The DCIT, Cent, Circle-1, Surat V. Shri Rajubhai Lakahbhai Bharwad, Surat

ITA 708/AHD/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0851 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 07-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Keywords: Additional evidence

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO. 708/AHD/2011 / ASSESSMENT YEAR : 2008-09 DCIT, CENTRAL CIRCLE-1, SURAT VS SHRI RAJUBHAI LAKHABHAI BHARWAD AT & POST LASKANA, KAMREJ, SURAT PAN : AFKPB 9356 B / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI R.I. PATEL, CIT-DR ASSESSEE BY : NONE / DATE OF HEARING : 12/08/2016 / DATE OF PRONOUNCEMENT: 12/08/2016 / O R D E R PER R.P. TOLANI, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, AHMEDABAD DATED 23.12.2010 FOR ASSESSMENT YEAR 2008-09. 2. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE ASSESSEE HAS BEEN AVOIDING SERVICE OF NOTICE. EARL IER THE NOTICES WERE RECEIVED AND NO ATTENDANCE WAS MADE. NOW, THE ASSE SSEE HAS REFUSED TO ACCEPT THE NOTICE AND THE SAME HAS COME UNSERVED WI TH A REMARK REFUSED. IN VIEW THEREOF, IT WAS CONSIDERED APPROPRIATE TO P ROCEED WITH THE PRESENT APPEAL EX-PARTE QUA THE RESPONDENT-ASSESSEE AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR AND THE MATERIAL AVAILABL E ON RECORD. 3. LD. DR, AT THE OUTSET, CONTENDS THAT THE ASSESSM ENT IN THIS APPEAL IS ON PROTECTIVE BASIS; SUBSTANTIVE ADDITION HAS BEEN MAD E IN THE CASE OF ONE SHRI ITA NO. 708/AHD/2011 DCIT VS. SHRI RAJUBHAI LAKHABHAI BHARWAD AY : 2008-09 2 MANUBHAI NAIK. IN PAST, ON QUERIES FROM THE BENCH, A DETAILED WRITTEN NOTE DATED 17.12.2014 HAS BEEN FILED. A GIST THEREOF IS AS UNDER:- 2. AS MENTIONED IN THE GROUNDS OF APPEAL, THE ADDIT ION MADE ON THE CAPITAL GAINS IN THE CASE OF SHRI MANUBHAI NAIK HAS BEEN CO NFIRMED BY THE LD.CIT(A). IN THIS REGARD, AS DESIRED BY THE HON'BLE BENCH, THE ASSESSING OFFICER WAS ASKED TO STATE THE OUTCOME OF THE APPEA L IF ANY FILED BEFORE THE HON'BLE ITAT. IN RESPONSE THERETO THE ITO, WARD-1(2 )(1), SURAT VIDE LETTER DTD.10.12.2014 HAS STATED AS UNDER:- 'AS FAR AS THE CASE OF SHRI MANUBHAI NAIK IS CONCERN ED, IT IS SUBMITTED THAT THE SAID ASSESSEE IS ASSESSED TO TAX WITH THE ITO, WARD-L(3)(2), SURAT. AS DESIRED, THE RECORDS OF SHRI MANUBHAI NAIK WERE PERUSED IN THE OFFICE OF THE ITO, WARD-1(3)(2), SURAT AND COPIES OF THE RELEVANT ORDERS WERE OBTAINED (COPY OF ORDER S ENCLOSED HEREWITH). FROM THE OFFICE RECORDS OF THE ITO, WARD- L(3)(2), SURAT, IT WAS SEEN THAT IN THE CASE OF SHR MANUBHAI NAIK (A.Y. 2006-07 TO 2008-09), THE HON'BLE ITAT, 'A' BENCH, AHMEDABAD VIDE ORDER BEARING ITA(SS)A NO.308 TO 310/AHD/2011, DT.4.4.2014 HAS RESTORED THE ISSUE TO THE FILE OF THE HON'BLE CIT(A) WITH A D IRECTION TO PASS DE NOVO APPELLATE ORDER IN ACCORDANCE WITH LAW ON MERI TS AS ALSO TO CONSIDER ADDITIONAL EVIDENCES SOUGHT TO BE FILED BY THE SAID ASSESSEE BEFORE THE TRIBUNAL' 3. I SUBMIT HEREWITH PAPER-BOOK (IN DUPLICATE) CONT AINING 37 PAGES, RECEIVED FROM THE INCOME-TAX OFFICER, WARD-2(1), SURAT IN AB OVE CASE FOR KIND PERUSAL AND CONSIDERATION. IT IS CONTENDED THAT UNLESS THE ISSUE OF SUBSTANTI VE ASSESSMENT IS FINALIZED, THE CONSEQUENT ISSUE OF IMPUGNED PROTECT IVE ASSESSMENT CANNOT BE DECIDED. SINCE THE PERTINENT FACTUAL FINDINGS R EMAIN TO BE EXAMINED, IT IS DESIRABLE THAT, FOLLOWING THE SAME COURSE OF ACTION AS DIRECTED BY ITAT IN THE CASE OF SHRI MANUBHAI NAIK, THE ISSUE MAY BE SE T ASIDE AND RESTORED BACK TO THE FILE OF THE LD. CIT(A). 4. WE HAVE HEARD LD. DR, PERUSED THE MATERIAL AVAIL ABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND FORCE IN THE AFORESAID SUBMISSIONS OF THE LD. DR THAT THE IMPUGN ED PROTECTIVE ITA NO. 708/AHD/2011 DCIT VS. SHRI RAJUBHAI LAKHABHAI BHARWAD AY : 2008-09 3 ASSESSMENT SHOULD BE DECIDED ON THE BASIS OF SUBSTA NTIVE ASSESSMENT WHICH IS YET TO BE FINALIZED. THEREFORE, WE RESTORE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO TAKE A VIEW IN ACCORDANCE WITH LAW AF TER THE FINALIZATION OF SUBSTANTIVE ASSESSMENT IN THE CASE OF SHRI MANUBHAI NAIK. ACCORDINGLY, THE REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE S. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 12 TH AUGUST, 2016 AT AHMEDABAD. SD/- SD/- AMARJIT SINGH (ACCOUNTANT MEMBER) R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 12/08/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD