Shri Shailesh Dungarbhai Prajapati, Ahmedabad V. The Income tax Officer,Ward-9(4), Ahmedabad

ITA 3209/AHD/2011

• Counselvise Citation: 320920514 RSA 2011
• Duration Of Justice: 3 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 20-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD , BEFORE SHRI G. D. AG RAWAL, VICE PRESIDEN T, AND SHRI S. S. GODAR A, JUDICIAL MEMBER . ITA. NO. 3209 /AHD/201 1 (ASS ESSMENT YEAR:200 8 - 0 9 ) MR. SHAILESH DUNGARBHAI PRAJAPATI M.K. HOUSE, NR. TIRYAPATI MARBLES, GANDHINAGAR HIGHWAY ROAD, SABARMATI, AHMEDABAD APPELLANT VS. THE INCOME TAX OFFICER, WARD 9 (4), AHMEDABAD RESPONDENT PAN: A GCPP8621N / BY ASSESSEE : SHRI SUNIL TALATI , A.R. / BY REVENUE : SHRI DINESH SINGH , SR . D.R. / DATE OF HEARING : 1 2 .0 8 .2015 / DATE OF PRONOUNCEMENT : 04 . 0 9 .2015 ITA NO. 3209 /AHD/2011 , A.Y. 0 8 - 0 9 ( MR. SHAILESH DUNGARBHAI PRAJAPATI. VS. IT O ) 2 ORDER PER S. S. G ODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 20 0 8 - 0 9 ARISE S FROM ORDER OF THE CIT(APPEALS) - XV, AHMEDABAD, DATED 5 TH OCTOBER, 2011 PASSED IN APPEAL N O. CIT(A) - XV/ IT O/WD - 9(4)/318/ 10 - 11 , IN PROCEEDINGS U/S.143(3) OF THE INCOME TAX ACT, 1 961, HEREAFTER THE ACT . 2. THIS APPEAL RAISES FOLLOWING SUBSTANTIVE GROUNDS: 1. THE LD. CIT (A) HAD ERRED IN CONFIRMING INCORRECT AND ILLEGAL ADDITION OF RS. 94,80,000 / - U/S 69 OF THE IT. ACT WITHOUT APPRECIATING THE FACT THAT THE LD. A.O. HAD NO JURI SDICTION TO PASS SUCH ORDER. IT IS SUBMITTED THAT THE ORDER PASSED BY THE A.O. DATED 16/12/2010 IS ILLEGAL AND WITHOUT JURISDICTION , AS APPELLANT WAS SUBJECT TO JURISDICTION AND ASSESSMENT U/S 153C BY CENTRAL CIRCLE 2(2) AHMEDABAD. IT IS SUBMITTED THAT TH E SAME BE HELD ACCORDINGLY. 2. WITHOUT PREJUDICE TO THE ABOVE , IT IS SUBMITTED THAT ADDITION MADE BY THE A.O. AND CONFIRMED BY THE CIT(A) OF RS. 94,80,000/ - REPRESENTED AMOUNTS DEPOSITED BY VARIOUS PARTNERS IN BANK ACCOUNT OF P'SHIP FIRM M/S. WEST WING B UILDCON , WHEREIN APPELLANT WAS PARTNER WITH ONLY 12.5% SHARE AND AMOUNT INVESTED BY HIM WAS FULLY EXPLAINED BEFORE A.O. AND CIT(A). 3. FACTS OF THE CASE ARE IN A NARROW CAMPUS. THE ASSESSEE FILED HIS RETURN ON 19.12.2008 ADMITTING INCOME OF RS.75,310/ - . THE DEPARTMENT CONDUCTED A SEARCH IN HIS GROUP OF CASES ON 08.12.2009. THE ASSESSING OFFICER/ITO, WARD - 9(4), AHMEDABAD TOOK UP SCRUTINY AND ISSUED NOTICES U/S. 142(1) R.W.S. 143(2) OF THE ACT. VARIOUS OTHER NOTICES UNDER THE VERY STATUTORY PROVISIONS ALSO FOLLOWED. THE ASSESSING OFFICER THEREAFTER ITA NO. 3209 /AHD/2011 , A.Y. 0 8 - 0 9 ( MR. SHAILESH DUNGARBHAI PRAJAPATI. VS. IT O ) 3 QUOTED ASSESSEES FAILURE TO FILE REPLY THERETO. AND FRAMED REGULAR ASSESSMENT ON 16.12.2010 MAKING ADDITION UNDER CHALLENGE OF RS.94,80,000/ - U/S. 69 OF THE ACT. THE CIT(A) HAS AFFIRMED THE SA ID ACTION . 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE CASE FILE. IT TRANSPIRES THAT THE ABOVE STATED SEARCH CULMINATED IN SECTION 153C PROCEEDINGS BEING INITIATED AGAINST THE ASSESSEE IN FURTHERANCE TO A NOTICE DATED 07.09.2011. THE ASSESSING OFFICER /ACIT , CENTRAL CIRCLE 2(2) FRAMED SEARCH ASSESSMENT IN HIS CASE ON 23.12.20011 COMPUTING INCOME OF RS.1,57,90,014/ - ALONG WITH AGRICULTURAL INCOME OF RS.9,52,450/ - . THE ASSESSEE DOES NOT SEEM TO HAVE CHALLENGE D CORRECTNESS THEREOF. ALL THESE FACTS DEMONSTRA TE THAT TWO ASSESSMENT ORDERS I.E. THE ONE IN REGULAR ASSESSMENT DATED 16.12.2010 AND THE OTHER UNDER 153C ASSESSMENT DATED 23.12.2011 STAND PASSED IN ASSESSEES CASE. TH IS PROVES THAT THE FORMER ASSESSMENT ORDER SUBJECT MATTER OF CHALLENGE IS WITHOUT JUR ISDICTION AS THE SAME IS DEEMED TO HAVE BEEN A BA TED AFTER INITIATION OF SECTION 153C PROCEEDINGS. A COORDINATE BENCH OF THE TRIBUNAL IN APPEAL ITA NO. 1812/AHD/2011 DECIDED ON 09.1.2015 CHALLENGING SECTION 271(1)(B) IN ASSESSEES OWN CASE QUA THE VERY ASS ESSMENT HAS ALREADY ADJUDICATED THE ISSUE IN THE SAME TUNE. THE REVENUE FAILS TO DISPUTE ALL THESE FACTS. WE HOLD IN THESE CIRCUMSTANCES THAT THIS REGULAR ASSESSMENT FRAMED IN ASESSEES CASE IS WITHOUT JURISDICTION . ITA NO. 3209 /AHD/2011 , A.Y. 0 8 - 0 9 ( MR. SHAILESH DUNGARBHAI PRAJAPATI. VS. IT O ) 4 5. THIS ASSESSEES APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 04 TH DAY OF SEPTEMBER , 201 5 . SD/ - SD/ - (G. D. AGRAWAL) (S. S. GODARA) VICE PRESIDENT JUDICIAL MEMBER AHMEDABAD: DATED 04 /0 9 /2015 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO: - 1. / REVENUE 2. / ASSESSEE 3. / CONCERNED CIT 4. - / CIT (A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. BY ORDER / , / ,