M/s. Vaibhav Laxmi Corporation, Ahmedabad V. The ACIT.,(OSD) Circle-9, Ahmedabad

ITA 2722/AHD/2010

• Counselvise Citation: 272220514 RSA 2010
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 20-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD TANMANI SRDR
• Assessee Lawyers: VIJAY RANJAN
• Keywords: Opportunity of being heard; Initiation of penalty proceedings
• Section: 143(3); 234B; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI D.K.TYAGI, JUDICIAL MEMBER AND SHRI, A.K.GARODIA, ACCOUNTANT MEMBER ITA NO.2722/AHD/2010 ASSESSMENT YEAR :2006-07 M/S VAIBHAV LAXMI CORPORATION, 50, HARSIDDH CHAMBERS, ASHRAM ROAD, AHMEDABAD PAN NO.AACFV0498B V/S . ACIT[OSD], CIRCLE-9, AHMEDABAD (APPELLANT) .. (RESPONDENT) /BY APPELLANT SHRI VIJAY RANJAN, AR /BY RESPONDENT SHRI VINOD TANMANI, SR-DR /DATE OF HEARING 07-06-2012 /DATE OF PRONOUNCEMENT 13-07-2012 O R D E R PER A.K.GARODIA, ACCOUNTANT MEMBER:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD DATED 18-08-2010 FOR ASSESSMENT YEAR 2006-07. THE GROUNDS RAISED BY THE ASSESSEE AS PER CONCISE GROUNDS OF APPEAL ARE AS UNDER:- 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E CASE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN UPHOL DING THE VALIDITY OF RE-ASSESSMENT ORDER FRAMED UNDER SECTION 143(3) REA D WITH SEC. 147. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN UPHOL DING THE ADDITION ITA NO.2722/AHD/2010 A.Y. 2006-07 M/S VAIBHAV LAXMI CORPN. V. ACIT [OSD] CIR-9 ABD PAGE 2 OF RS.60,23,792/- MADE BY THE ASSESSING OFFICER IN THE ORDER OF THE ASSESSMENT. 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT D EALING WITH THE APPEALS GROUNDS CHALLENGING THE LEVY OF INTEREST UNDER SECTION 234A, 234B AND 234C. 4. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT I NTERFERING WITH THE INITIATION OF PENALTY PROCEEDINGS UNDER SEC. 271(1) (C) . 2. REGARDING GROUND NO.1, IT WAS SUBMITTED BY LD. A UTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT IT IS NOTED BY LD. CIT(A) IN PARA-4 OF HIS ORDER THAT IT WAS INFORMED BY THE PRESENT ASSESSING OFFICER THAT COPY OF REASONS RECORDED WERE PROVIDED TO THE ASSESSEE VIDE LETTER DATED 23-07-2010 OF THE PRESENT AO. THE ASSESSMENT ORDER WAS FRAMED BY AO ON 29-12-2009. HE SUBMITTED THAT THEREFORE, THE MATTER SHOULD BE G O BACK TO THE FILE OF AO FOR FRESH DECISION AFTER DECIDING THE OBJECTIONS TO BE RAISED BY THE ASSESSEE BEFORE HIM IN THE LIGHT OF REASONS RECORDED BY HIM, COPY OF WHICH WAS PROVIDED TO THE ASSESSEE AFTER COMPLETION OF ASSESS MENT. 3. LD. DEPARTMENTAL REPRESENTATIVE OF THE REVENUE S UPPORTED THE ORDER OF LD. CIT(A). HE PLACED RELIANCE ON THE TRIBUNALS DE CISION RENDERED IN THE CASE OF ITO V. SMT. GURINDER KAUR (2006) AS REPORTED IN 102 ITD 189 (DEL). HE ALSO PLACED RELIANCE ON THE JUDGMENT OF HONBLE SUPREME COURT RENDERED IN THE CASE OF GKN DRIVERSHAFTS (INDIA) LTD. V. ITO AND OTHERS ((2003) AS REPORTED IN 259 ITR 19 (SC). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIALS ON RECORD, GONE THROUGH THE ORDERS OF AUTHORITIES BELO W AND JUDGMENTS CITED BY LD. DR OF THE REVENUE. AS PER THE TRIBUNALS DECISI ON RENDERED IN THE CASE OF SMT. GURINDER KAUR (SUPRA), IT WAS HELD BY THE TRIBUNAL THAT WHERE THE ASSESSEE WAS AWARE OF THE REASONS FOR REOPENING THE ASSESSMENT, NON- COMMUNICATION OF REASONS WOULD NOT BE FATAL TO VALI DITY OF REASSESSMENT ITA NO.2722/AHD/2010 A.Y. 2006-07 M/S VAIBHAV LAXMI CORPN. V. ACIT [OSD] CIR-9 ABD PAGE 3 PROCEEDINGS. IN THE CASE