Shri Kamlesh Laxmanbhai Patel (HUF), Surat V. The Income Tax Officer, Ward-3(2), Surat

ITA 2651/AHD/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2359 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 30-03-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 16-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SUTARIA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 2651/AHD/2015 (ASSESSMENT YEAR: 2007-08) SHRI KAMLESH LAXMANBHAI PATEL (HUF) 2, DHARAMRAJ SOCIETY, B/H. SATYAM TOWER, TADWADI, RANDER ROAD, SURAT-3950009 V/S INCOME TAX OFFICER, WARD- 3 (2), SURAT (APPELLANT) (RESPONDENT) PAN: AACHK 0306B APPELLANT BY : SHRI ASEEM THAKKAR, AR RESPONDENT BY : SHRI DEEPAK SUTARIA, SR. D.R . ( )/ ORDER DATE OF HEARING : 30 -03-201 6 DATE OF PRONOUNCEMENT : 31-03-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF LD. CIT(A)-II, SURAT DATED 06.07.2015 PERTAINING TO A.Y . 2007-08. ITA NO. 2651 /AHD/2015 . A.Y. 2007-08 2 2. THE GRIEVANCE OF THE ASSESSEE READ AS UNDER:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN CONFIRMING THE ADDITION OF RS. 5,96,980/- MADE BY T HE ASSESSING OFFICER UNDER THE HEAD LONG TERM CAPITAL GAIN AND D ETERMINING THE TOTAL INCOME AT RS. 6,38,087/- RAISING DEMAND OF RS . 2,28,984/-. 3. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUNDS OF APPEAL WHICH READ AS UNDER:- 1. THE LD. ASSESSING OFFICER HAS ERRED IN ISSUING T HE NOTICE U/S. 148 OF THE I.T. ACT, 1961 WHICH IS ILLEGAL AND BAD IN LAW AND HENCE THE SAME SHOULD BE QUASHED. 2. THE LD. ASSESSING OFFICER HAS ERRED IN COMPETING ASSESSMENT 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 T HE 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 Q UASHED. 4. THE LEARNED COUNSEL PROCEEDED BY TAKING THE ADDITIO NAL GROUNDS OF APPEAL FIRST. 5. 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. ITA NO. 2651 /AHD/2015 . A.Y. 2007-08 3 6. 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. 7. 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. 8. ON IDENTICAL SET OF FACTS, THE CO-ORDINATE BENCH IN THE CASE OF SHRI LAXMANBHAI PATEL (HUF) AND SMT. LILAVATIBEN LAXMANB HAI PATEL IN ITA NOS. 2649 & 2650/AHD/2015 HAS TAKEN A SIMILAR VIEW. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO-ORDINATE BENCH, WE SET ASIDE THE IMPUGNED ORDERS AND RESTORE TO THE FILES OF THE LD. CIT(A) WITH A DIRECTION TO DECIDE ON THE ISSUE OF REOPENING OF TH E ASSESSMENT AFTER GIVING A REASONABLE AND FAIR OPPORTUNITY OF BEING H EARD. 9. APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 31 - 03 - 2016. SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT.