Shri Jivarajbhai H.Balar, Surat V. The Dy.CIT.,Cent.Circle-1, Surat

ITSSA 802/AHD/2010

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8306 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-07-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 29-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: J P SHAH

Judgement Text

, , , , A , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .% $% % $% % $% % $%, , , , &' ( &' ( &' ( &' ( & ' & ' & ' & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER) IT(SS)A NO.802 TO 806 /AHD/2010 [ASSTT. YEAR : 2004-2005 TO 2008-2009] SHRI JIVRAJBHAI H. BALAR 59, KANTARESHWAR SOCIETY KATARGAM SURAT 395 004. PAN : ABOPB 8649 M /VS. THE DCIT CENT.CIR.1 SURAT. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ./ 0 1 &/ ASSESSEE BY : SHRI J.P. SHAH ( 0 1 &/ REVENUE BY : SHRI RAHUL KUMAR 3 0 /4'/ DATE OF HEARING : 5 TH JULY, 2012 5%6 0 /4'/ DATE OF PRONOUNCEMENT : 03-08-2012 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE ARE ASSESSEES APPEALS AGAINST THE ORDERS OF THE CIT(A)-II, AHMEDABAD FOR THE ASSESSMENT YEARS 2004-2005 TO 2008-2009. 2. THE FIRST GROUND OF THE ASSESSEE IS IDENTICAL IN ALL THESE APPEALS PREFERRED BY THE ASSESSEE, WHICH IS REPRODUCED BELO W: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL OF THE APPELLANT U/S.249(4)(A) OF THE ACT ON THE GROUND OF NON-PAYMENT OF FULL TAX ON THE RETURNED INCOME AT T HE TIME OF FILING THE APPEAL BEFORE THE LD.CIT(A) THOUGH SUBSEQUENT T O THE FILING OF THE APPEAL BEFORE THE LD.CITR(A), AND BEFORE THE DA TE OF HEARING OF IT(SS)A NO.802 TO 806 /AHD/2010 -2- APPEAL, SUCH FULL TAX ON THE RETURNED INCOME WAS PA ID BY THE APPELLANT. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE DUE TO SERIOUS FINANCIAL DIFFICULTY COULD NOT DEPOS IT FULL TAX ON RETURNED INCOME AT THE FILING OF APPEAL BEFORE THE LEARNED C IT(A). HE SUBMITTED THAT THE ASSESSEE SUBSEQUENT TO THE FILING OF THE A PPEAL BEFORE THE CIT(A) AND BEFORE THE DATE OF HEARING BEFORE THE CIT(A) HA S PAID SUCH FULL TAX ON THE RETURNED INCOME. THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE BY INVOKING THE PROVISIONS OF SECTION 249(4)(A) OF THE I.T.ACT. 1961 AND HAS NOT CONSIDERED THE ISSUES BEF ORE HIM ON MERIT AND THE APPEAL WAS DISMISSED AS NOT MAINTAINABLE. HE S UBMITTED THAT IN THE LATEST JUDGMENT OF THE ITAT, HYDERABAD BENCH A IN THE CASE OF SMT.BANU BEGUM VS. DCIT, IN ITA NO.2075/HYD/2011 FO R THE A.Y.2008-2009 DATED 30.4.2012 WHEREIN THE ASSESSEE HAS PAID THE ADMITTED TAX ON RETURNED INCOME ONLY AT THE TIME OF FILING OF THE APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL AFTER DISCUSSI NG THE RELEVANT CASE LAWS HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSE E AND HAS DIRECTED THE CIT(A) TO ADJUDICATE THE APPEAL BEFORE HIM ON MERIT . THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL OF T HE ASSESSEE. HE RELIED ON THE ORDERS OF THE AO AND THE CIT(A). HE SUBMITT ED THAT THE ASSESSEE WAS OBLIGED TO DEPOSIT UNDISPUTED TAX BEFORE FILING OF THE APPEAL BEFORE THE CIT(A), AND THEREFORE, THE CIT(A) WAS HAVING NO DISCRETION AND POWER TO ADMIT THE APPEAL OF THE ASSESSEE. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND CIT(A). WE HAVE ALSO PERUSED THE ORD ER OF THE HYDERABAD TRIBUNAL RELIED ON BY THE LEARNED COUNSEL OF THE AS SESSEE IN SMT. BANU BEGUM (SUPRA). WE FIND THAT THE FACTS OF THE CASE OF THE PRESENT ASSESSEE IT(SS)A NO.802 TO 806 /AHD/2010 -3- BEFORE US ARE SLIGHTLY BETTER THAN THE FACTS OF THE CASE IN THE CASE OF SMT.BANU BEGUM (SUPRA), IN AS MUCH AS THE ASSESSEE BEFORE US HAS DEPOSITED THE UNDISPUTED TAX ON RETURNED INCOME BEF ORE THE DATE OF HEARING OF THE APPEAL BY THE CIT(A). THE ISSUE BEF ORE US BEING COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE HYDERABAD TRIBUNAL IN SMT.BANU BEGUM (SUPRA), WE BEING IN AGREEMENT WITH THE RATIO OF THE DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL, DE CIDE THE ISSUE IN FAVOUR OF THE ASSESSEE, AND ACCORDINGLY THE ORDER O F THE CIT(A) IN ALL THESE APPEALS ARE SET ASIDE AND RESTORED TO THE FIL E OF THE CIT(A) WITH DIRECTION TO ADMIT THE SAME AND ADJUDICATE THE APPE ALS BEFORE HIM ON MERIT AFTER ALLOWING REASONABLE OPPORTUNITY OF HEAR ING TO BOTH THE PARTIES AND DECIDE THE APPEALS AFRESH IN ACCORDANCE WITH LA W. SINCE WE HAVE RESTORED THE ORDERS OF THE CIT(A) TO HIS FILE FOR F RESH DECISION, WE ARE NOT ADJUDICATING THE ASSESSEES OTHER GROUNDS OF APPEAL BEFORE US. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( #.% $% /A.MOHAN ALANKAMONY) &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD