RAJKUMAR POKHARANA, V. DCIT, CIRCLE-1, Ajmer

ITA 442/JPR/2011

• Counselvise Citation: 44223114 RSA 2011
• Duration Of Justice: 3 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 21-11-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 11-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: K C MOONDRA
• Keywords: Opportunity of being heard
• Section: 148; 154

Judgement Text

ITA NO. 442//JP/2011 SHRI RAJ KUMAR POKHARANA VS. DCIT, CIRCLE- 1, AJMER 1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NO. 442/JP/2011 ASSESSMENT YEAR : 2004-05 PAN : AEPP 5814 E SHRI RAJ KUMAR POKHARANA VS. THE DCIT MOTI MARG, OPP. MAHAVEER COLONY CIRCLE- 1 PUSHKAR ROAD, AJMER AJMER (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.C. MOONDRA DEPARTMENT BY: SHRI RAJESH OJHA DATE OF HEARING: 10-09-2014 DATE OF PRONOUNCEMENT: 31-10-2014 ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), AJMER DATED 21-02-2011 FOR THE ASSESSM ENT YEAR 2004-05. BY THIS APPEAL, SOME OF THE GROUNDS RAISED BY THE ASSE SSE ARE NOT PRESSED THE REMAINING GROUNDS ARE AS UNDER: (1) CHALLENGING THE VALIDITY OF PROCEEDINGS U/S 148 OF THE ACT ON THE GROUNDS THAT :- (A) NOTICE U/S 148 WAS NOT ISSUED BY THE AO HAVING JURISDICTION ON HIM. (B) THE COPY OF REASONS RECORDED WAS NOT SUPPLIED. ITA NO. 442//JP/2011 SHRI RAJ KUMAR POKHARANA VS. DCIT, CIRCLE- 1, AJMER 2 THE LD. CIT(A) ERRED IN LAW IN REJECTING THE GROU ND, REASONS IF ANY RECORDED AS EXPLAINED TO A/R OF AP PELLANT, ARE CORRECT, VAGUE AND ARBITRARY, AS APPELLANT NEITHER RECEIVED ANY LOAN OR ADVANCE FROM M/S. JAIN & JAIN STONES (P) LT D. NOR RECEIVED DIVIDEND OF RS. 3,24,212/- AND LD. AO MADE ASSESSMENT BY MAKING ADDITION OF RS. 3,24,212/- WIT HOUT PROVIDING REASONABLE OPPORTUNITY TO EXPLAIN AND WIT HOUT REASONABLY AND LAWFULLY DIFFERENTIATING BETWEEN LOA NS/ ADVANCES AND DEPOSITS/ CURRENT DEPOSITS. MOREOVER, THE LD. CIT(A) WAS TOTALLY ARBITRARY AND MECHANICAL IN CONFIRMING THE ADDITION EVEN WITHOUT CONSIDERING THE ORDER U/S 154 IN WHICH THE AO HIMSELF REDUCED THE ADDITION TO RS. 1,24,212/-. GROUND NO. 2: LD. CIT(A) HAD ERRED IN MAKING ADDIT ION OF RS. 3,24,212/- I.E. LATER ON REDUCED TO RS. 1,24,212/- U/S 154 OF THE ACT 2.1 WE HAVE HEARD BOTH THE PARTIES ON THE ABOVE ISS UES. THE HON'BLE APEX COURT IN THE CASE OF GKN DRIVESHAFT (INDIA) LTD. VS . ITO , 259 ITR 19 HAS HELD THAT DURING THE COURSE OF REASSESSMENT PROCEED INGS, THE ASSESSEE SHOULD BE SUPPLIED WITH COPY OF REASONS AND THE AO IS OBLI GED TO HEAR THE OBJECTIONS OF THE ASSESSEE IF ANY ON THE CHALLENGE TO SECTION 148 PROCEEDINGS AND DECISION THEREON. SINCE IN THIS CASE, IT APPEAR S THAT THE ASSESSEE WAS NOT SUPPLIED THE COPY OF REASONS AND HIS OBJECTIONS WER E NOT DECIDED. IN CONSIDERATION OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO SET ASIDE THE REASSESSMENT ORDER BACK T O THE FILE OF THE AO TO VERIFY WHETHER THE REASONS RECORDED FOR REOPENING O F THE ASSESSMENT WERE ITA NO. 442//JP/2011 SHRI RAJ KUMAR POKHARANA VS. DCIT, CIRCLE- 1, AJMER 3 APPLIED FOR BY ASSESSESSE AND WHETHER THE SAME WERE SUPPLIED TO THE ASSESSEE OR NOT AND ALSO TO DISPOSE OFF THE OBJECTIONS IF AN Y FILED BY THE ASSESSEE IN THIS BEHALF. THUS RESPECTFULLY FOLLOWING THE DECIS ION OF HON'BLE APEX COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. VS. ITO , WE DIRECT THE AO TO RECONSIDER THE ISSUE ACCORDINGLY AND DECIDE IT BY P ROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE W E HAVE SET ASIDE THE REASSESSMENT ON THIS REASONS NO ADJUDICATION IS REQ UIRED ON MERITS. 3.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31 -1 0-2014 SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 31 ST OCT, 2014 *MISHRA COPY FORWARDED TO:- 1. SHRI RAJ KUMAR POKHARANA, AJMER 2. THE DCIT, CIRCLE- 1, AJMER 3. THE LD. CIT 4. THE LD. CIT(A), JAIPUR BY ORDER 5..THE LD. DR 6.THE GUARD FILE (IT NO. 442/JP/2011) AR ITAT, JAIPUR