Smt. Sheth Heena Akshay, Surat V. The Dy.CIT.,Cent.Circle-1, Surat

ITSSA 162/AHD/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 7909 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-12-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 27-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JASBIR S CHOUHAN
• Assessee Lawyers: R B SHAH
• Keywords: Business income
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 162/ AHD/2009 (ASSESSMENT YEAR 2004-05) SHETH HEENA AKSHAY, 24, TRINIDHI APARTMENT, GHOD DOD ROAD, SURAT VS. DCIT, CC-1, SURAT PAN/GIR NO. : AFSPS2981K (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI R. B. SHAH, AR RESPONDENT BY: SHRI JASBIR S CHOUHAN SR. DR DATE OF HEARING: 21.12.2011 DATE OF PRONOUNCEMENT: 30.12.2011 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) II, AHMEDABAD DATED 16.10.2009 FOR THE ASSESSMENT Y EAR 2004-05. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING-OFF ICER IN MAKING ASSESSMENT U/S 143(3) R.W.S 153A OF THE IT. ACT WHE N APPEAL IS PENDING BEFORE INCOME TAX APPELLATE TRIBUNAL FOR TH E SAME ASSESSMENT YEAR.. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFF ICER IN MAKING THE ADDITION OF RS. 20,27,2677- AS BUSINESS INCOME/ OTHER SOURCES I.T.A.NO. 162 /AHD/2009 2 INSTEAD OF LONG TERM CAPITAL GAIN/LOSS BY ASSESSEE. THE LEARNED CIT(A) HAS CONFIRMED THE ADDITION ON THE GROUND THA T CIT(A) IN HIS ORDER DATED 31.10.2007 HAS HELD THE TRANSACTION OF SALE OF SHARES AS BOGUS. ASSESSEE HAS PREFERRED THE APPEAL AGAINST THIS ORDER OF THE CIT(A) BEFORE HONOURABLE ITAT. 3. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITIO N MADE BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME-TAX (APPEALS) MAY PLEASE BE DELETED. 4. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE AP PEAL. 2. IT IS SUBMITTED BY THE LD. A.R. THAT GROUND NO.1 IS NOT PRESSED AND ACCORDINGLY, GROUND NO.1 OF THE ASSESSEE IS REJECTE D AS NOT PRESSED. 3. REGARDING GROUND NO.2, IT WAS SUITED BY THE LD. A.R. OF THE ASSESSEE THAT THE IMPUGNED ASSESSMENT IS U/S 143(3) READ WITH SECTION 153A OF THE INCOME TAX ACT, 1961. HE ALSO SUBMITTE D THAT PRIOR TO THIS, REGULAR ASSESSMENT WAS FRAMED FOR THIS ASSESSMENT Y EAR AND IN THAT ASSESSMENT ALSO, SIMILAR ADDITION WAS MADE BY THE A .O. AND AGAINST THAT ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) BUT LD. CIT(A) REJECTED THE APPEAL OF THE ASSESSEE AND THEREAFTER, THE ASSESSEE PREFERRED 2 ND APPEAL BEFORE THE TRIBUNAL IN I.T.A.NO. 118/AHD/20 08 DATED 04.06.2010 AND THE ISSUE WAS DECIDED BY THE TRIBUNA L IN FAVOUR OF THE ASSESSEE AND THE APPEAL OF THE ASSESSEE WAS ALLOWED . HE SUBMITTED A COPY OF THIS TRIBUNAL DECISION. HE CONTENDED THAT THIS ISSUE IS NOW SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE T RIBUNAL DECISION IN THE ASSESSEES OWN CASE FOR THE SAME ASSESSMENT YEAR AN D, THEREFORE, IN THE PRESENT PROCEEDINGS ALSO THIS ADDITION SHOULD BE DE LETED. 4. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. D.R . THAT IN THE PRESENT CASE, SEARCH ACTION WAS CARRIED OUT ON 16.03.2007 A ND AS PER THE PROVISIONS OF 2 ND PROVISO TO SECTION 153A, ALL THE PROCEEDINGS OF I.T.A.NO. 162 /AHD/2009 3 ASSESSMENT AND REASSESSMENT RELATING TO NAY ASSESSM ENT YEAR FALLING WITHIN THE PERIOD OF 6 ASSESSMENT YEARS REFERRED TO IN SECTION 153A SHALL ABATE. IT IS SUBMITTED THAT IN VIEW OF THIS, THE ORIGINAL ASSESSMENT PROCEEDINGS WERE ABATED AND THERE WAS NO REASON FOR THE LD. CIT(A) OR FOR THE TRIBUNAL TO PASS ANY ORDER WITH REGARD TO S UCH ABATED PROCEEDINGS AND, THEREFORE, THIS TRIBUNAL ORDER SHOULD NOT BE C ONSIDERED AND THE ISSUE SHOULD BE DECIDED AFRESH ON MERIT. 5. IN THE REJOINDER, THE LD. A.R. SUBMITTED COPY OF THE PAPER BOOK INDEX FILE BEFORE THE TRIBUNAL IN THE COURSE OF HEA RING OF APPEAL IN I.T.A.NO. 118/AHD/2008. IT IS SUBMITTED THAT ON PA GES 45-46 OF THE PAPER BOOK THE ASSESSEE HAS DULY FURNISHED THE COPY OF AS SESSMENT ORDER U/S 143(3) READ WITH SECTION 153A OF THE INCOME TAX ACT , 1961 DATED 30.12.2008 WHICH IS THE IMPUGNED ASSESSMENT ORDER A ND HENCE, THIS FACT WAS VERY MUCH BROUGHT ON RECORD BY THE ASSESSEE BEF ORE THE TRIBUNAL THAT SUBSEQUENTLY, ASSESSMENT HAD BEEN COMPLETED U/S 143 (3) READ WITH SECTION 153A OF THE INCOME TAX ACT, 1961 AND HENCE, THE TRIBUNAL WAS AWARE ABOUT THE SEARCH AND SUBSEQUENT ASSESSMENT AN D, THEREFORE, THE TRIBUNAL ORDER SHOULD BE FOLLOWED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE TRIBUNAL DECISION CITED BY THE LD. A.R. OF THE ASSE SSEE. WE FIND THAT AS PER THE 2 ND PROVISO TO SECTION 153A, IT IS PROVIDED THAT THE A SSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YE AR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN SUB-S ECTION (1) OF SECTION 153A PENDING ON THE DATE OF CLOSE OF SEARCH U/S 132 SHALL ABATE. HENCE, AFTER THE CARRYING OUT OF SEARCH, LD. CIT(A) SHOULD NOT HAVE PASSED ANY ORDER WITH REGARD TO THE OLD ASSESSMENT ORDER AND H ENCE, SUBSEQUENT I.T.A.NO. 162 /AHD/2009 4 TRIBUNAL ORDER CANNOT BE CONSIDERED AS A BINDING PR ECEDENT AND WE, SHOULD DECIDE THE ISSUE ON MERIT. WE FIND THAT LD. D.R. COULD NOT POINT OUT ANY DEFECT IN THE TRIBUNAL ORDER AND NO REASON COULD BE POINTED OUT BY HIM AS TO WHY THE PRESENT BENCH SHOULD TAKE A DIFFE RENT VIEW. AS PER THIS ORDER, THE TRIBUNAL HAS FOLLOWED THE JUDGEMENT OF H ONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF DCIT VS ROHINI BUILDE RS AS REPORTED IN 256 ITSR 360 AND CIT VS PRAGATI COOPERATIVE BANK AS REP ORTED IN 278 ITR 176 (GUJ.) AND THIS COULD NOT BE SHOWN BY THE LD. D .R. THAT HOW THESE TWO JUDGMENTS OF HONBLE GUJARAT HIGH COURT ARE NOT APPLICABLE IN THE PRESENT CASE AND HENCE, WHILE DECIDING THE ISSUE AF RESH ON MERIT, WE DO NOT FIND ANY REASON TO TAKE A DIFFERENT VIEW IN THE PRESENT CASE AND, THEREFORE, WE HOLD THAT THE INCOME IN DISPUTE SHOUL D BE BROUGHT TO TAX AS CAPITAL GAIN AS DECLARED BY THE ASSESSEE. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (G. C. GUPTA) (A. K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER SP ORDER PRONOUNCED ON 30.12.2011 SD./- SD./- (G.C.GUPTA)VP (B.P.JAIN)AM 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 I.T.A.NO. 162 /AHD/2009 5 1. DATE OF DICTATION 22/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23/12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.23/12 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 30/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.30/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30/12/2011 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. ..