Kanel Oil & Exports Ind.Ltd., Ahmedabad V. The ACIT., Circle-4, Ahmedabad

ITA 565/AHD/2006

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8976 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 11-02-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 06-03-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL
• Assessee Lawyers: DIVYAKANT PARIKH
• Keywords: Assessment record
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : A HMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBLE SH RI D.C. AGRAWAL, A.M.) I.T.A. NO. 565/AHD./2006 ASSESSMENT YEAR : 1998-1999 KANEL OIL & EXPORTS IND. LTD., AHMEDABAD -VS.- A SSISTANT COMMISSIONER OF INCOME TAX, (PAN : AAACK 8389 D) CIRCLE-4, AHMEDA BAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DIVYAKANT PARIK H RESPONDENT BY : SHRI SHELLEY JINDAL, C IT( D.R.) O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 15.12.2005 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-VIII, AHMEDABAD FOR THE ASSESSMENT YEAR 1998-99. 2. ONE OF THE GROUNDS RAISED BY THE ASSESSEE IN ITS APPEAL IS AS UNDER :- THE LD. C.I.T.(APPEALS) HAS ERRED IN CONFIRMING TH E REOPENING THE ASSESSMENT U/S. 147 OF THE I.T. ACT MADE BY A.O. TH E REASSESSMENT BE HELD TO BE ILLEGAL AND BAD IN LAW NOW. 3. AT THE TIME OF HEARING, ON BEHALF OF ASSESSEE SH RI DIVYAKANT PARIKH APPEARED AND CONTENDED THAT IN THIS CASE NOTICE UNDER SECTION 14 7 WAS ISSUED ON 24.12.2003, WHEREAS REASONS FOR RE-OPENING OF THE CASE UNDER SECTION 148 WERE R ECORDED ON 16.04.2004. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE HON'BLE GUJARAT HIGH CO URT IN THE CASE OF RAJOO ENGINEERS LTD. VS.- DCIT REPORTED IN [2008] 10 DTR (GUJ.) 173 HELD THAT THE REASONS WERE RECORDED BEFORE ISSUING ANY NOTICE UNDER SECTION 148, THE MANDATORY REQUIRE MENTS OF SECTION 148(2) OF RECORDING OF REASONS BEFORE ISSUANCE OF NOTICE WERE NOT COMPLIED WITH. THEREFORE, THE NOTICE UNDER SECTION 148 IS TO BE QUASHED AND SET ASIDE. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT IN THIS CASE THE A.O. HAS NOT RECORDED THE REASONS AS REQUIRED UNDER SECTION 148(2) BEFORE ISSUING NOTICE UNDER SECTION 148. THEREFORE, THE ASSESSMENT FRAMED BY TH E A.O. BE QUASHED. 4. ON THE OTHER HAND, SHRI SHELLEY JINDAL, CIT(D.R. ) APPEARING ON BEHALF OF THE REVENUE COULD NOT CONTROVERT THE AFORESAID SUBMISSIONS OF T HE LD. COUNSEL OF THE ASSESSEE. AS A MATTER OF 2 ITA NO. 565/AHD/2006 FACT, THE LD. D.R. FAIRLY ADMITTED THAT ASSESSMENT RECORDS INDICATE THAT REASONS WERE RECORDED IN APRIL, 2004, WHEREAS NOTICE UNDER SECTION 148 WAS I SSUED ON 24.12.2003. 5. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUT HORITIES BELOW. IT IS MANDATORY REQUIREMENT OF SECTION 148(2) OF RECORDING OF REASO NS BEFORE ISSUING OF NOTICE UNDER SECTION 148. ADMITTEDLY, IN THIS CASE, NO REASONS WERE RECORDED BEFORE ISSUING NOTICE UNDER SECTION 148 ON 24.12.2003. WE, THEREFORE, FOLLOWING THE JUDGMENT O F THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF RAJOO ENGINEERS LTD. (SUPRA) HOLD THAT NOTICE IS SUED UNDER SECTION 148, WITHOUT RECORDING THE REASONS AS REQUIRED UNDER SECTION 148(2) PRIOR TO T HE ISSUE OF NOTICE IS VOID AB INITIO. CONSEQUENTLY THE ASSESSMENT FRAMED UNDER SECTION 14 3(3) READ WITH SECTION 147 ON 24.03.2005 IS QUASHED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 12.02.201 0 SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 12 / 02 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.