Appeal details
Counselvise Citation
[2011] 135 COUNSELVISE.COM (IT) 2030 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 3 month(s) 4 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
22-02-2011
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
C
Next Hearing Date
22-02-2011
Assessment Year
2003-2004
Appeal Filed On
17-11-2008
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON' BLE SHRI N.S.SAINI, A.M. ) I.T.A. NO. 3740/AHD./2008 ASSESSMENT YEAR : 2003-2004 AMRUTLAL PUNJABHAI PATEL (HUF), SURAT -VS - THE I.T.O., WARD-3(2), SURAT (PAN : AAEHP 8694P) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL K. SHAH, A. R. RESPONDENT BY : SHRI SAMIR TEKRIWAL, D. R O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 25.07.2008 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II, SU RAT FOR THE ASSESSMENT YEAR 2003-2004. 2. VARIOUS GROUNDS RAISED BY THE ASSESSEE ARE AS UN DER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS LAW ON THE SUB- JECT, THE LD. CIT(A), SURAT HAS ERRED IN CONFIRMI NG THE ADDITION OF RS.19,40,862/- ON ACCOUNT OF GIFT RECEIVED AS UNDER. NAME AMOUNT 1. SMT. SANTOKBEN PUNJABHAI PATEL RS. 8,28,000 2. SMT. SANTOKBEN PUNJABHAI PATEL RS. 2,12,826 (ORNAMENTS) 3. SHRI AMRUT P. PATEL RS. 9,00,000 RS.19,40,826 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AS WELL AS LAW ON THE SUBJECT, THE LD. CIT(A) HAS ERRED IN NOT QUASHING THE PROC EEDING U/S. 148. 3. THE A CRAVES TO ADD, ALTER, AMEND, DELETE AL L OR ANY GROUNDS OF APPEAL. 3. AT THE TIME OF HEARING BEFORE US, SHRI ANIL K. S HAH, A.R. APPEARED ON BEHALF OF THE ASSESSEE AND POINTED OUT THAT IN PARA 3.1 OF THE IM PUGNED ORDER, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS STATED THAT A.R. OF THE ASS ESSEE HAS NOT PRESENTED ANY ARGUMENT IN RESPECT OF GROUND CHALLENGING THE REOPENING OF ASSE SSMENT UNDER SECTION 147 READ WITH SECTION 148 OF THE I.T. ACT, 1961. HE SUBMITTED THAT THIS I S FACTUALLY INCORRECT. IN SUPPORT OF THIS, COUNSEL 2 ITA NO. 834-AHD-2009 OF THE ASSESSEE, SHRI ANIL K. SHAH, FILED AN AFFIDA VIT WHEREIN, ON OATH, HE DECLARED THAT DURING THE PERSONAL HEARING, HE HAD CONTESTED THE INITIATION A ND VALIDITY OF PROCEEDINGS UNDER SECTION 147 AND THE CONSEQUENT ISSUE OF NOTICE UNDER SECTION 14 8 OF THE I.T.ACT, 1961. IN THE AFFIDAVIT, IT WAS ALSO STATED THAT HE ARGUED THIS GROUND IN DETAIL AN D PRODUCED JUDICIAL PRONOUNCEMENTS IN SUPPORT OF HIS ARGUMENTS BUT THE LEARNED COMMISSIONER OF IN COME TAX(APPEALS), IN THE IMPUGNED ORDER, HAS STATED THAT THE A.R. IS NOT KEEN TO PRESS THIS GROUND OR HAS NO SUBSTANTIVE ARGUMENT AGAINST THE ACTION TAKEN BY THE ASSESSING OFFICER AND HE DI SMISSED HIS GROUND OF APPEAL. HE SUBMITTED THAT THIS IS FACTUALLY INCORRECT AND HENCE, THE ORD ER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE SET ASIDE AND HE BE DIRECTED TO DEC IDE THE GROUND NO.2 WHEREIN THE ASSESSEE OBJECTED TO NOTICE UNDER SECTION 147 OF THE I.T.ACT , 1961. 3.1 SHRI SAMIR TEKRIWAL, D.R., APPEARED ON BEHALF O F THE REVENUE AND CONTENDED THAT WHEREIN THE ASSESSEE ACTUALLY CONTESTED THE GROUND NO.2 CHALLENGING THE REOPENING OF ASSESSMENT UNDER SECTION 148 NEEDS VERIFICATION AT THE END OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). HE FURTHER SUBMITTED THAT INSTEAD OF FILING THE APPEAL, THE ASSESSEE SHOULD HAVE FILED AN APPLICATION UNDER SECTION 154 BEFORE THE A SSESSING OFFICER. SINCE NO APPLICATION UNDER SECTION 154 HAS BEEN FILED, THIS GROUND BE REJECTED . 4. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE AFFIDAVIT FILED BY SHRI ANIL K . SHAH, ADVOCATE. THE SAID AFFIDAVIT READS AS UNDER: AFFIDAVIT I ANILKUMAR K. SHAH, AGED 54, HINDU IN HABITANT, ADVOCATE BY PROFESSION, RESIDING AT 403, SHIVANJLI APPT., AMBAJI BUS STOP , ATHWA LINES, SURAT - 395007, ON SOLEMNLY OATH AND DECLARE AS UNDER. 01. I HAD APPEARED BEFORE HONORABLE SHRI SIDDHARTH MUK HARJI, THE CIT(A)-II SURAT IN THE CASE OF AMRUTLAL P. PATEL - HUF FOR THE ASSESS MENT YEAR 2003/04, WITH REFERENCE TO MY APPEAL NO. CAS/II/321/07- 08 . 02. DURING THE PERSONAL HEARING, I HAD CONTESTED THE INITIATION AND VALIDITY OF PROCEEDINGS UNDER SECTION 147 AND CONSEQUENT ISSUE OF NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961. I HAD ARGUED THIS GROUND IN DETAIL AND PRODUCED JUDICIAL PRONOUNCEMENTS IN SUPPORT OF MY ARGUMENTS BU T TO RNY GREAT SURPRISE, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS STAT ED THAT AR IS NOT KEEN TO PRESS THIS GROUND OR HAS NO SUBSTANTIVE ARGUMENT AG AINST THE ACTION TAKEN BY THE AO AND HE DISMISSED MY APPEAL. 3 ITA NO. 834-AHD-2009 I REITERATE THAT I HAD VEHEMENTLY ARGUED THE V ALIDITY OF THE PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT,1961 BEFORE THE CIT(A)-II, SURAT. I HAVE FILLED THIS AFFIDAVIT TO SUBMIT IN MY APPEAL N O 3740/AHD /2008 BEFORE THE HONORABLE ITAT-AHMEDABAD. THE ABOVE FACTS ARE TRUE AND CORRECT AND I KNOW THAT TO GIVE FALSE AFFIDAVIT IS AN OFFENCE . IDENTIFIED BY DEPONENT SD/- PHOTO FOR, AMRUTLAL P PATEL HUF SEAL OF THE SD/- PLACE: AHMEDABAD NOTARY ANIL K. SHAH ( ADVOCATE) DATE: 22 ND FEBRUARY, 2011 4.1 CONSIDERING THE TOTALITY OF THE FACTS AND CIRCU MSTANCES OF THE CASE, WE ARE OF THE VIEW THAT IT WILL MEET THE ENDS OF JUSTICE, IF THE IMPUGNED O RDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS SET ASIDE AND HE BE DIRECTED TO VER IFY WHETHER THE COUNSEL OF THE ASSESSEE ACTUALLY ARGUED THE GROUND NO.2 CHALLENGING THE REO PENING OF ASSESSMENT UNDER SECTION 148 OF THE I.T. ACT, 1961. AFTER ADJUDICATING THIS GROUND OF APPEAL, IF REQUIRED, LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WILL ADJUDICATE THE REMAININ G GROUNDS OF APPEAL, IN ACCORDANCE WITH LAW, AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOT H THE SIDES. RESULTANTLY, FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 5. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 22.02. 2011. SD/- SD/- (N.S.SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22 /02/2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT. 3) CIT(A.) CONCERNED, 4) CIT CONCERNED, 5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD TALUKDAR/SR.P.S. 4 ITA NO. 834-AHD-2009
