Shri Ajaykumar J.Patel, Surat V. The Dy.CIT, Circle-9, Surat

ITA 2558/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0125 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-11-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 30-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIV SEWAK
• Keywords: Opportunity of being heard; Reassessment proceedings
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 2558/AHD/2013 / ASSESSMENT YEAR : 2006-07 SHRI AJAYKUMAR J. PATEL, D/18, NEETA SOCIETY, TADWADI, RANDER ROAD, SURAT-395009 PAN : ADPPP 9146 C VS DCIT, CIRCLE-9, SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI RAMESH MALPANI, AR REVENUE BY : SHRI SHIV SEWAK, SR DR / DATE OF HEARING : 03/11/2016 / DATE OF PRONOUNCEMENT: 03/11/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-V, SUR AT DATED 26.09.2013 FOR ASSESSMENT YEAR 2006-07. 2. IN THIS CASE, THE ASSESSEES APPEAL WAS DISMISSE D BY THE ITAT ON 07.03.2014. THEREAFTER, THE ASSESSEE FILED MISCELL ANEOUS APPLICATION NO.73/AHD/2014, WHICH WAS ALSO DISMISSED BY THE ITA T VIDE ORDER DATED 16.01.2015. AGGRIEVED, THE ASSESSEE PREFERRED APP EAL BEFORE THE HONBLE HIGH COURT OF GUJARAT WHICH VIDE ORDER DATED 22.04. 2015 IN TAX APPEAL NO.234 OF 2015 SET ASIDE THE MATTER BACK TO THE FIL E OF TRIBUNAL, BY FOLLOWING OBSERVATIONS:- [4.0]HAVING HEARD LEARNED ADVOCATES APPEARING ON B EHALF OF THE RESPECTIVE PARTIES AND WITHOUT FURTHER ENTERING INTO LARGER QU ESTION ON MERITS AND/OR WITHOUT EXPRESSING ANYTHING ON MERITS MORE PAR TICULARLY IN FAVOUR OF EITHER PARTIES WHETHER REASSESSMENT PROCEEDINGS WER E VITIATED OR NOT, WHEN IT IS FOUND THAT THE GROUND WHICH WAS RAISED BEFOR E THE LEARNED TRIBUNAL AND THE DECISION WHICH WAS RELIED UPON BY THE ASSE SSEE HAS NOT BEEN DEALT WITH BY THE LEARNED TRIBUNAL, WE ARE OF THE OPINION THAT THIS IS A FIT CASE TO REMAND THE MATTER TO THE LEARNED TRIBUNAL TO DECIDE THE APPEAL AFRESH IN ACCORDANCE WITH LAW AND ON MERITS AND TO DEAL WITH AND DECIDE ALL THE SMC-ITA NO. 2558/AHD/2013 SHRI AJAYKUMAR J. PATEL VS, DCIT AY : 2006-07 2 GROUNDS RAISED BEFORE THE LEARNED TRIBUNAL INCLUDIN G TO DEAL WITH THE DECISION WHICH HAS BEEN RELIED UPON BEFORE THE LEA RNED TRIBUNAL. [5.0] IN VIEW OF THE ABOVE AND FOR TH E REASONS STATED ABOVE, WITHOUT FURTHER ENTERING INTO THE LARGER QUESTION O N MERITS AND/OR WITHOUT EXPRESSING ANYTHING ON MERITS MORE PARTICULARLY DEC IDING ANYTHING ON MERITS WHETHER THE REASSESSMENT PROCEEDINGS WERE VA LID OR NOT, ON THE AFORESAID GROUND ALONE, THE PRESENT TAX APPEAL IS ALLOWED. IMPUGNED JUDGMENT AND ORDER DATED 07.03.2014 PASSED BY THE LEARNED INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD BENCH D, AHMEDBAA D IN ITA NO. 2558/AHD/2013 IS HEREBY QUASHED AND SET ASIDE AND T HE MATTER IS REMITTED TO THE FILE OF THE LEARNED TRIBUNAL DIRECTING TH E LEARNED TRIBUNAL TO DECIDE AND DISPOSE OF THE APPEAL ON REMAND AFRESH I N ACCORDANCE WITH LAW AND ON MERITS AND TO DEAL WITH THE CONTENTION ON BEHALF OF THE APPELLANT THAT THE REASONS WERE RECORDED BY ON E OFFICER AND THE NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 WAS I SSUED BY ANOTHER OFFICER AND THEREFORE, REASSESSMENT HAS BEEN VITIATED. WE ARE MAKING IT VERY MUCH CLEAR THAT THAT WE HAVE NOT EXPRESSED ANYTHING ON M ERITS WHETHER THE RE- ASSESSMENT PROCEEDINGS ARE VALID OR NOT MORE PARTIC ULARLY THE REASSESSMENT PROCEEDINGS SHALL BE IN VALID ON THE AFORESAID GROU ND. THE LEARNED TRIBUNAL TO CONSIDER AND DEAL WITH THE SAME IN ACCORDANCE WITH LAW AND ON ON MERITS. THE AFORESAID EXERCISE SHALL BE COMPLETED WITHIN A PERIOD OF THREE MONTHS FROM THE DATE OF RECEIPT OF THE PRESENT ORDER. PRESENT TAX APPEAL IS ALLOWED TO THE AFORESAID EXTE NT. NO COSTS. 3. THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT I N VIEW OF THE HONBLE HIGH COURTS ORDER, THE ITAT HAS TO DEAL WITH THE F OLLOWING ISSUES:- (I) TO DECIDE AND DISPOSE OF THE APPEAL AFRESH IN A CCORDANCE WITH LAW AND ON MERITS; (II) TO DEAL WITH THE ASSESSEES CONTENTIONS THAT R EASONS FOR RE- OPENING WERE RECORDED BY ONE OFFICER AND THE NOTICE U/S 148 OF THE IT ACT WAS ISSUED BY ANOTHER OFFICER, WHICH VIT IATES THE PROCEEDINGS; (III) THE HONBLE GUJARAT HIGH COURT JUDGMENT IN TH E CASE OF HYNOUP FOOD & OIL INDUSTRIES LTD VS. ACIT, REPORTED IN (20 08) 307 ITR 115, TO BE CONSIDERED; SMC-ITA NO. 2558/AHD/2013 SHRI AJAYKUMAR J. PATEL VS, DCIT AY : 2006-07 3 (IV) THE HONBLE GUJARAT HIGH COURT HAS NOT EXPRESS ED ANY VIEW ON THE MATTER AND DIRECTED TO DECIDE THE MATTER AFRESH . 4. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, CONTENDS THAT AFTER RECORDING OF THE REASONS, THE INCUMBENT OFFICER WAS SUCCEEDED BY A NEW OFFICER AND THEREAFTER THE ASSESSEES CASE RE CORDS WERE TRANSFERRED TO ANOTHER WARD IN THE SAME CITY. HOWEVER, LD. DR CON TENDS THAT THE RECORDS TO VERIFY ALL THESE FACTS ARE NOT WITH HIM. 5. IN REJOINDER, THE LD. COUNSEL FOR THE ASSESSEE C ONTENDS THAT IN EARLIER HEARING THE BENCH DIRECTED THE DEPARTMENT TO PRODUC E ALL THE RELEVANT RECORDS TO VERIFY THESE RELEVANT ASPECTS; HOWEVER S AME HAVE NOT BEEN PRODUCED. LOOKING AT THE DIFFICULTIES POSED BY ASS ESSEE AND OLD RECORDS BEING AT SURAT COUPLED WITH THE FACTS THAT SOME OF THE RECORDS ARE NOT READILY TRACEABLE, A PRAYER IS MADE THAT THE CASE MAY BE SE T ASIDE AND RESTORED BACK TO THE FILE OF THE CONCERNED LD. CIT(A) SURAT TO VE RIFY RELEVANT RECORD AND PASS THE ORDER AFRESH BY DEFINITE FINDINGS ABOUT TH ESE CRUCIAL ASPECTS. THE ASSESSEE IS RESIDENT OF SURAT AND TIRED OF RUNNING TO AHMEDABAD AGAIN AND AGAIN; THEREFORE, THE APPEAL MAY BE SET ASIDE AND R ESTORED BACK TO THE FILE OF LD. CIT(A) TO DECIDE THE ISSUES IN VIEW OF THE HON BLE GUJARAT HIGH COURT DIRECTIONS. THE LD. DR HAS NO OBJECTION FOR THIS P ROPOSITION. 6. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE ASSESSEE AND RECORDS ARE AT SURAT; THE LOCATIONAL DIFFICULTI ES ARE UNDERSTANDABLE. THE ASSESSEES REQUEST ABOUT HARDSHIPS IS APPRECIABLE. IT IS NECESSARY TO ASCERTAIN THE FACTS AFTER VERIFYING THE RECORD INCL UDING WHETHER THERE WAS VALID CHANGE OF INCUMBENCY IN THE OFFICE OF AO AND TRANSFER OF CASE RECORDS AND OTHER RELATED ISSUES AS OBSERVED BY THE HONBLE HIGH COURT. IN VIEW OF ENTIRETY OF FACTS AND CIRCUMSTANCES, THERE IS MERIT IN THE CONTENTION OF THE LD. SMC-ITA NO. 2558/AHD/2013 SHRI AJAYKUMAR J. PATEL VS, DCIT AY : 2006-07 4 COUNSEL FOR THE ASSESSEE. THEREFORE, IN CONSIDERAT ION OF AFORESAID FACTS AND CIRCUMSTANCES, THE SETTING ASIDE OF THE CASE WITH T HE CONSENT OF BOTH THE PARTIES TO LD. CIT(A) SEEMS TO BE JUDICIOUS PROPOSI TION. IN VIEW THEREOF, THE MATTER IS SET ASIDE AND RESTORED BACK TO THE FILE O F LD. CIT(A) TO CONSIDER THE HONBLE GUJARAT HIGH COURT JUDGMENT AND ITAT OBSERV ATIONS AND THEREAFTER DECIDE THE APPEAL AFRESH IN ACCORDANCE W ITH LAW AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 3 RD NOVEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 03/11/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD