The ITO, Ward-9(4), Ahmedabad V. Shri Balwanbhai Kupaji Prajapati, Ahmedabad

ITA 2458/AHD/2011

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8899 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 20-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 29-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: KISHOR GOYAL
• Keywords: Opportunity of being heard
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NOS: 2458 & 2662/AHD/2011 (ASSESSMENT YEAR: 2008-09) INCOME-TAX OFFICER, WARD- 9(4), AHMEDABAD SHRI BALWANTBHAI KUPAJI PRAJAPATI 7, JAGDISH ESTATE, NR. CALICO NAGAR, SARKHEJ ROAD, NAROL, AHMEDABAD V/S V/S SHRI BALWANTBHAI KUPAJI PRAJAPATI 7, JAGDISH ESTATE, NR. CALICO NAGAR, SARKHEJ ROAD, NAROL, AHMEDABAD INCOME-TAX OFFICER, WARD- 9(4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AEKPP6945D APPELLANT BY : SMT. SONIA KUMAR, SR. D.R. RESPONDENT BY : SHRI KISHOR GOYAL, A.R. ( )/ ORDER DATE OF HEARING : 20 -03-201 7 DATE OF PRONOUNCEMENT : 22 -03-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NOS. 245 8 & 2662/AHD/2011 . A.Y. 2008-0 9 2 1. ITA NOS. 2458 & 2662/AHD/2011 ARE CROSS APPEALS BY THE REVENUE AND THE ASSESSEE PREFERRED AGAINST THE VERY SAME ORDER OF T HE LD. CIT(A)-XV, AHMEDABAD DATED 27.07.2011 PERTAINING TO A.Y. 2008- 09. 2. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE DISP OSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVIT Y. 3. THE GRIEVANCE OF THE REVENUE RELATES TO THE DELETIO N OF THE DISALLOWANCE OF RS. 5,85,84,437/- MADE BY THE A.O. U/S. 40(A)(IA) O F THE ACT. 4. THE SUBSTANTIVE GRIEVANCE OF THE ASSESSEE IS THREE FOLD. THE FIRST GRIEVANCE RELATES TO THE DISALLOWANCE OF RS. 28,58,150/- UPHE LD BY THE LD. CIT(A). THE SECOND GRIEVANCE OF THE ASSESSEE RELATES TO THE ADD ITION OF RS. 29,89,760/- BY INVOKING PROVISIONS OF SECTION 145(3) OF THE ACT AND THE THIRD GRIEVANCE RELATES TO THE ADDITION OF RS. 38,10,393/- BEING OU TSTANDING SUNDRY CREDITORS TO BE BOGUS. 5. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSE E DREW OUR ATTENTION TO THE ASSESSMENT ORDER AND POINTED OUT THAT THE ASSES SMENT IS FRAMED U/S. 143(3) OF THE ACT READ WITH SECTION 144 OF THE ACT. IT IS THE SAY OF THE LD. COUNSEL THAT THE ASSESSMENT ORDER IS NOT AS PER THE LAW. REPRESENTATIVES OF BOTH SIDES AGREED THAT THE IMPUGNED ISSUES MAY BE R ESTORED TO THE FILES OF THE A.O. TO BE DECIDED AS PER THE PROVISIONS OF THE LAW. ITA NOS. 245 8 & 2662/AHD/2011 . A.Y. 2008-0 9 3 6. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ERS OF THE AUTHORITIES BELOW QUA THE ISSUES. IT IS TRUE THAT THE ASSESSMEN T ORDER IS MADE U/S. 143(3) OF THE ACT READ WITH SECTION 144 OF THE ACT. IT IS EQUALLY TRUE THAT THE ASSESSMENT ORDER SO FRAMED IS NOT AS PER THE PROVIS IONS OF THE LAW. AS THE REPRESENTATIVES OF BOTH THE SIDES AGREED THAT THE M ATTER SHOULD BE RESTORED TO THE FILES OF THE A.O., WE, ACCORDINGLY, RESTORE THE ENTIRE ASSESSMENT TO THE FILES OF THE A.O. AND THE A.O. IS DIRECTED TO FRAME THE ASSESSMENT AS PER THE PROVISIONS OF THE LAW AFTER GIVING A REASONABLE AND FAIR OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, BOTH THE APPEALS ARE TREATED AS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 22 - 03- 20 17 SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 22 /03/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD