Patel Ibrahim Isa Alias Ghulam Ibrahim Patel, Bharuch V. The Income tax Officer,Ward-2, Bharuch

ITA 2724/AHD/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67831 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-10-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 05-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: S N DIVETIA
• Keywords: Reopening of assessment
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SRI D.K TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTAN T MEMBER PATEL IBRAHIM ISA ALIAS GHULAM IBRAHIM PATEL, AT & POST KESHWAN, TAL. VAGRA, DIST. BHARUCH-392140 PAN: AAEFT 7658 M (APPELLANT) VS ITO, WARD-2 BHARUCH (RESPONDENT) REVENUE BY: SRI P.L. KUREEL, SR.D.R. ASSESSEE BY: SRI S.N. DIVETIA, A.R. DATE OF HEARING : 22-10-2013 DATE OF PRONOUNCEMENT : 25-10-20 13 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A)-IV, BARODA DATED 10-09-2012. 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPE AL:- ITA NO. 2724/AHD/2012 ASSESSMENT YEAR 2004-05 I.T.A NO.2722/AHD/2012 A.Y. 2004-05 PAGE NO PATEL IBRAHIM ISA ALIAS GHULAM IBRAHIM PATEL VS. IT O 2 1.1 THE ORDER PASSED U/S.250 ON 10-9-2012 FOR A.Y. 2004-05 BY CIT(A)-IV , BARODA UPHOLDING THE VALIDITY OF RE-ASSTT AS WELL AS THE ADDITION OF RS. 25,04,300 AS UNEXPLAINED CASH AND A GRI. SALE PROCEEDS OF RS . 5,60,220 AS INCOME FROM OTHER SOURCES MADE BY AO I S WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE SUBMISSIONS MADE AND EVIDENCE PRODUCED BY THE APPELLANT WITH REGARD TO THE IMPUGN ED ADDITIONS. 2.1 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS M CONFIRMING THAT CASH OF RS. 25,04,300 SEIZED BY POL ICE DEPT. BELONGED TO THE APPELLANT AND IT WAS UNEXPLAINED CASH. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) OUGHT NOT TO HAVE UPHELD THAT T HE SEIZED CASH OF RS.25,04,300 DID NOT BELONGED TO THE APPELLANT AND THE SAME WAS UNEXPLAINED CASH OF THE APPELLANT. 2.3 THE OBSERVATIONS MADE AND CONCLUSIONS REACHED B Y BOTH THE LOWER AUTHORITIES SO AS TO HOLD THE SEIZED CASH AS BELONGING TO THE APPELLANT ARE NOT ADMITTED BY THE APPELLANT IN SO F AR AS THE SAME ARE CONTRARY TO THE EVIDENCE ON RECORD. MOREOVER THE SA ME ARE BASED ON PRESUMPTION AND SURMISE WITHOUT ANY MATERIAL /EVIDE NCE TO SUPPORT THEM. 3.1 THE LD. CIT(A) HAS ERRED IN UPHOLDING THAT THE SALE PROCEEDS OF AGRICULTURAL PRODUCE OTHER THAN COTTON OF RS. 5,60, 220 WERE INCOME FROM OTHER SOURCES FOR WANT OF EVIDENCE TO SUBSTANT IATE IT. 3.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT[A) OUGHT NOT TO HAVE UPHELD THE ADDITION OF RS. 5,60,2 20. 4.1 THE LD C1T(A) HAS GRIEVOUSLY ERRED IN UPHOL DING THE VALIDITY OF THE REOPENING OF ASSESSMENT U/S 148. 4.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD, CIT(A) OUGHT NOT TO HAVE UPHELD THE VALIDITY OF THE PROCEE DINGS INITIATED U/S L47. THE LOWER AUTHORITIES OUGHT TO HAVE PROVIDED T HE COPY OF REASONS RECORDED FOR REOPENING AND OPPORTUNITY TO THE APPEL LANT TO FURNISH OBJECTIONS TO THE SAME. I.T.A NO.2722/AHD/2012 A.Y. 2004-05 PAGE NO PATEL IBRAHIM ISA ALIAS GHULAM IBRAHIM PATEL VS. IT O 3 3. DURING APPELLATE PROCEEDINGS, FOLLOWING ADDITION AL GROUND WAS ALSO TAKEN 5.1 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND/OR ON FACTS IN FAIING TO APPRECIATE THAT THE ORDER PASSED U/S.147 RWS 143(3) BY AO WAS WHOLLY ILLEGAL, UNLAWFUL AND WITHOUT JURISDICTI ON INASMUCH AS IN CASE OF THE REQUISITION OF CASH FROM POLICE AUTHORI TY THE PROCEEDINGS INITIATED U/S.153C RWS 153A OF THE ACT COULD BE INV OKED. 5.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, AS WELL AS IN LAW, THE LD.CIT(A) OUGHT TO HAVE APPRECIATED THAT I N CASE OF REQUISITION OF AN ASSET U/S.132A , THE ASSESSMENT COULD BE FRAMED UNDER THE PROVISIONS OF SEC. 153C RWS 153A ONLY SO THAT THE ASSESSMENT COMPLETED U/S. 147 RWS 143(3) BY AO WAS BAD IN LAW, ILLEGAL AND WITH OUT JURISDICTION. WHICH WAS ADMITTED BEING LEGAL ONE AND FACTS IN RES PECT OF THIS GROUND BEING ALREADY ON RECORD. SINCE THIS GROUND RELATES TO JU RISDICTION AND HAS BEEN TAKEN FOR THE FIRST TIME BEFORE US, WE DEEM IT PROP ER THAT IT MUST BE DECIDED FIRST BY THE LD. CIT(A) AND FOR THIS PURPOSE, THE O RDER OF LD. CIT(A) IS SET ASIDE FOR DECIDING THE APPEAL AFRESH ON ALL THE ISS UES INCLUDING THE ADDITIONAL GROUND RAISED BY THE ASSESSEE BEFORE US. THIS VIEW OF OURS GETS SUPPORT FROM THE DECISION OF MADHYA PRADESH HIGH COURT IN THE CA SE OF CIT VS. TOLLARAM HASSOMAL [2008]298 ITR 0022 WHEREIN FOLLOWING WAS HELD. HELD, THAT THE TRIBUNAL HAVING PERMITTED THE ASSES SEE TO RAISE FOUR ADDITIONAL GROUNDS TREATING THEM TO BE LEGAL GROUND S IN APPEAL FOR THE FIRST TIME, SHOULD HAVE SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AND REMANDED THE CASE TO THE C OMMISSIONER OF INCOME-TAX (APPEALS) FOR DECIDING THE APPEAL AFRESH ON ALL THE ISSUES INCLUDING THE THOSE FOUR GROUNDS RAISED BY THE ASSE SSEE IN THE APPEAL BEFORE THE TRIBUNAL RATHER THAN TO DECIDE THE ADDIT IONAL GROUNDS ON THE MERITS FOR THE FIRST TIME BY ITSELF. I.T.A NO.2722/AHD/2012 A.Y. 2004-05 PAGE NO PATEL IBRAHIM ISA ALIAS GHULAM IBRAHIM PATEL VS. IT O 4 4. IN VIEW OF THE ABOVE, ASSESSEES APPEAL IS ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (ANIL CHATURVEDI) ( D.K. TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 25/10/2013 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,