SHARAD K SHAH, MUMBAI V. ACIT 21(2), MUMBAI

ITA 2927/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101205 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 07-01-2015
• Assessment Year: 2000-2001
• Appeal Filed On: 30-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA R SWAMY
• Section: 143(3); 14A; 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BE NCH, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER / I .T.A. NO.2927/MUM/2012 ( / ASSESSMENT YEAR:2000-01 MR. SHARAD K. SHAH, 6, MADU PARAG, 69,SWASTIK SOCIETY, JVPD SCHEME, VILE PARLE (W), MUMBAI-400 056 / VS. THE ACIT-21(2), AAYAKAR BHAVAN, MUMBAI-400 020 ./ ./ PAN/GIR NO. : AACPS 1840A ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI NISHIT GANDHI / RESPONDENT BY: SHRI MANJUNATHA R. SWAMY / DATE OF HEARING :08 .10.2015 ! / DATE OF PRONOUNCEMENT :08.10.2015 '# / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE LD. CIT(A)-32, MUMBAI DATED 22.2.2012 PERTAINI NG TO ASSESSMENT YEAR 2000-01. 2. THE GRIEVANCE OF THE ASSESSEE REVOLVES AROUND TH E DISALLOWANCE MADE U/S. 14A OF THE ACT. THE ASSESS EE HAS ALSO RAISED ITA. NO.2927/M/2012 2 AN ADDITIONAL GROUND BY WHICH IT HAS CHALLENGED THE JURISDICTION OF THE AO IN MAKING THE REASSESSMENT ON A COMPLETED A SSESSMENT BY INVOKING THE PROVISIONS OF SEC. 147 OF THE ACT. TH E CLAIM OF THE ASSESSEE IS THAT THE REOPENING IS BAD IN LAW AS PER PROVISO TO SEC. 14A OF THE ACT. 3. A PERUSAL OF THE ORDER OF THE LD. CIT(A) SHOWS T HAT THIS IS NOT THE FIRST ROUND OF LITIGATION IN THE EARLIER ROUND, A SIMILAR ADDITIONS WERE MADE BY THE AO WHICH WERE CONFIRMED BY THE LD. CIT(A) AND THE MATTER TRAVELLED UPTO THE TRIBUNAL. THE TRIBUN AL VIDE ORDER DATED 25.5.2009 IN ITA NO. 5506/M/2007 HAD ALSO THE OCCASION TO CONSIDER THIS ADDITIONAL PLEA OF THE ASSESSEE RELAT ING TO THE JURISDICTION OF THE AO IN REOPENING THE ASSESSMENT QUA PROVISO TO SEC. 14A. 4. WE FIND THAT AT PARA-4 OF ITS ORDER THE TRIBUNAL FOUND THAT THERE IS NO FINDING BY THE LD. CIT(A) ON THIS ISSUE. IN VIEW OF THE SAME, THE TRIBUNAL DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF THE LD. CIT(A) FOR CONSIDERATION OF THIS GROUND OF APPE AL. 5. A PERUSAL OF THE IMPUGNED ORDER OF THE LD. CIT(A ) SHOWS THAT ONCE AGAIN THE LD. CIT(A) HAS FAILED TO DECIDE THIS ISSUE. THE ORDER OF THE LD. CIT(A) IS IN GROSS VIOLATION OF THE DIRECTI ONS OF THE TRIBUNAL. WE ARE THEREFORE LEFT WITH NO CHOICE BUT TO RESTORE THE ISSUE ONCE AGAIN TO THE FILE OF THE LD. CIT(A). THE LD. CIT(A ) IS DIRECTED TO CAREFULLY UNDERSTAND THE FACTS OF THE CASE AND THE ADDITIONAL GROUND RAISED BY THE ASSESSEE WHICH READ AS UNDER: ITA. NO.2927/M/2012 3 1.1. WITHOUT PREJUDICE TO THE GROUND ALREADY RAISE D, THE APPELLANT SUBMITS THAT THE LD. CIT(A)-32, MUMBAI ERR ED IN NOT DEALING WITH THE GROUND ON INITIATION OF REASSE SSMENT PROCEEDINGS BY THE LD. AO WHICH WAS TAKEN BY THE APPELLANT BEFORE THE HONBLE TRIBUNAL IN THE FIRST ROUND AND WHICH WAS SET ASIDE TO HIS FILE BY THE HONBLE TRIBUNAL. 1.2. WHILE DOING SO THE LD. CIT(A) FAILED TO APPRE CIATE THAT, A) THE INITIATION AS WELL AS COMPLETION OF RE-ASSESSME NT BY THE AO SIMPLY FOR MAKING A DISALLOWANCE U/S. 14A OF THE ACT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION IS IN CONTRAVENTION OF THE PROVISIONS OF THE ACT. B) WITHOUT PREJUDICE TO THE ABOVE, IN ANY CASE THE APPELLANTS CASE DID NOT FALL WITHIN THE PARAMETER S OF SEC. 147 SO AS TO ENABLE THE AO TO RE-OPEN THE ASSESSMENT ORIGINALLY COMPLETED U/S. 143(3) OF THE ACT. C) IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW THE REASSESSMENT FRAMED IS BAD, ILLEGAL AND VOI D AND DESERVES TO BE QUASHED. AND DECIDE THE SAME AFTER GIVING REASONABLE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH OCTOBER, 2015 SD/- SD/- (SANJAY GARG ) (N.K. BILLAIYA) $% ' /JUDICIAL MEMBER ' / ACCOUNTANT MEMBER & ' MUMBAI; (' DATED : 8 TH OCTOBER, 2015 . % . ./ RJ , SR. PS ITA. NO.2927/M/2012 4 !' #' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ( ) / THE CIT(A)- 4. ) / CIT 5. *+, %%-. , -.! , & ' / DR, ITAT, MUMBAI 6. ,/0 1 / GUARD FILE. $ / BY ORDER, * % //TRUE COPY// % / $& ' (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI