Appeal details
Counselvise Citation
[2016] 133 COUNSELVISE.COM (IT) 9242 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
09-03-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Next Hearing Date
08-03-2016
Assessment Year
2007-2008
Appeal Filed On
16-09-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI KUL BHARAT, JUDICIAL MEMBER) ITA. NO: 2649 & 2650/AHD/2015 (ASSESSMENT YEAR: 2007-08) SHRI LAXMANBHAI GANPATBHAI PATEL (HUF) 4, NEELKAMAL, OPP: SUJATA SOCIETY, TADWADI, RANDER ROAD, SURAT-395009 PAN- AAAHL4263L SMT. LILAVATIBEN LAXMANBHAI PATEL 4, NEELKAMAL, OPP: SUJATA SOCIETY, TADWADI, RANDER ROAD, SURAT-395009 PAN ACVPP3438L V/S V/S INCOME TAX OFFICER, WARD- 3 (2), SURAT INCOME TAX OFICER, WARD-3 (2), SURAT (APPELLANT) (RESPONDENT) PAN: AAPPT0319Q APPELLANT BY : SHRI A.L. THAKKAR, AR RESPONDENT BY : SHRI B. L. SHARMA, SR. D.R. ( )/ ORDER DATE OF HEARING : 08 -03-201 6 DATE OF PRONOUNCEMENT : 09 -03-2016 ITA NOS. 264 9 & 2650/AHD/2015 . A.Y. 2007-0 8. 2 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. ITA NOS. 2649 & 2650/AHD/2015 ARE APPEALS BY TWO DI FFERENT ASSESSEES PREFERRED AGAINST TWO SEPARATE ORDERS OF THE LD. CIT(A)-II, SURAT DATED 06.07.2015 PERTAINING TO A.Y. 2007-08. 2. REPRESENTATIVES OF BOTH SIDES AGREED THAT THE FACTS IN ISSUES INVOLVED IN BOTH THESE APPEALS ARE IDENTICAL THOUGH QUANTUM MAY DIFFER. IT WAS ALSO AGREED THAT THE FACTS IN THE CASE OF SHRI LAX MANBHAI GANPATBHAI PATEL IN ITA NO. 2649/AHD/2015 MAY BE CONSIDERED FO R DISPOSING BOTH THESE APPEALS. IN ITA NO. 2649/AHD/2015 FOR A.Y.200 7-08 3. THE GRIEVANCE OF THE ASSESSEE READS AS UNDER:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN CONFIRMING THE ADDITION OF RS. 6,09,881/- MADE BY T HE ASSESSING OFFICER UNDER THE HEAD LONG TERM CAPITAL GAIN AND D ETERMINING THE TOTAL INCOME AT RS. 7,31,971/- RAISING DEMAND OF RS . 2,51,040/-. 4. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUNDS OF APPEAL WHICH ARE AS UNDER:- 1. THE LD. ASSESSING OFFICER HAS ERRED IN ISSUING THE NOTICE U/S. 148 OF THE I.T. ACT, 1961 WHICH IS ILLEGAL AND BAD IN LAW AND HENCE THE SAME SHOULD BE QUASHED. ITA NOS. 264 9 & 2650/AHD/2015 . A.Y. 2007-0 8. 3 2. THE LD. ASSESSING OFFICER HAS ERRED IN COMPLETING A SSESSMENT U/S. 143(3) R.W.S. 147 OF THE I.T. ACT, 1961 ON THE BASI S OF ILLEGAL NOTICE ISSUED U/S. 148 OF THE I.T. ACT, 1961 IS LIABLE TO BE CANCELLED. 3. THE LD. ASSESSING OFFICER HAS ERRED IN FRAMING THE ASSESSMENT IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AN D EQUITY BY NOT PROVIDING THE STATEMENT OF SHRI MUKESH CHOKSI ON WH ICH RELIANCE HAS BEEN PLACED AND THEREFORE THE SAME DESERVES TO BE QUASHED. 5. THE LD. COUNSEL PROCEEDED BY TAKING THE ADDITIONAL GROUNDS OF APPEAL FIRST. 6. AS MENTIONED ELSEWHERE, THE ASSESSEE HAS CHALLENGED THE JURISDICTION OF THE OFFICER FOR REOPENING THE ASSESSMENT ON THE BASIS OF NOTICE ISSUES U/S. 148 OF THE ACT. WE FIND THAT THE ASSESS EE HAS CHALLENGED THE REOPENING BEFORE THE ASSESSING OFFICER THOUGH W ITHOUT ANY SUCCESS. HOWEVER, WE FIND THAT THE ASSESSEE HAS NOT CHALLENGED THE REOPENING BEFORE THE FIRST APPELLATE AUTHORITY THOU GH AGAIN CHALLENGED BEFORE US. 7. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THIS AS PECT OF THE CASE, IN OUR CONSIDERED OPINION; THE ASSESSEE OUGHT TO HAVE CHALLENGED THE REOPENING BEFORE THE FIRST APPELLATE AUTHORITY. 8. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY , WE RESTORE THIS ISSUE TO THE FILES OF THE LD. CIT(A). THE LD. CIT(A) IS D IRECTED TO DECIDE ON THE ISSUE OF REOPENING OF THE ASSESSMENT AFTER GIVING A REASONABLE AND FAIR OPPORTUNITY OF BEING HEARD. ITA NOS. 264 9 & 2650/AHD/2015 . A.Y. 2007-0 8. 4 9. WITH THE ABOVE DIRECTION, BOTH THESE APPEALS ARE TR EATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 09 - 03 - 2016 SD/- SD/- (KUL BHARAT) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY 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
