Shri Ramesh D.Patel, Anand V. The ACIT.,Cent.Circle-1, Baroda

ITSSA 119/AHD/2009

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8340 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-08-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 14-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K GUPTA
• Assessee Lawyers: A L THAKKAR
• Keywords: Opportunity of being heard
• Section: 143(3); 133A; 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.(SS). NO. 119, 120/ AHD/2009 (ASSESSMENT YEAR 2005-06 & 2006-07) SHRI RAMESH D. PATEL, PROP. OF YOGI INVESTMENTS, 1 ST FLOOR, MADHAV CHAMBERS, OPP. PEOPLES PARK, ANAND VS. ACIT, CC-1, BARODA PAN/GIR NO. : ADUPP4122B (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI A.L. THAKKAR, AR RESPONDENT BY: SHRI S K GUPTA, CIT, DR DATE OF HEARING: 24.08.2012 DATE OF PRONOUNCEMENT: 21.09.2012 O R D E R PER SHRI A. K. GARODIA, AM:- BOTH THESE APPEALS ARE ASSESSEES APPEALS DIRECTED AGAINST TWO SEPARATE ORDERS OF LD. CIT(A) IV, AHMEDABAD BOTH DA TED 18.03.2009 FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07. BOTH TH ESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED BY THE ASSESSEE IN BOTH THESE APPEALS ARE IDENTICAL AND HENCE, WE REPRODUCE GROUNDS FORM I.T. (SS) NO.119/AHD/2009 FOR THE ASSESSMENT YEAR 2005-06: THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN CONFIRMING THE ORDER PASSED BY THE ASSESSING OFFICE R U/S.153(B) I.T.A.NO.119,120 /AHD/2009 2 RWS.143(3) OF THE I.T. ACT, 1961 EVEN THOUGH THE SA ME IS ILLEGAL AND BAD IN LAW. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OU GHT TO HAVE CONSIDERED THE FACT THAT A SURVEY OPERATIONS U/S.13 3A OF THE ACT TOOK PLACE AT THE BUSINESS PREMISES OF THE APPELLAN T ON 19.01.2006 HENCE THE ORDER PASSED U/S.153A(B) RWS.143(3) OF TH E ACT BY THE A.O. IS BAD IN LAW AND THE ASSESSMENT SO MADE DESER VES TO BE QUASHED. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN NOT ADMITTING THE ADDITIONAL GROUNDS OF APPEAL FILE D BY THE APPELLANT CHALLENGING THE LEGALITY OF THE ASSESSMEN T ORDER PASSED U/S.143(3) R.W.S.!53A(B) OF THE ACT, AS THERE WAS S URVEY OPERATIONS AND NOT A SEARCH. 4. THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ERRED IN NOT ADJUDICATING THE GROUND NO.2 RAISED BY THE APPELLANT STATING HAT THE A.O. HAS ERRED IN LAW AND ON FACTS IN NOT ALLOWING SET OFF OF THE ADDITION MADE IN EARLIER YEARS AS UN DISCLOSED INCOME. 3. REGARDING ASSESSMENT YEAR 2005-06, IT WAS SUBMIT TED BY THE LD. A.R. THAT THE ASSESSMENT ORDER IS DATED 14.08.2008. IT IS FURTHER SUBMITTED THAT IN THE PRESENT CASE, NO SEARCH WAS C ARRIED OUT AND SURVEY ACTION HAS TAKEN PLACE U/S 133A ON 19.01.2006. IT IS FURTHER SUBMITTED THAT EVEN IF IT IS HELD THAT THE ASSESSMENT IS COMP LETED U/S 143(3) AGAINST ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE U/S 139(1) BY IGNORING THE RETURN OF INCOME FILED BY THE ASSESSEE U/S 153A, TH E ASSESSMENT ORDER IS TIME BARRED BECAUSE AS PER THE PROVISION OF SECTION 153(1)(A), THE ASSESSMENT HAS TO BE COMPLETED WITHIN TWO YEARS FRO M THE END OF THE ASSESSMENT YEAR IN WHICH THE INCOME WAS FIRST ASSES SABLE. HE FURTHER SUBMITTED THAT AS PER THIS, THE ASSESSMENT WAS TIME BARRED ON 31.03.2008 AND, THEREFORE THIS ASSESSMENT ORDER DATED 14.08.20 08 IS TIME BARRED. REGARDING ASSESSMENT YEAR 2006-07, IT WAS SUBMITTED THAT THE RETURN WAS FILED IN THE MONTH OF MAY 2007 AND HE SUBMITTED A P HOTOCOPY OF THE RETURN OF INCOME FILED BY THE ASSESSEE. NOTICE U/S 143(2) WAS ISSUED BY I.T.A.NO.119,120 /AHD/2009 3 THE A.O. ON 21.07.2008 AS NOTED BY THE A.O. IN PARA 4 OF THE ASSESSMENT ORDER. HE AGREED THAT UNDER THESE FACTS, ASSESSMEN T ORDER PASSED BY THE A.O. HAS TO BE ACCEPTED AS VALID BECAUSE NOTICE U/S 143(2) WAS ISSUED WITHIN TIME. AS PER THE SUBMISSION OF THE LD. D.R. , IN VIEW OF SECTION 292B, WRONG MENTION OF SECTION IN THE ASSESSMENT OR DER DOES NOT INVALIDATE THE ASSESSMENT ORDER. IT IS SUBMITTED T HAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR AFRESH DECISION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. AS PER THE ABOVE DISCUSSION, WE FIND FORCE IN THE SUBMISSION O F THE LD. A.R. THAT THE ASSESSMENT ORDER FRAMED BY THE A.O. FOR ASSESSMENT YEAR 2005-06 IS BARRED BY LIMITATION AS PER THE PROVISIONS OF SECTI ON 153(1)(A) AND HENCE, THE SAME IS ANNULLED AND AS A CONSEQUENCE, THE AMOU NT OF INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FI LED ON 21.10.2005 U/S 139(1) ATRS.5,80,553/- SHOULD BE ACCEPTED AS ASSESS ED INCOME FOR THIS YEAR. FOR THE ASSESSMENT YEAR 2006-07, WE FIND THA T THE ASSESSMENT ORDER FRAMED BY THE A.O. HAS TO BE ACCEPTED AS VALID AND CORRECT BECAUSE AS PER SECTION 292B, AGAINST THE ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE IN MAY 2007, THIS ASSESSMENT IS NOT U/S 153A BUT U/ S 143(3) . WITH THESE OBSERVATIONS, WE SET ASIDE THE ORDER OF LD. CIT(A) FOR ASSESSMENT YEAR 2006-07 AND RESTORE THE MATTER BACK TO HIS FILE FOR AFRESH DECISION ON THE BASIS OF ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE U/S 139(1) IN MAY 2007. HE SHOULD PASS NECESSARY ORDER AS PER LAW IN THE LIGHT OF ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. I.T.A.NO.119,120 /AHD/2009 4 5. IN THE RESULT, APPEAL OF THE ASSESSEE FOR ASSESS MENT YEAR 2005-06 IS ALLOWED WHEREAS FOR THE ASSESSMENT YEAR 2006-07 IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 12/09/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13/09/12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 21/09/2012 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.21/9/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21/09/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .