Bhavikaben Kalpeshbhai Lavari, Surat V. The Income tax Officer,Ward-9(1), Surat

ITA 2497/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5955 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 25-05-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 02-07-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JYOTI LAXMI
• Assessee Lawyers: R N VEPARI
• Keywords: Principle of natural justice; Question of law; Reassessment proceedings; Set aside
• Section: 133A; 234B; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : A HMEDABAD CAMP AT SURAT (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON'BLE SH RI D.C. AGRAWAL , A.M.) I.T.A. NO. 2497/AHD./2008 ASSESSMENT YEAR : 2001-2002 BHAVIKABEN KALPESHBHAI LAVARI, SURAT -VS.- I NCOME TAX OFFICER, WARD-9(1), SURAT ( PAN : ABLPL 8979 M ) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.N. VEPARI RESPONDENT BY : SMT. JYOTI LAXMI, SR. D.R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 17.03.2008 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-V, SURAT FOR TH E ASSESSMENT YEAR 2001-02. 2. VARIOUS GROUNDS RAISED BY THE ASSESSEE IN HER AP PEAL ARE AS UNDER :- (1) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN CONFIRMING ADDITION OF RS.17,24,223/- AS UNEXPLAINE D OPENING CAPITAL. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION IS REQUIRED TO BE DELETED. (3) THE APPELLANT FURTHER SUBMITS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE DELETED THE ADDIT ION ON THE GROUND THAT THE ASSESSING OFFICER HAS RELIED ON PAPERS AND STATEMENTS NOT GIVING COPIES THEREOF THUS DENYING NATURAL JUSTICE TO THE APPELLANT. (4) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE DELETED INTEREST U/S. 234A OF THE ACT. (5) THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE DELETED INTEREST U/S. 234B OF THE ACT. 2.1. AT THE TIME OF HEARING BEFORE US, AN ADDITIONA L GROUND WAS ALSO RAISED BY THE ASSESSEE, WHICH READS AS UNDER :- REOPENING IS BAD IN LAW AS REASONS FOR REOPENING W ERE NOT GIVEN. 2 ITA NO. 2497/AHD/2008 3. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF A SSESSEE SHRI R.N. VEPARI, LD. COUNSEL APPEARED AND CONTENDED THAT THE AFORESAID ADDITIONA L GROUND BE ADMITTED AS IT IS GOING TO THE ROOT OF THE MATTER. THE LD. COUNSEL OF THE ASSESSEE FURT HER POINTED OUT THAT IN THE IMPUGNED ORDER, THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) REJ ECTED THE AFORESAID ADDITIONAL GROUND BY STATING THAT THE GROUND IS PURELY LEGAL GROUND AND DOES NOT REQUIRE EXAMINATION OF ANY NEW FACT AND, THEREFORE, IN VIEW OF THE JUDGMENT OF THE HON' BLE SUPREME COURT IN THE CASE OF JUTE CORPORATION, ADDITIONAL GROUND BE ADMITTED. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT IN THIS CASE, DESPITE THE REQUEST OF THE ASSES SEE TO GIVE COPY OF THE REASONS RECORDED AS PER THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CA SE OF GKN DRIVESHAFTS INDIA LTD. [259 ITR 19], THESE WERE NOT MADE AVAILABLE. RELIANCE WAS AL SO PLACED ON THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF MITHILESH KUMAR TRIPATHI VS.- CIT & OTHERS [ (2006) 280 ITR 16 (ALL.)], WHEREIN IT WAS HELD THAT REASONS FO R RECORDED SHOULD BE FURNISHED ALONGWITH NOTICE UNDER SECTION 148 OF THE ACT, ITSELF ON THE GROUND OF NATURAL JUSTICE. THIS IS ALSO MATERIAL BECAUSE IN THE ASSESSMENT ORDER THERE ARE VARIOUS R EFERENCE TO VARIOUS FACTS WHICH ARE TOTALLY IRRELEVANT AND, THEREFORE, EXAMINATION OF THE REASO NS RECORDED FOR RECOVERY BECOMES IMPORTANT AND ESSENTIAL. IN THE ASSESSMENT ORDER, THE ASSESSI NG OFFICER HAS MENTIONED ABOUT SURVEY UNDER SECTION 133A OF THE ACT, STATEMENT OF SHRI PANKAJ D ANAWALA, THE UTILIZATION OF SO-CALLED CAPITAL BUILT UP FILES FOR THE BENEFIT OF CERTAIN GROUPS, R EFERENCES TO ANNEXURE A-699 AND THE SO-CALLED FILE OF THE ASSESSEE NO. 3938. SINCE THE ABOVE IS T HE BASIS FOR REASSESSMENT PROCEEDINGS, IT IS NECESSARY THAT COPIES OF THE RELEVANT PAPERS ALSO O UGHT TO HAVE BEEN GIVEN TO THE ASSESSEE WITH THE ASSESSEE GIVEN AN OPPORTUNITY TO CROSS EXAMINE. NOTHING HAS BEEN DONE IN THIS REGARD. THE LD. COUNSEL OF THE ASSESSEE FAIRLY ADMITTED THAT THE AS SESSEE HAD NOT ASKED FOR ALL THIS BECAUSE THE ASSESSEE BEING AN UNEDUCATED LADY WAS NOT AWARE OF THE LEGAL IMPLICATIONS AND HER RIGHTS. BUT THAT DOES NOT MEAN THAT SHE SHOULD BE DEPRIVED OF C ERTAIN BASIC RIGHTS. IT WAS FURTHER SUBMITTED THAT SINCE THE ASSESSING OFFICER WANTED TO RELY ON THESE PAPERS AND MAKE ADDITION, THE ASSESSING OFFICER HIMSELF OUGHT TO HAVE GIVEN THESE PARTICULA RS AND ISSUE SHOW-CAUSE NOTICE AFTER FURNISHING THE DETAILS. THE ASSESSING OFFICER IS NO T EXPECTED TO USE THE VARIOUS DOCUMENTS CONTAINED IN THE IMPOUNDED FILE WITHOUT FURNISHING THE COPY OF THEM TO THE ASSESSEE. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE IMPUGNED ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE SET ASIDE, AND THE ASSESSING OFFICE R BE DIRECTED TO ISSUE QUESTIONNAIRE / SHOW- CAUSE NOTICE ENCLOSING THEREWITH THE VARIOUS DETAIL S, DOCUMENTS/ STATEMENTS, WHICH HE WANTED TO 3 ITA NO. 2497/AHD/2008 RELY FOR THE PURPOSE OF MAKING ASSESSMENT AND AFTER HEARING THE ASSESSEE IN THAT REGARD, THE ASSESSING OFFICER BE DIRECTED TO PASS THE FRESH ASS ESSMENT ORDER. 4. ON THE OTHER HAND, SMT. JYOTI LAXMI, LD SR. D.R. APPEARING ON BEHALF OF THE REVENUE CONTENDED THAT SINCE THE ASSESSEE NEVER ASKED FOR F URNISHING VARIOUS DETAILS, THE ASSESSING OFFICER WAS NOT REQUIRED TO FURNISH THE SAME. SHE A CCORDINGLY SUBMITTED THAT THE VIEW TAKEN BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE UPHELD. 5. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE ADDITIONAL GROUND RAISED GOES TO THE ROOT OF THE MATTER AND IT INVOLVED A PURE QUESTION OF LAW. RELEVANT FACTS ARE ON RECORD IN RESPECT OF ADDITIONAL GROUND. WE, THEREFORE, FOLLOWING THE JUDGMENT OF THE HON'BL E SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. VS.- CIT [229 ITR 383 (SC)] ADMI T THE ADDITIONAL GROUND. 5.1. NOW COMING TO THE MERIT, WE FOUND THAT IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS MENTIONED ABOUT SURVEY UNDER SECTION 133A OF TH E ACT, STATEMENT OF SHRI PANKAJ DANAWALA, THE UTILIZATION OF SO-CALLED CAPITAL BUILT UP FILES FOR THE BENEFIT OF CERTAIN GROUPS, REFERENCES TO ANNEXURE A-699 AND THE SO-CALLED FILE OF THE ASSESS EE NO. 3938. IN OUR CONSIDERED OPINION, THE ASSESSING OFFICER OUGHT TO HAVE MADE AVAILABLE THE COPY OF ALL THESE DOCUMENTS, WHICH HE WANTED TO RELY FOR THE PURPOSE OF MAKING ASSESSMENT . SINCE THIS WAS NOT DONE, WE SET ASIDE THE ORDERS OF BOTH THE AUTHORITIES BELOW AND RESTORE TH E MATTER BACK TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT ASSESSING OFFICER WILL FURN ISH THE REASONS RECORDED BEFORE ISSUING NOTICE UNDER SECTION 148 AND VARIOUS OTHER DETAILS AND DOC UMENTS WHICH HE WANTED TO RELY FOR THE PURPOSE OF MAKING ASSESSMENT. THE ASSESSING OFFICER WILL PASS APPROPRIATE ORDER AFTER CONSIDERING THE OBJECTION OF THE ASSESSEE IN ACCORD ANCE WITH LAW. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 11.06.201 0 SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 11 / 06 / 2010 4 ITA NO. 2497/AHD/2008 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, AHMEDABAD LAHA/SR.P.S.