M/s. Mohit Dolatrai Patel, Bhavnagar V. The DCIT, Circle-2, Bhavnagar

ITA 2781/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6125 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 143(3); 143(1); 147; 148

Judgement Text

- , - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIPKUMAR KEDIA, ACCOUNTANT MEMBER ./ ITA NO.2781/AHD/2017 [ASSTT.YEAR: 2009-10] SHRI MOHIT DOLATRIA PATEL PLOT NO.1040 A/2 BESIDE LA MEERA APARTMENT AMBAWEADI BHAVNAGAR 364 001. VS. DCIT, CIR.2 BHAVNAGAR. ./ ITA NO.2783/AHD/2017 [ASSTT.YEAR: 2009-10] SHRI PANKAJ NAGINDAS BHAYANI 305, MADAV DARSHAN WAGHAWADI ROAD BHAVNAGAR. PAN : AANPB 9707 B VS. DCIT, CIR.2 BHAVNAGAR. ( APPLICANT ) (RESPONDENT) ASSESSEE BY : SHRI SANJAY R. SHAH, AR REVENUE BY : SHRI ADITYA SHUKLA, SR.DR ! '#$ % &' / DATE OF HEARING : 06/08/2019 ()* % &' / DATE OF PRONOUNCEMENT: 07/08/2019 +, / O R D E R PER BENCH: PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANCE OF THE ASSESSEES AGAINST SEPARATE ORDERS OF THE LD.CIT(A) DATED 5.9.2017 PASSED IN THE ASSTT.YEAR 2009-10 ON THE RESPECTIVE APPEALS OF THE APPELLANTS. ITA NO.2781 AND 2783/AHD/2017 2 2. IN THE FIRST GROUND OF APPEAL, BOTH THE APPELLAN TS HAVE CHALLENGED REOPENING OF THE ASSESSMENT UNDER SECTIO N 147 OF THE INCOME TAX ACT, 1961 BY ISSUANCE NOTICE UNDER SECTI ON 148 OF THE ACT. 3. BRIEF FACTS IN THE CASE OF SHRI MOHIT DALATRAI PA TEL ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ELECTRO NICALLY ON 12.9.2009 DECLARING TOTAL INCOME AT RS.7,39,730/-. THIS RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TA X ACT ON RETURNED INCOME. THE ASSESSMENT WAS REOPENED BY IS SUANCE OF NOTICE UNDER SECTION 148 ON 29.3.2016. THEREAFTER, THE LD.AO HAS PASSED THE IMPUGNED ORDER ON 21.12.2016. IN THE CA SE OF SHRI PANKAJ NAGINDAS BHAYANI RETURN WAS FILED ELECTRONICA LLY ON 22.9.2009 DECLARING TOTAL INCOME AT RS.29,05,520/-. AN ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) ON 30.11.2011. THE AO THEREAFTER REOPENED THE ASSESSM ENT AND ISSUED NOTICE UNDER SECTION 148 OF THE ACT ON 29.3. 2016. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET CONT ENDED THAT NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED UPON BOTH THE ASSESSEES AFTER EXPIRY OF FOUR YEARS FROM THE END O F THE RELEVANT ASSESSMENT YEAR. HE TOOK US THROUGH PAGE NO.58-59 OF THE PAPER BOOK IN THE CASE OF PANKAJ NAGAINDAS BHAYANI AND SUB MITTED THAT THE APPROVAL IN THIS CASE FOR REOPENING OF THE ASSE SSMENT HAS BEEN GRANTED BY THE JT. COMMISSIONER WHEREAS UNDER SECTION 151 OF THE ACT, THIS APPROVAL WAS OUGHT TO BE GRANTED B Y THE LD.COMMISSIONER. SIMILARLY, IN THE CASE OF MOHIT D OLATRAI PATEL COPY OF SUCH REASONS ALONG WITH APPROVAL IS BEING P LACED ON PAGE NOS.18 AND 19 OF THE PAPER BOOK. THE APPROVAL HAS BEEN GRANTED BY THE JCIT, RANGE-2, BHAVNAGAR. THUS, ACCORDING TO THE ITA NO.2781 AND 2783/AHD/2017 3 LD.COUNSEL FOR THE ASSESSEE, NOTICE UNDER SECTION 1 48 WAS WITHOUT JURISDICTION AND DESERVES TO BE QUASHED IN BOTH THE CASES. 4. THE LD.DR, ON THE OTHER HAND, SUBMITTED THAT THI S PLEA WAS NOT TAKEN BY THE ASSESSEE BEFORE THE LD.CIT(A) THOU GH THEY HAVE CHALLENGED REOPENING OF THE ASSESSMENT, BUT IT WAS NOT VERIFIED WHETHER FROM THIS VERIFICATION, SOME OTHER DETAILS ARE AVAILABLE EXHIBITING THAT APPROVAL WAS GRANTED BY THE COMPETE NT AUTHORITY. 5. WE HAVE DULY CONSIDERED RIVAL SUBMISSIONS AND GO NE THROUGH THE RECORD CAREFULLY. THERE IS NO DISPUTE WITH REG ARD TO THE PROPOSITION THAT IF FOUR YEARS HAVE EXPIRED FROM TH E END OF THE RELEVANT ASSESSMENT YEAR, THEN NOTICE UNDER SECTION 148 CANNOT BE ISSUED UNLESS PR.CHIEF COMMISSIONER OR CHIEF COM MISSIONER, OR PR.COMMISSIONER OR COMMISSIONER IS SATISFIED ON THE REASONS RECORDED BY THE AO THAT IT IS A FIT CASE FOR THE IS SUE OF SUCH NOTICE. IN OTHER WORDS, UNLESS THE APPROVAL IS BEING TAKEN FROM THESE OFFICIALS NO NOTICE CAN BE ISSUED. PRIMA FACIE FROM THE PERUSAL OF THE COPY OF PROFORMA WHICH HAVE BEEN TRANSMITTED BY THE AO FOR SEEKING APPROVAL, IT IS DISCERNIBLE THAT SUCH APPRO VAL BY THE JCIT, WHO IS COMPETENT OFFICER IN THE PRESENT CASE, BUT T HIS PLEA WAS NOT TAKEN BEFORE ANY OF THE AUTHORITIES BELOW, NOR IT W AS VERIFIABLE. CONSIDERING THE ABOVE ASPECTS, WE DEEM IT APPROPRIA TE TO SET ASIDE ORDERS OF THE LD.CIT(A) IN BOTH THE CASES AND REMIT THE ISSUE BEFORE THE LD.CIT(A). THE LD.CIT(A) IS REQUESTED T O VERIFY THE FACT, WHETHER APPROVAL HAS BEEN TAKEN FROM THE LD.PR.CIT/ CHIEF COMMISSIONER OR PR.COMMISSIONER/COMMISSIONER BEFORE ISSUANCE OF NOTICE IN BOTH THE CASES. IT IS ALSO OBSERVED T HAT THE ASSESSEE WILL BE AT LIBERTY TO RAISE ANY OTHER PLEA REGARDIN G VALIDITY OF RE- OPENING OF THE ASSESSMENT AND THE LD.CIT(A) WOULD E NTERTAIN ALL ITA NO.2781 AND 2783/AHD/2017 4 SUCH PLEAS WHILE RE-ADJUDICATING THE ISSUE OF REOPE NING. IN CASE PRAYER OF THE ASSESSEE IS BEING ACCEPTED BY THE LD. CIT(A), THEN OTHER ISSUES WOULD BECOME REDUNDANT. BUT IN CASE RE OPENING IS UPHELD IN BOTH THE APPEALS, THEN THE ASSESSEE WILL BE AT LIBERTY TO CHALLENGE SUCH ORDER OF THE LD.CIT(A) ALONG WITH TH E ISSUES RELATING TO THE ADDITION ON MERIT BEFORE THE TRIBUNAL, BECAU SE IN THE PRESENT PROCEEDINGS, WE ARE NOT ADJUDICATING THE AD DITION ON MERIT. THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR INJU RE THE CASE OF THE AO AND WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSEE. 6. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 7 TH AUGUST, 2019. SD/- SD/- (PRADIPKUMAR KEDIA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER