MANAVMANDIR CO.OP. HOUSING SOCIETY AND VITHALNAGAR CO.OP. HOUSI NG SOCIETY WERE FOUND AND SEIZED. THE COUNSEL OF THE ASSESSEE POINTED OUT THA T NOTHING BELONGING TO THE ASSESSEE WAS SEIZED. THEREFORE, AS PER THE JUDGMENT OF THE H ONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAYBHAI N. CHANDRANI ( SUPRA ), IT MAY BE HELD THAT THERE IS NO JUSTIFICATION FO R ASSUMING THE JURISDICTION/ ISSUING NOTICE UNDER SEC TION 153C OF THE I.T. ACT, 1961. THEREFORE, THE ASSESSMENT FRAMED FOR ALL THE ASSESS MENT YEARS BE QUASHED AND SET ASIDE. 3. ON THE OTHER HAND, SHRI SAMIR TEKRIWAL, THE LD. D.R., APPEARING ON BEHALF OF THE REVENUE, STRONGLY OBJECTED TO THE AFORESAID PLE A OF THE LD. COUNSEL OF THE ASSESSEE. HE FURTHER POINTED OUT THAT THE ASSESSEE FILED THE APPEALS IN QUESTION ON 09.06.2009. THE ADDITIONAL GROUND, NOW RAISED, IS B ELATED AND ON THIS GROUND ALONE, IT MAY NOT BE ADMITTED. ON MERIT ALSO, THE LD. D.R. AR GUED AT LENGTH, POINTING OUT THAT JUDGEMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAYBHAI N. CHANDRANI ( SUPRA ), RELIED ON BY THE LD. COUNSEL OF THE ASSESSEE, IS NOT APPLICABLE TO THE FACTS OF ASSESSEES CASE. 3.1 IN REJOINDER, THE COUNSEL OF THE ASSESSEE, RELI ED ON THE JUDGEMENT OF THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF SHILPA ASSOCIATES VS- ITO REPORTED IN 263 ITR 317, WHEREIN IT WAS HELD THAT THERE IS NO T IME LIMIT OR RIGID RULE FOR FILING ADDITIONAL GROUND. THE PERMISSION TO FILE THE ADDIT IONAL GROUND BE GRANTED. 4. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. KEEPING IN VIEW THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER ( SUPRA ), WE ADMIT THE ADDITIONAL GROUND OF APPEAL. THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE O F CIT-VS- TOLLARAM HASSOMAL ITA NO.2202 TO 2207/AHD/2008 3 REPORTED IN 298 ITR 22 (MP) HELD THAT THE TRIBUNAL PERMITTING ADDITIONAL GROUND TO BE RAISED FOR THE FIRST TIME, TRIBUNAL SHOULD REMAND T HE CASE TO THE COMMISSIONER (APPEALS). WE, THEREFORE, FOLLOWING THE JUDGEMENT O F THE HONBLE MADHYA PRADESH HIGH COURT, SET ASIDE THE ORDERS OF THE LD. CIT(A) AND DIRECT THE LD. CIT(A) TO DECIDE THE ADDITIONAL GROUND RAISED IN ALL THE SIX APPEALS . AFTER ADJUDICATING THE ADDITIONAL GROUND, IF NECESSARY, THE LD. CIT(A) WILL DECIDE AL L THE GROUNDS, RAISED ORIGINALLY, AFRESH, AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 5. IN THE RESULT, FOR STATISTICAL PURPOSES, ALL THE SIX APPEALS FILED BY THE ASSESSEE ARE TREATED AS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN CO URT ON 30.06.2011 SD/- SD/- (A.K.GARODIA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30/06/2011 COPY OF THE ORDER IS FORWARDED TO:- (1) THE ASSESSEE (2) THE DEPARTMENT. (3) CIT (A.) CONCERNED. (4) CIT CONCERNED. (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AH MEDABAD. TALUKDAR/ SR. P.S.