OF GKN DRIVERSHAFTS (INDIA) LTD. (SUPRA), IT IS HELD BY HONBLE APEX COURT THAT WHEN A NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT, 1961, WAS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICEE IS TO FILE THE RETURN AND, IF HE SO DESIRES, TO SEEK REASONS FOR I SSUING THE NOTICES. IT IS ALSO HELD THAT ASSESSING OFFICER IS BOUND TO FURNISH REA SONS WITHIN A REASONABLE TIME AND ON RECEIPT OF REASONS, THE NOTICEE IS ENTI TLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOU ND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IN THE PRESENT CASE, I N RESPONSE TO THE NOTICE ISSUED BY THE AO U/S 148 OF THE ACT ON 23-04-2008, THE ASSESSEE FILED RETURN OF INCOME ON 02-05-2008 SHOWING INCOME OF RS.1,53,3 2,810/- WHEREAS IN ORIGINAL RETURN FILED BY THE ASSESSEE, THE INCOME D ECLARED WAS ONLY RS.1,32,70,130/-. IT IS NOTED BY LD. CIT(A) IN PARA -4 OF HIS ORDER THAT REASONS RECORDED BY THE AO FOR ISSUING NOTICE U/S. 148 OF T HE ACT WERE PROVIDED TO THE ASSESSEE ON 23-07-2010, WHEREAS THE ASSESSMENT WAS COMPLETED ON 29-12- 2009. UNDER THESE FACTS, WE FEEL THAT AS PER THE JU DGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF GKN DRIVERSHAFTS (INDIA) LTD. (SUPRA), THE ASSESSEE SHOULD BE PROVIDED OPPORTUNITY TO FILE AN OBJECTION BEFORE ASSESSING OFFICER AGAINST THE ISSUE OF NOTICE U/S. 148 OF THE ACT AND IF THE ASSESSEE DOES SO THEN THE AO IS DUTY BOUND TO DISPOSE OF THOSE OB JECTIONS AND IF IT IS FOUND BY HIM THAT THOSE OBJECTIONS ARE NOT VALID THEN ONL Y HE HAS TO FRAME THE RE- ASSESSMENT ORDER. HENCE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FO R FRESH DECISION. THE ASSESSEE MAY FILE OBJECTION BEFORE THE AO AGAINST T HE ISSUE OF NOTICE U/S. 148 OF THE ACT IF HE SO DESIRES AND IF THE ASSESSEE FIL ES ANY OBJECTION THEN AO SHOULD DISPOSE OF THOSE OBJECTION FIRST AND THEREAF TER, IF IT IS FOUND THAT OBJECTIONS ARE NOT VALID THEN ONLY HE SHOULD FRAME RE-ASSESSMENT ORDER AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN CASE, NO SUCH OBJECTION IS FILED BY THE ASSESSEE BEFORE THE AO WITHIN A REASONABLE TIME FROM THE DATE OF THIS ORDER, THEN THE AO MAY COMPLE TE THE ASSESSMENT AGAIN AS PER LAW AFTER PROVIDING REASONABLE OPPORTUNITY O F BEING HEARD TO ASSESSEE. THIS GROUND OF ASSESSEE STANDS ALLOWED FOR STATISTI CAL PURPOSES. ITA NO.2722/AHD/2010 A.Y. 2006-07 M/S VAIBHAV LAXMI CORPN. V. ACIT [OSD] CIR-9 ABD PAGE 4 5. IN VIEW OF OUR FINDING REGARDING GROUND NO.1 OF THE ASSESSEES APPEAL AS PER WHICH WE HAVE RESTORED BACK THE MATTER TO TH E FILE OF ASSESSING OFFICER FOR FRESH DECISION, FOR OTHER GROUNDS RAISED BY THE ASSESSEE ON MERIT OF THE ADDITIONS, NO ADJUDICATION IS CALLED FOR AT THIS ST AGE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE ALLOWED IN TH E TERMS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (D.K.TYAGI) (A.K.GARODIA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, *DKP - 13/07/2012 ()* + ,- ,- ,- ,- ../ ../ ../ ../ 0/ 0/ 0/ 0/ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. *.2 , ,3 / CONCERNED CIT 4. , ,3- / CIT (A) 5. /67 ...2, , .2 , ()* / DR, ITAT, AHMEDABAD 6. 7:; <= / GUARD FILE. BY ORDER/ ,- , /TRUE COPY/ >/ ( ? , .2 , ()* + STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 11/97 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 12/07, 12/07 4) DATE OF CORRECTION 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 12/07 7) ORDER UPLOADED ON 13/07 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 13/07