Smt. Taraben Bhikhkabhai Patel, Gandhinagar V. The Income Tax Officer, Ward-4, Gandhinagar

MA 105/AHD/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5160 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 11-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER MISC. APPLICATION NO.105/AHD/2016 IN ./ ITA.NO.2655/AHD/2015 / ASSTT. YEAR: 2007-2008 S MT .TARABEN BHIKHABHAI PATEL NAVO VAS, VILLAGE KOTHA TAL. KALOL, DIST. GANDHINAGAR. PAN : BHOPP 4310 C. VS ITO, WARD - 4 GANDHINAGAR. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI TUSHAR P. HEMANI, AR REVENUE BY : SHRI JAMESH KURIAN, AR / DATE OF HEARING : 20/01/2017 / DATE OF PRONOUNCEMENT: 20/01/2017 $%/ O R D E R PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF THE ASSESSEE POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRI BUNAL DATED 1.1.2016 PASSED IN ITA NO.2655/AHD/2015. 2. WHILE TAKING ME THROUGH THE RECORD, THE LD.COUNS EL FOR THE ASSESSEE CONTENDED THAT ADDITION IN THE HANDS OF THE ASSESSE E WAS MADE WITH THE AID OF SECTION 68 OF THE INCOME TAX ACT, 1961. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD.CIT(A), IT WAS POINTED TH AT THERE IS SOME OPENING BALANCE WHICH COULD NOT BE ADDED IN THE ASSESSMENT ORDER. THE LD.CIT(A) HAS MADE AN OBSERVATION TO THIS EFFECT AND ALSO MADE AN OBSERVATION THAT THIS ISSUE COULD BE INVESTIGATED IN THE PRECEDING ASSESSMENT Y EAR. HOWEVER, IN THE CONCLUSION, THE LD.CIT(A) HAS ULTIMATELY DISMISSED THE APPEAL. MA NO.105/AHD/2016 2 3. ON APPEAL TO THE TRIBUNAL, THE ISSUES HAVE BEEN SET ASIDE TO THE AO FOR DE NOVO EXAMINATION. THE GRIEVANCE OF THE ASSESSEE IN THE MA IS THAT THE ADDITION TO THE EXTENT OF OPENING BALANCE OUGHT NOT TO HAVE BEEN MADE AND OUGHT TO HAVE BEEN DELETED AT THE END OF THE TRIBUN AL INSTEAD OF SETTING ASIDE THE ISSUE TO THE AO. 4. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTAN CES, I AM OF THE VIEW THAT ONCE THE TRIBUNAL HAS SET ASIDE ALL ISSUES TO THE AO FOR RE-ADJUDICATION THERE COULD NOT BE ANY JUSTIFICATION TO SEGREGATE T HE ISSUE AND DELETE THE ALLEGED OPENING BALANCE, MORE SO, IT COULD NOT BE T ERMED AS AN APPARENT ERROR, BECAUSE IT HAS BEEN LEFT TO THE DISCRETION OF THE A O TO CONSIDER IT ON MERIT IN THE SET ASIDE PROCEEDINGS. THE LD.COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE LD.CIT(A) HAS GIVEN A DIRECTION THAT THE ALLEGED OP ENING BALANCE OUGHT TO BE INVESTIGATED IN THE PRECEDING ASSESSMENT YEAR. THE TRIBUNAL SHOULD HAVE DEALT WITH THIS LIMB OF LITIGATION AND SHOULD HAVE GIVEN A SPECIFIC FINDING. ON DUE CONSIDERATION OF ALL THESE ASPECTS, I AM OF THE VIEW THAT ONCE BOTH THE ORDERS HAVE BEEN SET ASIDE BY THE TRIBUNAL AND ISSU ES HAVE BEEN RESTORED TO THE ASSESSING OFFICER, THEN EVERYTHING WILL BE OPEN BEFORE THE AO FOR CONSIDERATION IN THE SET ASIDE ASSESSMENT PROCEEDIN GS. 5. IN THE RESULT MISC. APPLICATION OF THE ASSESSEE IS DISPOSED OF AS OBSERVED ABOVE. ORDER PRONOUNCED IN THE COURT ON 20 TH JANUARY, 2017 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 20/01/2017