Smt. Damayanti V.Chettiar, Baroda V. The Income tax Officer,Ward-3(1), Baroda

ITA 975/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0070 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2000-2001
• Appeal Filed On: 01-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL R SHAH
• Keywords: Gift; Set aside
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD C BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER) ITA.NO.975/AHD/2010 [ASSTT.YEAR : 2000-2001] DAMAYANTI V. CHETTIAR C-17, MANORATH SOCIETY OPP: AMAR COMPLEX NEW SAMAR ROAD, BARODA. VS. ITO, WARD-3(1) BARODA. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANIL R. SHAH REVENUE BY : SHRI ANILKUMAR O R D E R PER G.D. AGRAWAL, VICE-PRESIDENT: THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, BARODA DATED 07.01.2010 ARISING OUT OF THE ORDER OF THE AS SESSING OFFICER UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 19 61. 2. IN THIS APPEAL BY THE ASSESSEE, THE ONLY GROUND RAISED READS AS UNDER: 1. IN THE CIRCUMSTANCES AND ON THE FACTS OF THE CA SE THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE U/S.68 FOR RS .1,65,000/- IN RESPECT OF VARIOUS GIFTS RECEIVED BY ASSESSEE. 3. AT THE TIME OF HEARING BEFORE US, THE ASSESSEE A LSO SOUGHT FOR ADMISSION OF THE FOLLOWING ADDITIONAL GROUND: 1. THE ITO HAS ERRED IN BOTH IN LAW AND IN FACTS I N RESORTING TO SECTION 148/147 AND REOPENING THE ASSESSMENT. 4. IT IS STATED BY THE LEARNED COUNSEL THAT THE AO REOPENED THE ASSESSMENT UNDER SECTION 147. HOWEVER, COPY OF THE REASONS RE CORDED FOR THE REOPENING OF THE ASSESSMENT WAS NOT SUPPLIED TO THE ASSESSEE DES PITE REQUEST OF THE ASSESSEE. ITA.NO.975/AHD/2010 -2- THE ASSESSEE HAD RAISED GROUND AGAINST THE REOPENIN G OF THE ASSESSMENT BEFORE THE CIT(A), HOWEVER, HE DID NOT ADJUDICATE THE ISSU E. HE THEREFORE REQUESTED FOR ADMISSION OF THE ADDITIONAL GROUND AGAINST THE REOPENING OF THE ASSESSMENT. 5. THE LEARNED DR ON THE OTHER HAND OBJECTED TO THE ADMISSION OF THE ADDITIONAL GROUND. 6. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDE S AND THE FACTS OF THE CASE, WE ARE OF THE OPINION THAT THE ADDITIONAL GRO UND IS PURELY A LEGAL GROUND AND THE SAME WAS ALSO RAISED BEFORE THE CIT(A). TH EREFORE, WE DEEM IT PROPER TO ADMIT THE ADDITIONAL GROUND. 7. COMING TO THE MERIT OF THE ADJUDICATION ON THE A DDITIONAL GROUND, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECI SION OF THE HONBLE APEX COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. V S. ITO, 259 ITR 19 (SC). THE HONBLE APEX COURT HAS LAID DOWN THE FOLLOWING PROCEDURE TO BE FOLLOWED BY THE AO WHEN AN ASSESSMENT IS TO BE REOPENED. WE SEE NO JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER UNDER CHALLENGE. HOWEVER, WE CLARIFY THAT WHEN A NOTICE UNDER SECTIO N 148 OF THE INCOME-TAX ACT IS ISSUED, THE PROPER COURSE OF ACT ION FOR THE NOTICEE IS TO FILE A RETURN AND IF HE SO DESIRES, TO SEEK REA SONS FOR ISSUING NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS, THE NOTICEE IS ENTITLE D TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOU ND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IN THE INSTANT CA SE, AS THE REASONS HAVE BEEN DISCLOSED IN THESE PROCEEDINGS, THE ASSES SING OFFICER HAS TO DISPOSE OF THE OBJECTIONS, IF FILED, BY PASSING A S PEAKING ORDER, BEFORE PROCEEDING WITH THE ASSESSMENT IN RESPECT OF THE AB OVESAID FIVE ASSESSMENT YEARS. IN THE CASE UNDER APPEAL BEFORE US, THE PROCEDURE A S LAID DOWN BY THE HONBLE APEX COURT HAS NOT BEEN FOLLOWED. IN VIEW OF THE A BOVE, WE SET ASIDE THE ORDER OF THE AUTHORITIES BELOW AND RESTORE THE MATTER BAC K TO THE FILE OF THE AO. WE DIRECT HIM TO SUPPLY THE COPY OF THE REASONS RECORD ED FOR THE REOPENING OF THE ASSESSMENT AND THEREAFTER, IF THE ASSESSEE FILES OB JECTION TO THE ISSUANCE OF THE ITA.NO.975/AHD/2010 -3- NOTICE, THE AO WILL PASS A SPEAKING ORDER WITH REGA RD TO THE VALIDITY OF THE REOPENING OF THE ASSESSMENT. IF HE COMES TO A CONC LUSION THAT THE ASSESSMENT WAS VALIDLY REOPENED, HE WILL PROCEED TO MAKE ASSES SMENT AFRESH. WITH THE ABOVE DIRECTION, THE MATTER IS RESTORED BACK TO THE FILE OF THE AO. 8. IN THE RESULT, THE ASSESSEES APPEAL IS DEEMED T O BE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 20 TH AUGUST, 2010. SD/- SD/- (MUKUL KUMAR SHRAWAT) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 20-08-2010 VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD