The ACIT, Circle-1, RAJKOT-GUJARAT V. M/s. Jitendra G. Patel Projects Ltd., RAJKOT-GUJARAT

ITA 436/RJT/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2024 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-02-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 08-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR AIR
• Assessee Lawyers: D M RINDANI R H
• Keywords: Reopening of assessment
• Section: 143(3); 147; 148

Judgement Text

H R, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. 3.. R, R O . . O , O BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAVA, AM IT A NO . 435 AND 436 /RJT/20 1 1 . AI I / ASSESSMENT YEAR S - 2005 - 06 AND 200 6 - 0 7 ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE - 1 , AAYAKAR BHAVAN, 5TH FLOOR, RACE COURSE, RING ROAD, RAJKOT - 360001 . ( / APPELLANT) VS. M/S JITENDRA G PATEL PROJECT LTD , C - 13, USHAKIRAN APARTMENT, SURENDRANAGAR MAINROAD, RAJKOT PAN: AABCJ3182G . N / RESPONDENT S R / REVENUE BY SHRI. AVINASH KUMAR AIR /ASSESSEE BY SHRI D.M.RINDANI R H /DATE OF HEARING 4.2. 2013 R H / DATE OF PRONOUNCEMENT 8.2.2013 / ORDER 3.. R, R O / T. K. SHARMA, J. M THESE TWO APPEALS BY THE REVENUE ARE AGAINST THE COMMON ORDER DATED 8.8.2011 OF THE LD.CIT(A) - I, RAJKOT FOR THE ASSESSMENT YEAR S 2005 - 06 AND 200 6 - 07 . ITA NO.435 AND 436/RJT/2011. 2 2. THE ONLY GROUND RAISED IN THESE APPEALS BY THE REVENUE IS THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.13,03,958/ - AND RS.12,99,648/ - ON ACCOUNT OF DEDUCTION CLAIMED U/S 80IA(4) OF THE INCOME TAX ACT, 1961 (THE ACT) FOR THE ASSESSMENT YEARS 2005 - 06 AND 2006 - 07 R RESPECTIVELY. 3 . AT THE TIME OF HEARING SHRI D.M.RINDANI, THE LD. COUNSEL APPEARED ON BEHALF OF THE ASSESSEE FILED A PAPER BOOK CONTAINING 22 PAGES WHICH INTER - ALIA INCLUDES A PRAYERS OF RESPONDENT AS REGARD RULE 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. THESE PRAYERS FOR BOTH ASSESSMENT YEARS READ AS UNDER : THE RESPONDENT ABOVE NAMED MOST RESPECTFULLY SUBMITS: 1. THAT THE AFORESAID APPEALS ARE FILED BY REVENUE AGAINST COMMON ORDER D ATED 8.8.2011 PASSED BY THE LD.CIT(A) - I, RAJKOT, IN WHICH THE REVENUE IS AGGRIEVED BY THE GRANT OF DEDUCTION US/ 80IA(4) BY LD. CIT(A). (2) THAT BEFORE THE LD. CIT(A) THE RESPONDENT A BO VE NAMED HAD RAISED A SPECIFIC AND SEPARATE GROUND AGAINST REOPENING OF ASSESSMENT U/S 147 R.W.S. 148 OF THE ACT BUT VI D E PARA 8 OF THE COMMON ORDER, THE LEARNED CIT(A) HAS NOT ADJUDICATED UPON THE SAID GROUND FOR THE REASON THAT ON MERITS OF THE CASE, THE GROUND RELATING TO DEDUCTION U/S 80IA(4) WAS ALLOWED. (3) THAT THE RE SPONDENT HAS NOT FILED A SEPARATE CROSS OBJECTION AGAINST THE APPEAL BY REVENUE UNDER BELIEF THAT AS PER RULE 27 OF THE ITAT RULES, THE RESPONDENT HAS BEEN GRANTED REMEDY TO OBJECT TO THE FINDINGS OF THE LD. CIT(A) IN RESPECT OF ISSUES DECIDED AGA INST THE RESPONDENT (4) THAT THE ISSUE REGARDING JURISDICTION U/S 147 OF THE ACT IS A LEGAL ISSUE WHICH ARISES FROM THE GROUNDS OF APPEAL BEFORE THE FIRST APPELLATE AUTHORITY AND ALTHOUGH IT WAS LEGAL GROUND AS ALSO THE FIRST GROUND OF APPEAL BEFORE HIM, RAISING A GROUND THAT THE ORDER U/S 147 WAS BAD IN LAW, THE SAME HAS NOT BEEN DECIDED BY THE LD. CIT(A) AND HENCE THE RESPONDENT BEGS TO STATE BEFORE THE HONBLE BENCH THAT THE ITA NO.435 AND 436/RJT/2011. 3 RESPONDENT WISHES TO OBJECT TO THE ACTION OF THE CIT(A) IN NOT ADJUDICATING U PON THE SAID GROUND THUS DISMISSING THE SAME AGAINST THE RESPONDENT AND THUS THE RESPONDENT TO THIS EXTENT IS AGGRIEVED BY THE ORDER OF THE LD. CIT(A). ' 4. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT FOR BOTH THE ASSESSMENT YEARS, BEFORE THE L D. CIT(A), THE ASSESSEE HAS CHALLENGED THE ISSUE OF REOPENING OF THE ASSESSMENT U/S 148 OF THE ACT BECAUSE THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) WHEREIN THE DEDUCTION U/S 80IA(4) WAS ALLOWED. IN THE COMMON IMPUGNED ORDER FOR BOTH THE ASSESSM ENT YEARS, THE LD. CIT(A) HAS NOT ADJUDICATED UPON THE GROUND CHALLENGING THE REOPENING OF THE ASSESSMENT ON THE GROUND THAT SINCE ON MERIT, RELIEF IS ALLOWED, THE GROUND RELATING TO REOPENING OF THE ASSESSMENT BECOME S PURELY ACADEMIC AND NEEDS NO FURTH ER ADJUDICATION. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT AS PER RULE 27 OF THE ITAT RULES, THE RESPONDENT HAS BEEN GRANTED A REMEDY TO OBJECT TO THE FINDINGS OF THE LD. CIT(A). IN SUPPORT OF THIS, THE RELIANCE WAS PLACED ON THE FOLLOWING DECI SIONS: 1 ITO VS. SMT. GURINDAR KAUR ( 2006 ) 102 ITD 189 2 CIT VS. ABDUL RAHMAN SAIT 306 ITR 142 (MAD) 3 HUKUMCHAND MILLS CO. LTD. V.CIT ( 1967 ) 63 ITR 232(SC) 4 ACIT V/S INDIA CEMENT LTD 124 ITD 343 5 ACIT VS BALBIR CHAND MAINI . 111 TTJ 160 6 DAHOD SAHAKARI KHARID VECHAN SANGH LTD. V CIT (2006 ) 282 ITR 321 ( GUJ ) 5. AFTER DRAWING OUR ATTENTION TO THE RELEVANT PORTIONS OF THE AFOREMENTIONED DECISIONS, THE LD. COUNSEL OF THE ASSESSEE POINTED OUT THAT IN THE IMPUGNED ORDER THE LD. CIT(A) HAS NOT ADJU DICATED UPON THE GROUND CHALLENGING THE REOPENING OF THE ASSESSMENT, THEREFORE, THE ITA NO.435 AND 436/RJT/2011. 4 TRIBUNAL EITHER DECIDE THIS ISSUE OR DIRECT THE LD. CIT(A) TO DECIDE THE SAME. AS AGAINST THIS, SHRI AVINASH KUMAR, THE LD. DR POINTED OUT THAT THE LD. CIT(A) BE DIRECTE D TO DECIDE THE GROUND CHALLENGING THE REOPENING OF T HE ASSESSMENT FOR BOTH THE ASSESSMENT YEARS, NECESSARILY HE WILL DECIDE THE APPEALS OF THE ASSESSEE ON MERITS. 6 . HAVING HEARD BOTH THE SIDES AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES B ELOW. IT IS PERTINENT TO NOTE THAT FOR BOTH THE ASSESSMENT YEARS, THE ASSESSEE TOOK A SPECIFIC GROUND CHALLENGING THE REOP ENING OF THE ASSESSMENT U/S 148 OF THE ACT. ADMITTEDLY, FOR BOTH THE ASSESSMENT YEARS, THE LD. CIT(A) HAS NOT ADJUDICATED UPON THE R EOPENING OF THE ASSESSMENT U/S 148 OF THE ACT ON THE GROUND THAT IT HAS BECOME PURELY ACADEMIC AFTER ALLOWING THE DEDUCTION U/S 80IA(4) OF THE ACT. RULE 27 OF THE ITAT RULES, 1963 PROVIDES THAT RESPONDENTS IN AN APPEAL CAN SUPPORT THE ORDER APPEALED AGA INST ON ANY OF THE GROUNDS EVEN THOUGH HE MAY NOT HAVE FILED AN INDEPENDENT APPEAL OR CROSS - OBJECTION. ADMITTEDLY, IN THE CASE IN HAND, FOR BOTH THE ASSESSMENT YEARS, THE LD. CIT(A) HAS NOT ADJUDICATED UPON THE GROUND CHALLENGING THE REOPENING OF THE ASS ESSMENT U/S 148 OF THE ACT. WE, THEREFORE , SET ASIDE THE ORDER OF THE LD. CIT(A) FOR BOTH THE ASSESSMENT YEARS AND DIRECT HIM TO FIRST DECI DE THE ISSUE OF REOPENING OF THE ASSESSMENT U/S 148 AND THEN IF NECESSARY ADJUDICATE OTHER GROUNDS RAISED BY THE ASS ESSEE IN ITS APPEALS. 7 . IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL S OF THE REVENUE ARE TREATED AS ALLOWED . ITA NO.435 AND 436/RJT/2011. 5 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD SD ( .. 2S / D. K. SRIVASTAVA) ( H.. I / T. K. SHARMA) AND / ACCOUNTANT MEMBER A S / JUDICIAL MEMBER I/ ORDER DATE 8. 2. 2013 . /RAJKOT SRL RJO EO / COPY OF ORD ER FORWARDED TO: - 1. / APPELLANT - . N / RESPONDENT - 3. R V / CONCERNED CIT . 4. V - / CIT (A) . 5. AAR, H R, / DR, ITAT, RAJKOT 6. I / GUARD FILE. / B Y ORDER , TRUE COPY SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, RAJKOT.