Shri Nilesh Balvant Mahatma, Surat V. The Income tax Officer,Ward-2(4), Surat

ITA 419/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80362 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 01-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 14-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: M K PATEL
• Keywords: Capital asset; Validity of assessment
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI , A.M.) I. T. A. NO. 419 / AHD/ 20 1 1 (A SSESSMENT YEAR: 2007 - 08) NILESH BALVANT MAHATMA PLOT NO. 547. ROAD NO. 5, GIDC, SACHIN, SURAT - 394230 V/S THE ITO, WARD2(4), SURAT (APPELLANT) (RESPO NDENT) PAN: AAYPM 1060N APPELLANT BY : SHRI M. K. PATEL, A.R. RESPONDENT BY : SHRI ROOP CHAND, SR. D.R. ( )/ ORDER DATE OF HEARING : 01 - 09 - 2014 DATE OF PRONOUNCEMENT : 12 - 09 - 2 014 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL IS FILED BY THE ASSES SEE AGAINST THE ORDER OF CIT(A) - II, SURAT DATED 23.11.2010 FOR A.Y. 2007 - 08. 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE EN GAGED IN THE BUSINESS OF GREY CLOTH MAN UFACTURING AND MASTER WEAVING. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 07 - 08 ON 16.10.2007 DECLARING TOTAL INCOME OF RS. 1,79,582/ - THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U/S. 143(3) VIDE ORDER DATED 01.12.2009 AND TOTAL INCOME WAS D ETERMINED AT RS. 18,13,980 / - . AGGRIEVED BY THE ORDER OF ITA NO 419/AHD/2011 . A.Y. 2007 - 08 2 A.O, ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) VIDE ORDER DATED 23 . 11.2010 DISMISS ED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDE R CIT(A), ASSESSEE IS NOW IN APPEAL BEFOR E US AND HAS RAISED FOLLOWING GROUND: - 1. THE ID. CIT(A) - II, SURAL HAS ERRED IN LAW IN PASSING THE ORDER U/S. 250 OF THE ACT. THE ORDER PASSED U/S. 143(3) OF THE ACT BY THE ID. ASSESSING OFFICER WARD 2(4), SURAT IS UNS IGNED AND WITHOUT SEAL OF THE DESIGNATION OF THE ASSESSING AUTORITY. AS THE ORDER PASSED U/S. 143(3) IS NULLITY IN THE EYES OF LAW, SUBSQUENT ORDER PASSED U/S 250 OF THE ACT BY THE CIT(A) - II, SURAT IS ALSO DESERVED TO BE QUASHED. 2. THE LEARNED C.I.T.(APPEA LS) HAS ERRED IN CONSIDERING THE APPELLANT AS THE OWNER OF THE PROPERTY SOLD, THOUGH THE OWNER IS LESSEE OF THE LAND SOLD AND IT IS NOT A CAPITAL ASSET. THE APPELLANT IS OWNER OF ONLY STRUCTURE CONSTRUCTED AND DOCUMENT PRICE OF THE STRUCTURE IS HIGHER THAN THE JANTRI PRICE AS DETERMINED BY THE STAMP DUTY VALUATION AUTHORITY AND AS SUCH PROVISION OF SECTION 50 - C OF THE ACT, ARE NOT ATTRACTED, ADDITION OF RS. 16,79,286 MADE TO THE RETUNED INCOME BE DELETED. 3. THE APPELLANT, HOWEVER, RESERVES EVERY RIGHT TO A LTER OR TO AMEND THE ABOVE GROUNDS OF APPEAL AND TO ADD ANY NEW GROUNDS OF APPEAL HAT MAY BE RAISED BEFORE YOUR LEARNED HONOUR AT THE TIME OF FINAL HEARING. 4. BEFORE US AT THE OUTSET, THE LD. A.R. SUBMITTED THAT THE GROUND NO. 1 CHALLENGING THE VALIDITY OF ASSESSMENT IS RAISED BEFORE TH E TRIBUNAL FOR THE FIRST TIME AND T HIS GROUND WAS NOT RAISED BEFORE CIT(A). HE FURTHER SUBMITTED THAT THIS GROUND BEING LEGAL IN NATURE AND S INCE IT GOES TO THE ROOT OF THE MATTER, THE ASSESSEE CAN RAISE IT BEFORE THE TRIBUNAL . HE ALSO PLACED RELIANCE ON THE DECISION OF APEX COURT IN THE CASE OF NTPC VS. CIT (1998) 229 ITR 383. HE FAIRLY CONCEDED THAT SINCE THIS GROUND HAS NOT BEEN RAISED BEFORE CIT(A), THE MATTER MAY BE SET ASIDE TO CIT(A). LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND CIT(A) BUT DID NOT SERIOUSLY OBJECT TO THE SUGGESTION OF LD. A.R. OF REMITTING THE ISSUE TO THE FILE OF CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT BEFORE US LD. A.R. HAS CHALLENGED THE ASSESSMENT ORDER PASSED BY THE A.O U/S. 143(3) TO BE NULLITY IN THE EYES OF LAW A S THE SAME IS UNSIGNED AND WITHOUT THE SEAL OF THE A.O. WE ALSO FIND THAT THIS GROUND ITA NO 419/AHD/2011 . A.Y. 2007 - 08 3 WAS NOT RAISED BEFORE THE CIT(A) AND IS RAISED BEFORE US FOR THE FIRST TIME. WE ARE O F THE VIEW THAT THE FACTUAL ASPECT RAISED BY ASSESSEE NEEDS RE - EXAMINATION . WE THEREFORE REMIT THE ISSUE TO THE FILE OF CIT(A) TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW. SINCE THE FIRST GROUND IS REMITTED BACK TO CIT(A) , T HE OTHER GROUNDS RAISED BEFORE U S ARE ALSO NOT ADJUDICATED AND THEY ARE ALSO REMITTED BACK TO THE FILE OF CIT(A) TO DECIDE IT AFRESH IN ACCORDANCE WIH LAW AND AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE . NEEDLESS TO STATE THAT CIT(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO T HE BOTH T HE PARTIES. THUS ALL THE GROUND S ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 12 - 09 - 201 4 . SD/ - SD/ - (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (A PPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD