Shri Devendranath G. Chaturvedi, Ahmedabad V. The ACIT., Cent.Circle-2, Ahmedabad

ITSSA 168/AHD/2006

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7843 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-01-2012
• Assessment Year: misc
• Appeal Filed On: 05-07-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGAINST COMMON
• Assessee Lawyers: AND OTHER
• Keywords: Principle of natural justice; Question of law; Block assessment

Judgement Text

NO. IT(SS) A.168 & 201/A/2006 BLOCK PERIOD 1-4-90 TO 7-3-2001. 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHM EDABAD (BEFORE SHRI G.C. GUPTA VICE PRESIDENT AND A. L. GEHLOT A.M.) I.T.(SS) A.NO .168/AHD/2006 (BLOCK PERIOD 1-4-90 TO 7-3-2001) SHRI DEVENDRANATH G. CHATURVEDI, BUNGALOW NO.11/13, NIRANT PARK SOCIETY PART-1, OPP. SUN-N STEP CLUB, THALTEJ, AHMEDABAD. (APPELLANT) VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIR.1(2), 3 RD FLOOR AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD. (RESPONDENT) I.T.(SS) A.NO.201/AHD/2006 (BLOCK PERIOD 1-4-90 TO 7-3-2001) THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIR.1(2), 3 RD FLOOR AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD. (APPELLANT) VS. SHRI DEVENDRANATH G. CHATURVEDI, BUNGALOW NO.11/13, NIRANT PARK SOCIETY PART-1, OPP. SUN-N STEP CLUB, THALTEJ, AHMEDABAD. (RESPONDENT) PAN: ON BEHALF OF ASSESSEE : SHRI A.L.THAKKAR. ON BEHALF OF REVENUE. : SHRI RAVINDRAKUMAR CIT DR. ( )/ ORDER DATE OF HEARING : 9-1-20112 DATE OF PRONOUNCEMENT : 13-1-2012 PER: SHRI A.L. GEHLOT, A.M. NO. IT(SS) A.168 & 201/A/2006 BLOCK PERIOD 1-4-90 TO 7-3-2001. 2 THESE ARE CROSS APPEALS ONE FILED BY THE ASSESSEE AND THE OTHER BY THE REVENUE AGAINST COMMON ORDER PASSED BY LD. CIT (A) -III, AHMEDABAD IN APPEAL NO. CIT (A)-III/CC 2(1)/91/04-05 DATED 31-3-2006 FO R THE BLOCK PERIOD 1-4-1990 TO 7-3-2001. 2. THE ASSESSEE ORIGINALLY RAISED AS MANY AS 25 GRO UNDS OF APPEAL WHEREAS THE REVENUE HAS RAISED 17 GROUNDS OF THEIR APPEALS. 3. THE ASSESSEE FILED ADDITIONAL GROUND WHICH REA DS AS UNDER:- THE APPELLANT SUBMITS THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN COMPLETING THE ASSESSMENT WITHOUT ISSUING THE NOTIC E U/S. 143(2) OF THE INCOME TAX ACT, 1961 AND HENCE THE ORDER PASSED U/S . 158BC OF THE INCOME TAX ACT, 1961 IS ILLEGAL AND VOID AB-INITO AND AS S UCH THE SAME IS LIABLE TO BE QUASHED. 4. THE LD. AR SUBMITTED THAT THE BLOCK ASSESSMENT W AS COMPLETED WITHOUT ISSUING THE NOTICE U/S/143(2) OF THE ACT. HE FURTHE R SUBMITTED THAT THE ASSESSEE FILED AN APPLICATION FOR OBTAINING INFORMATION UNDER RIGH T TO INFORMATION ACT DATED 17-6- 2010 WHEREIN, IN REPLY TO THAT THE AO STATED THAT T HE CASE RECORDS WERE VERIFIED AND INFORMATION REQUESTED IS NOT FOUND ON RECORD AVAILA BLE IN THE OFFICE OF THE AO. THE LD. AR SUBMITTED THAT THE ADDITIONAL GROUND RAISED IN THE APPEAL IS A LEGAL GROUND AND GOES TO THE ROOT OF THE MATTER. HE SUBMITTED TH AT SUCH LEGAL GROUND IS ADMISSIBLE IN VIEW OF THE LAW LAID DOWN BY THE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO LTD. VS. CIT (1999) 157 CTR (SC) 249. 5. THE LD. DR ON THE OTHER HAND OBJECTED FOR ADMISS ION OF THE ADDITIONAL GROUND STATING THAT RELEVANT FACTS OF THE GROUNDS A RE SUBJECT TO VERIFICATION NO. IT(SS) A.168 & 201/A/2006 BLOCK PERIOD 1-4-90 TO 7-3-2001. 3 THEREFORE, IN THE LIGHT OF JUDGMENTS OF THE APEX CO URT ITSELF CITED BY THE LD. AR SUCH GROUND CANNOT BE ADMITTED AT THIS STAGE. 6. WE HEARD THE LD. REPRESENTATIVES AND PERUSED THE RECORDS AND HAVE GONE THROUGH THE DECISIONS CITED. AT THE TIME OF HEARING IT WAS SPECIFICALLY POINTED OUT BY THE BENCH THAT THESE BOTH APPEALS ARE HEARD FOR DECIDING WHETHER ADDITIONAL GROUND RAISED BY THE ASSESSEE IS TO BE ADMITTED OR TO BE REJECTED, AND IN CASE OF ADMISSION OF THE ADDITIONAL GROUND, THE SAME WILL B E DECIDED ACCORDINGLY. THEREFORE, THIS ORDER IS LIMITED ONLY TO THE GROUND FOR ADMISSION OF ADDITIONAL GROUND RAISED BY THE ASSESSEE AND DECISION THEREON. WE DID NOT EXPRESS ANY OPINION ON THE ORIGINAL GROUNDS RAISED IN CROSS APP EALS. 7. THE BRIEF FACTS OF THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT 229 ITR 383 (SC) THAT IN ASSESSMENT YEAR 1978-79 THE AS SESSEE DEPOSITED CERTAIN FUNDS WITH BANK, THE INTEREST RECEIVED FROM THE BAN K WAS OFFERED BY THE ASSESSEE FOR TAXATION AND ASSESSMENT WAS COMPLETED. THE ASSE SSEE FILED APPEAL BEFORE THE CIT (A) TAKING NUMBER OF GROUNDS CHALLENGING THE AS SESSMENT ORDER. HOWEVER, THE ASSESSEE DID NOT TAKE ANY GROUND IN RESPECT OF INCL USION OF THIS INTEREST AMOUNT OF RS.22,84,994/-. THE ASSESSEE FILED FURTHER APPEAL A GAINST THE ORDER OF CIT (A) BEFORE THE TRIBUNAL AND THE INCLUSION OF THE SAID A MOUNT OF RS.22,84,994/- WAS NOT OBJECTED EVEN IN THE GROUNDS OF APPEAL AS ORIGINALL Y FILED BEFORE THE TRIBUNAL. HOWEVER, BY AS FORWARDING LETTER THE ASSESSEE HAS R AISED ADDITIONAL GROUND THAT THE SUM OF RS.22,84,994/- DETECTED FROM THE STATEMENT O F EXPENDITURE DURING CONSTRUCTION CANNOT BE INCLUDED IN TOTAL INCOME. IT WAS POINTED OUT THAT ON ADMISSION (ERRONEOUS) NO INCOME OF RS.22,84,994/- C AN BE INCLUDED IN TOTAL INCOME THE AUTHORITY BELOW AND FAILED IN THEIR DUTY IN NOT CHECKING THE FACTS AND EVIDENCE ON RECORD AND MECHANICALLY INCLUDING RS.22,84,994/- IN THE TOTAL INCOME. THE NO. IT(SS) A.168 & 201/A/2006 BLOCK PERIOD 1-4-90 TO 7-3-2001. 4 TRIBUNAL HAS DECLINED TO ENTERTAIN THE ADDITIONAL G ROUND RAISED BY THE ASSESSEE. THE APEX COURT AFTER DETAILED DISCUSSION ON POWER OF TH E TRIBUNAL U/S. 254 HELD THAT THE TRIBUNAL HAVE THE DISCRETION TO ALLOW OR NOT TO ALLOW A NEW GROUND TO BE RAISED. BUT WHETHER THE TRIBUNAL IS ONLY REQUIRE TO CONSIDE R A QUESTION OF LAW ARISING FROM THE FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PRO CEEDINGS, SUCH QUESTION SHOULD BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CON SIDER THAT QUESTION IN ORDER TO CORRECTLY ASSESS THE TAX LIABILITY OF AN ASSESSEE. IN THE LIGHT OF THE LAW LAID DOWN BY THE APEX COURT IN THE CASE OF NATIONAL THERMAL POWE R CO. LTD. VS. CIT (SUPRA). WE DO NOT FIND SUBSTANCE IN THE SUBMISSION OF THE L D. DR THAT THE ADDITIONAL GROUND RAISED REQUIRES VERIFICATION OF FACTS THEREF ORE NOT IN ACCORDANCE WITH THE JUDGMENT OF THE APEX COURT. WE FIND THAT THE APEX C OURT HELD THAT WHAT THE TRIBUNAL IS REQUIRE TO CONSIDER A QUESTION OF LAW ARISING FROM THE FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS. NOWHERE IT IS STATED THAT THE RELATED FACTS ARE READILY TO BE AVAILABLE BEFORE THE TRIBUNAL OR FACTS ON RECORD IN THE ASSESSMENT PROCEEDINGS CANNOT BE SUBJECT TO VERIFICATION. THES E FACTS CAN BE SUBJECT TO VERIFICATION. THE LAW LAID DOWN IS THAT FACTS WHICH MUST ON RECORD IN THE ASSESSMENT PROCEEDINGS. IN THE CASE UNDER CONSIDER ATION WHETHER THE AO HAD ISSUED NOTICE U/S. 143(2) WHILE MAKING BLOCK ASSESS MENT OR NOT IS A FACT WHICH IS ON RECORD IN THE ASSESSMENT PROCEEDINGS. MERELY NON MENTIONING SUCH FACTS EITHER BY THE AO IN HIS ORDER OR BY THE CIT (A) IN THEIR O RDER DOES NOT AMOUNT TO THE THAT THE FACT WAS NOT ON RECORD IN THE ASSESSMENT PROCEE DINGS. IN THE LIGHT OF ABOVE DISCUSSION, WE DO NOT AGREE WITH THE CONTENTION OF THE LD. D.R. AFTER CONSIDERING THE TOTALITY OF THE CASE WE ADMIT THE ADDITIONAL GR OUND FILED BY THE ASSESSEE. HOWEVER, WE NOTICE THAT THE REVENUE DID NOT GET OCC ASION TO EXAMINE THE ISSUE IN DETAIL WHICH HAS BEEN RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUND. CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE, WE THINK PROPER TO SEND BACK THIS MATTER TO THE FILE OF CIT (A) WITH A DIRECTION TO RECORD RELEVANT FACT S OF THE ADDITIONAL GROUND AND NO. IT(SS) A.168 & 201/A/2006 BLOCK PERIOD 1-4-90 TO 7-3-2001. 5 DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER PROVID ING THE REASONABLE OPPORTUNITY OF HEARING TO BOTH THE SIDES. 8. THESE CROSS APPEALS HAVE BEEN DECIDED ON LEGAL G ROUND RAISED BY THE ASSESSEE IN THE FORM OF ADDITIONAL GROUND. THEREFOR E, WE DO NOT EXPRESS ANY OPINION ON THE ORIGINAL GROUNDS RAISED IN BOTH THE APPEALS. 9. IN THE RESULT BOTH THE APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 13 - 01 - 2012. SD/- SD/- (G. C. GUPTA) (A. L.GEHLOT) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-III, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. NO. IT(SS) A.168 & 201/A/2006 BLOCK PERIOD 1-4-90 TO 7-3-2001. 6 1.DATE OF DICTATION 9 - 1 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 10 / 1 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 12 - 1 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 13 - 1 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 13 -1 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13 - 1 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..