Shri Chamansing Ramsingh Rajput, Ahmedabad V. The Income tax Officer,Ward-2(4), Ahmedabad

ITA 2651/AHD/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0919 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-06-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 21-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: P B PARMAR
• Keywords: Reason to believe
• Section: 143(3); 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2651/AHD/2011 / ASSTT. YEAR: 2005-2006 SHRI CHAMANSINH RAMSINGH RAJPUT RAJWADI BHAVAN 1575 BAROLPURA OPP: DARIAPUR GATE AHMEDABAD 380 015. PAN : AATPR 7176 H VS ITO, WARD - 2(4) AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI P.B. PARMAR REVENUE BY : SHRI DINESH SINGH, SR.DR / DATE OF HEARING : 21/06/2016 / DATE OF PRONOUNCEMENT: 05/08/2016 $%/ O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST T HE ORDER OF LD.CIT(A)-6 DATED 10.8.2011 FOR THE ASSTT.YEAR 2005 -06. 2. IN THE FIRST GROUND OF APPEAL, GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN UPHOLDING THE REOPENING OF T HE ASSESSMENT MADE UNDER SECTION 147 OF THE INCOME TAX ACT, 1961. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED HIS RETURN OF INCOME ON 30.10.2005 DECLARING TOTAL INCOME AT RS.1 ,61,252/-. AN ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) OF THE ACT AND TOTAL INCOME OF THE ASSESSEE WAS DETERMINED AT RS.1,77,291/-. T HE LD.AO THEREAFTER RECORDED REASONS AND ISSUED NOTICE UNDER SECTION 14 8 ON 6.5.2010. HE PASSED RE-ASSESSMENT ORDER ON 30.12.2010. THIS REOPENING WAS CHALLENGED BY THE ASSESSEE BEFORE THE LD.CIT(A), BUT FAILED TO GET AN Y RELIEF. ITA NO.2651/AHD/2011 2 4. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD CAREFULLY. THE REASONS RECORDED BY THE AO A RE AVAILABLE AT PAGE NO.18 OF THE PAPER BOOK. THE SAME READS AS UNDER: SUB : SCRUTINY PROCEEDINGS FOR A.Y. 2005-06 PLEASE REFER TO YOUR LETTER DTD. NIL FILED IN THIS OFFICE ON 23.11.2010, IN RESPONSE TO THIS OFFICE NOTICE U/S. 148 DTD.06.05.2 010. AS DESIRED REASONS FOR ISSUANCE OF NOTICE U/S. 148 ARE SUPPLIED HERE WITH. 'REASONS FOR RE-OPENING ASSESSMENT U/S.147 CHAMANSINGH R RAJPUT A. Y 2005-06 IN THIS CASE, ASSESSMENT ORDER WAS PASSED U/S. 143( 3) ON 02/11/2007 ASSESSING TOTAL INCOME OF RS. 1,77,291/- AS AGAINST RETURNED INCOME OF RS. 1,61,252/-. THE ACCOUNTS WERE AUDITED AND REPORTS IN FORM 3CB AND 3 CD WERE FILED. ON VERIFICATION OF COPIES OF BANK STATEMENTS, IT IS NOTICED THAT THE ASSESSEE HAS WITHDRAWN CASH FROM BANK ON VARIOUS DA TES WHICH DOES NOT REFLECT IN HIS CASH BOOK AND HE HAS ALSO ISSUED BEARER CHEQUES TO VARIOUS PARTIES. THUS THE ASSESSEE HAD MADE PAYMENT IN CONTRAVENTION TO SECTION 40A (3) OF THE I. T ACT, 1961, TO THE EX TENT OF RS. 1,13,67,855/-. FOR THIS REASON, 20% OF THE PURCHASE EXPENDITURE WA S REQUIRED TO BE DISALLOWED WHICH COMES TO RS. 22,73,571/-. NO DISAL LOWANCE HAS BEEN MADE IN THE ASSESSMENT ORDER I HAVE, THEREFORE, REASON TO BELIEVE THAT INCOME OF RS. 22,73,571/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 14 7 OF THE I.T ACT, 1961, READ WITH EXPLANATION 2(C)(I) THERE TO.' SD/- (J. L.BHATIA) INCOME TAX OFFICER, WARD - 2(4), AHMEDABAD 5. NOTICE UNDER SECTION 148 WAS ISSUED ON 6.5.2010. THE ASSESSMENT YEAR INVOLVED IS ASSTT.YEAR 2005-06. FOUR YEARS HAVE EX PIRED ON 31.3.2010. THUS, THE NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. INTE RDICTION PROVIDED IN THE PROVISO APPENDED TO SECTION 147 PUTS AN EMBARGO UPO N THE POWERS OF THE AO ITA NO.2651/AHD/2011 3 TO ISSUE NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, IN THE CASES WHERE FOUR YEARS HAVE EXPIRED AND ORIGINAL ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF THE ACT. IN THIS CASE, NO NOTICE SHALL B E ISSUED UNDER SECTION 148 OF THE ACT, UNLESS INCOME CHARGEABLE TO TAX HAS ESCAPE D ON ACCOUNT OF FAILURE OF THE ASSESSEE TO DISCLOSE ALL MATERIAL FACTS FULLY A ND TRULY IN RESPECT OF HIS INCOME. A PERUSAL OF THE REASONS WOULD INDICATE TH AT THE AO HAS NO WHERE LEVELED ANY ALLEGATIONS AGAINST THE ASSESSEE ABOUT HIS FAILURE TO DISCLOSE ALL THE MATERIAL FACTS FULLY AND TRULY. THE AO HAS VERIFIE D COPIES OF BANK STATEMENTS AND MATERIAL WHICH WERE DULY AVAILABLE AT THE TIME OF ORIGINAL ASSESSMENT. THEREFORE, IN MY OPINION, AO WAS NOT JUSTIFIED IN R EOPENING THE ASSESSMENT. I ALLOW THIS GROUND OF APPEAL AND QUASH RE-ASSESSMENT ORDER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 5 TH AUGUST, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER