M/s. Lion Exports, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-5(2), RAJKOT-GUJARAT

ITA 534/RJT/2013

• Counselvise Citation: 53424914 RSA 2013
• Duration Of Justice: 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 30-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR JAYANT B JHAVERI
• Assessee Lawyers: DR ADHIA
• Keywords: Opportunity of being heard
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO. 534/RJT/2013 ASSESSMENT YEAR : 2005-06 M/S. LION EXPORTS, NR. S.T. WORKSHOP, GONDAL ROAD, DR. VIKRAM SARABHAI MARG, RAJKOT PAN : AAAFL 7431 J ( / APPELLANT) THE I.T.O., WARD-5(2), RAJKOT / RESPONDENT / ASSESSEE BY SHRI D. R. ADHIA, AR / REVENUE BY DR. JAYANT B. JHAVERI, DR / DATE OF HEARING 17.01.2014 !'# / DATE OF PRONOUNCEMENT 29.01.2014 / ORDER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DA TED 18.10.2013 OF CIT(A)- IV, RAJKOT FOR THE ASSESSMENT YEAR 2005-06. 2. THE VARIOUS GROUNDS RAISED IN THIS APPEAL ARE AS UNDER:- 1. THE LD. CIT(A) ERRED IN LAW AND FACTS IN CONFIR MING THE RE-OPENING PROCEEDINGS THE ASSESSMENT U/S. 148 AGAINST THE STA TUTORY PROVISIONS. THE RE- ASSESSMENT PROCEEDINGS BEING BAD IN LAW NEEDS CANCE LLATION. 2. THE LD. CIT(A) ERRED IN LAW AND FACTS IN CONFIRM ING THE RE-OPENING THE ASSESSMENT U/S. 148 WITHOUT CONSIDERING THAT THERE WAS FAILURE IN PROVIDING REASONS FOR RE-OPENING OF THE ASSESSMENT. THE RE-AS SESSMENT PROCEEDINGS BEING BAD IN LAW NEED CANCELLATION. 3.1 THE LD. CIT(A) ERRED IN LAW AND FACTS IN CONFIR MING DISALLOWANCES OF RS.2,36,767/- IN RESPECT OF FOREIGN TOURS EXPENSES. THE DISALLOWANCES NEEDS DELETION. 3.2 WITHOUT PREJUDICE, THE LD. CIT(A) ERRED IN LAW AND FACTS IN CONFIRMING DISALLOWANCE OF RS.2,36,767/- IN RESPECT OF FOREIGN TOURS EXPENSES IN FULL. THE DISALLOWANCE NEEDS SUITABLE REDUCTION. 4. THE LD. CIT(A) ERRED IN LAW AND FACTS IN CONFIRM ING ADDITION OF RS.1,37,940/- U/S 40(A)(IA). THE ADDITION NEEDS DEL ETION. 5. THE RE-ASSESSMENT FRAMED BEING BAD IN LAW NEEDS CANCELLATION. 6. NO REASONABLE AND ADEQUATE OPPORTUNITIES WERE GI VEN AND AS SUCH THE RE-ASSESSMENT IS BAD IN LAW. 7. TAKING INTO CONSIDERATION THE LEGAL, STATUTORY, FACTUAL AND ADMINISTRATIVE ASPECTS, RE-OPENING OF ASSESSMENT U/S 148 BEING BAD IN LAW, NO SUCH PROCEEDINGS OUGHT TO HAVE BEEN INITIATED. THE INITI ATION AND COMPLETION OF THE SAME NEED CANCELLATION. 2 534-RJT-2013 - LION EXPORTS (SMC) 8. TAKING INTO CONSIDERATION THE LEGAL, STATUTORY, FACTUAL AND ADMINISTRATIVE ASPECTS, DISALLOWANCE OF RS.2,36,767/- AND ADDITION OF RS.1,37,940/- OUGHT NOT TO HAVE BEEN MADE. THE DISALLOWANCE NEEDS DELETION. 9. THE APPELLANT CRAVES LEAVE TO ADD/ALTER/AMEND AN D/OR SUBSTITUTE ANY OR ALL GROUND OF APPEAL BEFORE THE ACTUAL HEARING TAKE S PLACE. 3. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E, SHRI D.R. ADHIA, AR, APPEARED AND POINTED OUT THAT THE GROUNDS NO.1 AND 2 RAISED BEFORE THE LD. CIT(A) READ AS UNDER:- 1. THE LD. A.O. ERRED IN LAW AND FACTS IN RE-OPENI NG THE ASSESSMENT U/S 148 AGAINST THE STATUTORY PROVISIONS. THE RE-ASSESS MENT PROCEEDINGS BEING BAD IN LAW NEED CANCELLATION. 2. THE LD. A.O. ERRED IN LAW AND FACTS IN RE-OPENIN G THE ASSESSMENT U/2 148 WITHOUT PROVIDING REASONS FOR RE-OPENING OF THE ASSESSMENT. THE RE- ASSESSMENT PROCEEDINGS BEING BAD IN LAW NEED CANCEL LATION. REFERRING TO THE AFORESAID GROUNDS OF APPEAL, THE L D. AR OF THE ASSESSEE POINTED OUT THAT IN THE IMPUGNED ORDER THE LD. CIT( A) HAS NOT ADJUDICATED THE AFORESAID GROUNDS OF APPEAL. HE ALSO POINTED OUT TH AT THE ASSESSEE ASKED THE ASSESSING OFFICER TO PROVIDE REASONS FOR REOPENING THE ASSESSMENT WHICH WERE NEVER PROVIDED AND THEREFORE, ON THIS GROUND ALONE, THE L D.CIT(A) OUGHT TO HAVE CANCELLED THE ASSESSMENT. 4. AS AGAINST THE AFORESAID SUBMISSIONS MADE BY THE AR OF THE ASSESSEE, SHRI JAYANT B. JHAVERI, DR, POINTED OUT THAT SINCE THE L D. CIT(A) HAS NOT RENDERED HIS DECISION GROUND-WISE, THE IMPUGNED ORDER OF LD. CIT (A) BE SET ASIDE AND HE MAY BE DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE AFRES H AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 5. RIVAL SUBMISSIONS WERE CONSIDERED. BEFORE THE LD . CIT(A), VIDE GROUNDS NO.1 AND 2 THE ASSESSEE HAS CONTESTED THE RE-OPENING OF ASSESSMENT BY ISSUING NOTICE U/S 148. THE LD. CIT(A), IN THE IMPUGNED ORDER, HA S NOT ADDRESSED BOTH THE AFORESAID GROUNDS OF APPEAL. I, THEREFORE, SET ASIDE THE IMP UGNED ORDER OF LD. CIT(A) AND DIRECT HIM TO REPRODUCE THE GROUNDS OF APPEAL OF THE ASSES SEE AND THEREAFTER DECIDE ALL THE 3 534-RJT-2013 - LION EXPORTS (SMC) GROUNDS OF APPEAL AFRESH AFTER GIVING REASONABLE OP PORTUNITY OF BEING HEARD TO BOTH THE SIDES. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 29.01.2014 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- M/S. LION EXPORTS, NR. S.T. WORKSHOP, GONDAL ROAD, RAJKOT 2. / RESPONDENT- THE I.T.O., WARD-5(2), RAJKOT 3. ,0,1 * * 2 / CONCERNED CIT-III, RAJKOT 4. * * 2- / CIT (A)-IV, RAJKOT 5 . 567 1, * 1#, !$ / DR, ITAT, RAJKOT 6 . 79 :; / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT