S. Sohan Singh Joginder Singh & Co., UDAIPUR V. ACIT, UDAIPUR

ITA 388/JODH/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7949 (ITAT-JODHPUR)
• Duration Of Justice: 2 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-11-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 11-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Assessee Lawyers: YOGESH POKHARANA
• Keywords: Opportunity of being heard
• Section: 153A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 388/JU/2010 [ASSESSMENT YEAR - 2006-07] S. SOHAN SINGH JOGINDER SINGH & CO. VS THE A.C.I.T 431, BHOPALPURA CENTRAL CIRCLE-2 UDAIPUR UDAIPUR PAN NO. AAGFS 9020 G (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI YOGESH POKHARANA DEPARTMENT BY : SHRI G.R. KOKANI DATE OF HEARING : 19.11.2012 DATE OF PRONOUNCEMENT : 17.12.2012 ORDER PER HARI OM MARATHA, J.M. THIS APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 200 6- 07, IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) , JAIPUR, DATED 01/04/2010. 2 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THAT THE ID CIT (A) HAS WRONGLY CONFIRMED THE AS SESSMENT COMPLETED U/S 115WF (READ WITH SECTION 144 OF THE I NCOME TAX ACT) , AS BEFORE COMPLETION OF ASSESSMENT, SEARCH O PERATION WAS CONDUCTED AT THE PREMISES OF THE APPELLANT AND IN V IEW OF PROVISION SECTION 153A, ASSESSMENT PROCEEDINGS STAN D ABATED. THE ASSESSMENT ORDER PASSED BY THE LEARNED AO IS AB -INITIO VOID AND WITHOUT FOLLOWING PROVISIONS OF LAW. HENCE CONF IRMATION OF THE ORDER PASSED BY THE LEARNED AO WITHOUT FOLLOWIN G PROVISIONS OF THE LAW, IS BAD IN LAW, AND ASSESSMENT ORDER PAS SED U/S 115WF BE QUASHED. 2. THAT THE ID CIT (A) HAS WRONGLY CONFIRMED ADDITION MADE IN VALUE OF FRINGE BENEFITS OF RS. 63,270/- BY LEARNED ASSES SING OFFICER, WITHOUT CONSIDERING FACTS AND CIRCUMSTANCES OF THE CASE FULLY. HENCE THE ADDITION MADE IN FRINGE BENEFIT VALUE O F RS 63,2707- IS WITHOUT ANY BASIS AND BE DELETED. 3. THAT THE ID CIT (A) HAS WRONGLY CONFIRMED THE EXCES SIVE INTEREST CHARGED U/S 115WJ(3) OF RS 7,526/- BY THE LEARNED A O. THE INTEREST CHARGED IS EXCESSIVE AND WITHOUT FOLLOWING PROVISIONS OF LAW. HENCE THE EXCESSIVE INTEREST CHARGED BE DEL ETED. 3 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAR EFULLY PERUSED THE ENTIRE MATERIAL ON RECORD. AT THE TIME OF HEARING, IT WAS VEHEMENTLY ARGUED BY SHRI YOGESH PO KHARANA, THAT ASSESSMENT ORDER WAS COMPLETED U/S 144 OF THE INCOME- TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' , FOR SHORT] AND BEFORE COMPLETION OF THE ASSESSMENT, A SEARCH W AS CONDUCTED AT THE PREMISES OF THE ASSESSEE AND, THER EAFTER, IN VIEW OF THE PROVISIONS OF SECTION 153A ASSESSMENT PROCEEDINGS UNDERTAKEN U/S 115WF R.W.S. 144 WOULD A BATE. ACCORDINGLY, THE ASSESSMENT ORDER PASSED BY THE A.O . BECOMES AB INITIO VOID AND WITHOUT FOLLOWING PROVIS IONS OF LAW. 4. WE HAVE GONE THROUGH THE FACTUAL MATRIX OF THIS CASE AND WHILE HEARING THE LD. D.R., WE HAVE FOUND THAT IT WOULD BE IN THE INTEREST OF JUSTICE TO RESTORE THIS APPEA L TO THE FILE OF THE A.O. WITH THE DIRECTION THAT HE SHALL DECIDE THIS LEGAL ISSUE BECAUSE THIS ISSUE HAS NOT BEEN DEALT WITH BY HIM, ALTHOUGH THIS IS A VERY VALID LEGAL ISSUE AND MANDA TORY PROVISIONS OF LAW HAVE BEEN VIOLATED. ACCORDINGLY, WE RESTORE 4 THIS APPEAL TO THE FILE OF THE A.O. WITH THE DIRECT ION THAT HE SHALL CONSIDER AND DECIDE THIS ISSUE AFTER ACCORDIN G OPPORTUNITY OF BEING HEARD, AS PER LAW. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH DECEMBER, 2012. SD/- SD/- (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 17 TH DECEMBER , 2012 VL/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) BY ORDER 5. THE DR ASSISTANT REGISTRAR ITAT, JODHPUR