Shri Vimal Arunkumar Gandhi, V. The ACIT., Circle-6, Surat

ITA 659/AHD/2006

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9016 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-02-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 14-03-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY RAI
• Keywords: Unexplained investment; Valuation report
• Section: 143(3); 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' (BEFORE S/SHRI N S SAINI AND MAHAVIR SINGH) ITA NO.659/AHD/2006 (ASSESSMENT YEAR:- 1999-2000) SHRI VIMAL ARUNKUMAR GANDHI, PROP. GANESH TYRES & AUTO PARTS, POST-ARETH, TAL. MANDVI, SURAT V/S THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-6, SURAT [APPELLANT] [RESPONDENT] APPELLANT BY :- SHRI RAJESH M UPADHYAY, CA RESPONDENT BY:- SHRI SANJAY RAI, SR. DR O R D E R PER N S SAINI (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMI SSIONER OF INCOME- TAX (APPEALS) DATED 28-12-2005 FOR ASSESSMENT YEAR 1999-2000. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UND ER: (1) LEARNED A.O. HAS ERRED IN LAW AND EN FACTS TO INITI ATE PROCEEDINGS U/S 147 OF I.T. ACT, 1961. LEARNED C.I.T.(APPEALS) HAS ALSO ERRED IN CONFIRMING I.T.O. 'S ACTION. (2) LEARNED AO HAD NO REASON TO FORM A BELIEF THAT ASSE SSEE FAILED TO PRODUCE ALL FACTS TRULY AND CORRECTLY PUR CHASING AND LEASING LAND AND OLD DILAPIDATED FEW STRUCTURES AND COST THEREOF OF RS.1,50,000/- ADMITTED BY THE VENDOR OF THE SAID PROPERTY BY STATEMENT ON OATH RECORDED BY AO ON DAT E 27-12- 2004. (3) LEARNED AO HAS ERRED IN LAW AND ON FACTS TO INITIAT E PROCEEDINGS U/S 147 OF IT ACT, 1961, WHEN NO PROCEE DINGS WERE PENDING BEFORE HIM. (4) LEARNED AO HAS ERRED IN LAW AND ON FACTS TO INITIAT E PROCEEDINGS U/S 147 OF IT ACT, 1961 ON VALUATION RE PORT OBTAINED BY LEASE FOR ITS OWN PURPOSE AND MOTIVE WH ICH HAS NO NEXUS WITH PURCHASE OF THE SAID PROPERTY BY THE APPELLANT. 2 (5) LEARNED AO HAS ERRED IN LAW AND ON FACTS TO TREAT P ROCEEDINGS U/S 147 OF IT ACT, 1961 AS SUBSTITUTIVE OF ORDER WH ICH CAN BE MADE U/S 143(3) OF IT ACT, 1961. (6) LEARNED AO HAS ERRED IN LAW AND ON FACTS IN NOT FUR NISHING COPY OF REASONS RECORDED THOUGH AR OF THE APPELLANT ASKED FORTH. THEREFORE ASSESSMENT U/S 147 OF IT ACT MAY B E BAD. (7) LEARNED AO HAS ERRED IN LAW AND ON FACTS TO ADD AN AMOUNT OF RS.7,92,585/- AS UNEXPLAINED INVESTMENT IN PROPERTY ON THE BASIS OF DVOS VALUATION REPORT, WHICH IS HIS OWN O PINION BASED ON HYPOTHETICAL HYPOTHECATED EVIDENCES AND RS.24,730/- STAMP DUTY AND REGISTRATION CHARGES PAI D TOWARD REGISTRATION OF SALE DOCUMENT. (8) LEARNED CIT(A) HAS ALSO ERRED IN CONFIRMING LEARNE D ASSESSING OFFICER'S ORDER. 2 THE ASSESSEE ALSO FILED AN APPLICATION DATED 8-9 -2009 SEEKING LEAVE OF THE TRIBUNAL TO RAISE THE FOLLOWIN G GROUND AS AN ADDITIONAL GROUND: LR. AO HAS ERRED IN LAW AND ON FACTS TO MAKE ASSES SMENT FOR THE YEAR UNDER APPEAL U/S 143(3) OF THE ACT WITHOUT ISS UING A NOTICE U/S 143(2) OF THE ACT. 3 AFTER HEARING RIVAL SUBMISSIONS WE FIND THAT ABO VE ADDITIONAL GROUND IS PURELY A LEGALGROUND OF APPEAL AND GOES TO THE ROOT OF THE ASSESSMENT. THEREFORE, THE ABOVE ADDITIONAL GROUND IS ADMITTED. 4 THE UNDISPUTED FACTS OF THE CASE ARE THAT THE AS SESSEE FILED ORIGINAL RETURN OF INCOME FOR THE ASSESSMENT YEAR 1 999-2000 ON 2-2- 2000 DECLARING TOTAL INCOME OF RS.1,19,361/-ALONG W ITH THE AUDITED ACCOUNTS. THE LEARNED ASSESSING OFFICER ISSUED NOTI CE U/S 148 ON 12-3- 2004. IN COMPLIANCE WITH THE SAID NOTICE, THE ASSES SEE VIDE ITS LETTER DATED 24-1-2005 REQUESTED THE LEARNED ASSESSING OFF ICER TO TREAT THE ORIGINAL RETURN FILED ON 2-2-2000 AS ALSO THE RETUR N FILED IN PURSUANCE TO 3 THE SAID 148 NOTICE. THE IMPUGNED ASSESSMENT ORDER THEREAFTER WAS COMPLETED U/S 143(3) READ WITH SECTION 147 ON 31-3- 2005. ON THE ABOVE FACTS THE GRIEVANCE OF THE ASSESSEE IS THAT THE ASS ESSMENT WAS COMPLETED WITHOUT ISSUING ANY NOTICE U/S 143(2) OF THE ACT AN D THEREFORE THE ASSESSMENT WAS BAD IN LAW. 5 THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE DURING THE COURSE OF HEARING POINTED FROM PAGE NOS. 1 TO 3 OF THE PAPER BOOK WHICH CONTAINS THE WRITTEN SUBMISSION OF THE A SSESSEE DATED 9-9- 2005 FILED BEFORE THE LEARNED COMMISSIONER OF INCOM E-TAX (APPEALS) THAT THE ASSESSEE ALSO CONTENDED BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) THAT THE ASSESSMENT ORDER PASS ED BY THE LEARNED ASSESSING OFFICER WAS BAD IN LAW AS NO NOTICE U/S 1 43(2) WAS ISSUED TO THE ASSESSEE BEFORE COMPLETING THE ASSESSMENT U/S 1 43(3) / 147 OF THE ACT. WE FIND THAT THE ABOVE CONTENTION OF THE ASSES SEE WAS NOT DEALT WITH BY THE LEARNED COMMISSIONER OF INCOME-TAX (APP EALS) AND NO FINDING IN RESPECT OF THIS CONTENTION WAS RECORDED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) EITHER IN FAVO UR OR AGAINST THE ASSESSEE. IN THE ABOVE CIRCUMSTANCES, IN OUR CONSID ERED VIEW, IT SHALL BE IN THE INTEREST OF JUSTICE TO RESTORE THE MATTER BA CK TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) FOR AD JUDICATING THE SAME BY PASSING A SPEAKING ORDER AS PER LAW AFTER A LLOWING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. WE ACCO RDINGLY SET ASIDE THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) AND RESTORE THE MATTER BACK TO THE FILE OF THE LEARNED COMMISSI ONER OF INCOME-TAX (APPEALS) WITH THE ABOVE DIRECTION. THUS, THIS ADDI TIONAL GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSE. 6 IN VIEW OF OUR DECISION IN RESPECT OF THE ABOVE GROUND OF APPEAL, WE REFRAIN FROM ADJUDICATING THE OTHER GROU NDS OF APPEAL AS THE 4 ABOVE GROUND OF APPEAL INVOLVES A JURISDICTIONAL IS SUE AND GOES TO THE ROOT OF THE VALIDITY OF THE REASSESSMENT. 7 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 05-02-2010 SD/- SD/- (MAHAVIR SINGH) JUDICIAL MEMBER (N S SAINI) ACCOUNTANT MEMBER DATE : 05-02-2010 COPY OF THE ORDER FORWARDED TO : 1. SHRI VIMAL ARUNKUMAR GANDHI, PROP. GANESH TYRES & AUTO PARTS, POST-ARETH, TAL. MANDVI, SURAT 2. THE ACIT, CIRCLE-6, SURAT 3. CIT CONCERNED 4. CIT(A)-IV, SURAT 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABA