The ACIT,Vapi Circle, Vapi V. Shri Krishnakumar R.Parmar, SILVASSA

ITA 3175/AHD/2011

• Counselvise Citation: 317520514 RSA 2011
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 24-04-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 15-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: R N VEPARI
• Keywords: Opportunity of being heard
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI D. K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NOS.2672, 3174 & 3175 / AHD/2011 (ASSESSMENT YEAR 1999-2000, 2000-01 & 2001- 02 RESPECTIVELY) ACIT, VAPI CIRCLE VAPI VS. KRISHNAKUMAR R PARMAR, SAKET BUNGLOW, PARMARWADI, SAYLI ROAD, SILVASA. C.O.NOS.268, 50 & 51/AHD/2011 IN I.T.A. NOS.2672, 3174 & 3175 / AHD/20 (ASSESSMENT YEAR 1999-2000, 2000-01 & 2001-02 RESPE CTIVELY) KRISHNAKUMAR R PARMAR, VS. ACIT, VAPI CIRCLE, SAKET BUNGLOW, VAPI PARMARWADI, SAYLI ROAD, SILVASA. PAN/GIR NO. : ACEPP2308B (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI B L YADAV, SR. DR RESPONDENT BY: SHRI R N VEPARI, AR DATE OF HEARING: 24.04.2012 DATE OF PRONOUNCEMENT: 24.04.2012 O R D E R PER BENCH:- THESE ARE THREE APPEALS OF THE REVENUE FOR THE ASS ESSMENT YEARS 1999-2000, 2000-01 & 2001-02 AND THREE CROSS OBJECT IONS OF THE ASSESSEE FOR THE SAME ASSESSMENT YEARS AND THESE ARE DIRECTE D AGAINST THE THREE I.T.A.NOS.2672,3174,3175 /AHD/2011 C.O.NOS.268,50&51/AHD/2011 2 SEPARATE ORDERS OF LD. CIT(A) VALSAD DATED 26.08.20 11 FOR THE ASSESSMENT YEARS 1999-2000, DATED 12.09.2011 FOR TH E ASSESSMENT YEAR 2000-01 AND DATED 12.09.2011 FOR THE ASSESSMENT YEA R 2001-02. ALL THESE APPEALS AND CROSS OBJECTION WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CON VENIENCE. 2. IN THE C.O. FILED BY THE ASSESSEE FOR ALL THE TH REE ASSESSMENT YEARS, THE ASSESSEE HAS OBJECTED REGARDING VALIDITY OF REO PENING ON THIS BASIS THAT REOPENING IS BAD BECAUSE NO INCOME HAS ESCAPED ASSESSMENT AS NO TRANSFER HAS TAKEN PLACE DURING THE RELEVANT YEAR A ND, THEREFORE, NO INCOME UNDER CAPITAL GAIN TAX HAS ARISEN. THIS IS ALSO A CONTENTION IN ASSESSMENT YEAR 1999-2000 THAT NOTICE U/S 148 WAS I SSUED BEYOND THE TIME LIMIT PRESCRIBED AND SECTION 150 HAS BEEN WRON GLY INVOKED IN THE ABSENCE OF SPECIFIC DIRECTION. 3. IT WAS SUBMITTED BY THE LD. A.R. THAT ALL THESE GROUNDS WERE RAISED BEFORE LD. CIT(A) ALSO BUT HE HAS NOT GIVEN ANY DEC ISION ON THESE ASPECTS BECAUSE IT IS HELD BY HIM THAT IN HIS VIEW, IT IS I NCORRECT TO REOPEN THE ASSESSMENT ON THE BASIS OF INCORRECT ITAT ORDER AND HE HELD THAT REOPENING OF THE ASSESSMENT BY THE A.O. IS INCORREC T AND NOT SUSTAINABLE. BUT HE HAS NOT GIVEN HIS FINDING ON OTHER ASPECTS I .E. WHETHER THE SERVICE OF NOTICE U/S 148 WAS WITHIN THE TIME LIMIT PRESCRI BED AND WHETHER SECTION 150 WAS RIGHTLY INVOKED OR NOT AND WHETHER THERE IS ANY TRANSFER OF ANY ASSET HAVING TAKEN PLACE IN THE RELEVANT YEA R OR NOT. HE SUBMITTED THAT FOR DECIDING THESE ISSUES, THE MATTER SHOULD GO BACK TO THE FILE OF LD. CIT(A). LD. D.R. SUBMITTED THAT THERE IS ONE GROUN D RAISED BY THE REVENUE ALSO IN ITS APPEAL THAT LD. CIT(A) WAS NOT CORRECT TO HOLD THAT REASSESSMENT WAS INVALID. HE SUBMITTED THAT REOPEN ING SHOULD BE HELD VALID. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND I.T.A.NOS.2672,3174,3175 /AHD/2011 C.O.NOS.268,50&51/AHD/2011 3 THAT VARIOUS OBJECTIONS WERE RAISED BY THE ASSESSEE BEFORE LD. CIT(A) REGARDING VALIDITY OF REOPENING BUT THE DECISION OF LD. CIT(A) IS ONLY ON ONE ASPECT AND OTHER ASPECTS ARE NOT DEALT WITH BY HIM. NOW, THESE ASPECTS ARE BEING PRESSED BEFORE US BY THE LD. A.R. BY WAY OF FILING THE CROSS OBJECTIONS AND HENCE, WE RESTORE BACK THIS MA TTER TO THE FILE OF LD. CIT(A) FOR A DECISION ON ALL THESE ASPECTS. SINCE, THE MATTERS ARE BEING RESTORED BACK TO THE FILE OF LD. CIT(A) FOR A FRESH DECISION ON THOSE ASPECTS WHICH ARE NOT DECIDED BY HIM EARLIER, WE FE EL IT PROPER THAT LD. CIT(A) SHOULD DECIDE THE ENTIRE MATTER AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 5. IN THE RESULT, ALL THE THREE CROSS OBJECTIONS FI LED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN VIEW OF OUR ABOVE DECISION WITH REGARD TO CRO SS ABJECTIONS FILED BY THE ASSESSEE, VARIOUS ISSUES RAISED BY THE REVEN UE IN ITS APPEALS DO NOT CALL FOR ANY ADJUDICATION AT THIS STAGE BECAUSE THE 1 ST ISSUE RAISED BY THE REVENUE REGARDING REOPENING HAS TO BE DECIDED BY LD . CIT(A) AFRESH AS HELD BY US ABOVE AND THEREAFTER, HE HAS TO DECIDE T HE MERIT BECAUSE MERIT CANNOT BE DECIDED BEFORE DECIDING ALL THE TECHNICAL ISSUES. HENCE, WE DO NOT EXPRESS OUR OPINION ON VARIOUS GROUNDS RAISED B Y THE REVENUE IN ITS APPEALS AT THIS STAGE. 7. IN THE RESULT, ALL THE APPEALS OF THE REVENUE AS WELL AS CROSS OBJECTIONS OF THE ASSESSEE ARE ALLOWED FOR STATISTI CAL PURPOSES. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING ITSELF AS MENTIONED HEREINABOVE. SD./- SD./- (D.K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP I.T.A.NOS.2672,3174,3175 /AHD/2011 C.O.NOS.268,50&51/AHD/2011 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION.27/4 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27/4.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 24/4 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.30/4 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30/ 4/12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .