The ITO, Ward-9(1), Surat V. Falguniben Chetankumar Patel, Surat

MA 122/AHD/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0706 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 02-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Reason to believe
• Section: 143(3)

Judgement Text

, , , , , , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI G.C.GUPTA, VICE-PRESIDENT AND SHRI B.P. JAIN, ACCOUNTANT MEMBER 1. MA NO.122/AHD/2012 (IN ./ IN I.T.A.NO.222/AHD/2008 FOR A.Y. 2004-05) 2. MA NO.123/AHD/2012 (IN ./ IN I.T.A.NO.2232/AHD/2008 FOR A.Y.2004-05) 1. INCOME TAX OFFICER WARD-9(1) SURAT 2. DO- / VS. 1. SMT.FALGUNIBEN CHETANKUMAR PATEL A-11, TRIKAM NAGAR SOCIETY NO.1 L.H.ROAD, SURAT PAN ADGPP 4059H 2. SHRI CHETANBHAI PRAHALADBHAI PATEL,HUF A-11, TRIKAM NAGAR SOCIETY NO.1 L.H.ROAD, SURAT PAN AACHC 8118 B ( / // / APPLICANTS ) .. ( / RESPONDENT ) / APPLICANTS BY : SHRI K.C. MATHEWS ! / RESPONDENT BY : SHRI M.J. SHAH '#$ ! %&' / / / / DATE OF HEARING : 20/09/2013 ()* ! %&' / DATE OF PRONOUNCEMENT : 20/09/2013 + / O R D E R PER SHRI B.P. JAIN, ACCOUNTANT MEMBER : BY THESE TWO MISCELLANEOUS APPLICATIONS, IN THE C ASE OF TWO DIFFERENST ASSESSEES, THE REVENUE HAS REQUESTED FO R RECALLING THE ORDER DATED 17/02/2012 OF THE ITAT AHMEDABAD C BENCH IN ITA NOS.222/AHD/2008 & 2232/AHD/2008 FOR ASST.YEAR 2004 -05. THE MA NOS.122 & 123/AHD/2012 ( IN ITA NOS. 222 & 2232/AHD/08 RESPECTIVELY ASST.YEAR 2004-05 - 2 - SUBMISSION IN THE MISCELLANEOUS APPLICATIONS IS ALM OST IDENTICAL AND, THEREFORE, WE REPRODUCE THE MISCELLANEOUS APPLICATI ON FILED BY THE REVENUE IN THE CASE OF FALGUNI CHETANBHAI PATEL IN MA NO.122/AHD/2012 AS UNDER:- 2. THE HONBLE ITAT AHMEDABAD HAS DECIDED 12 APPE ALS VIDE CONSOLIDATED ORDER DATED 17.02.2012 BEARING ITA NO.221/AHD/2008, 3842/AHD/2007, 222/AHD/2008, 234/A HD/2008, 1117/AHD/2008, 1483/AHD/2009, 2236/ADH/2008, 2235/A HD/2008, 3629/AHD/2008, 282/AHD/2008. ALL THESE APPEALS HAV E BEEN DECIDED IN THE FAVOUR OF THE ASSESSEE CONSIDERING T HAT THE LEGAL ISSUES ARE IDENTICAL IN NATURE IN ALL THE APPEALS I .E. CHALLENGING THE REOPENING OF ASSESSMENT U/S.147 R.W.S.148 OF THE AC T, HONBLE ITAT IN ITS ORDER HAS HELD AS UNDER: ON PERUSAL OF THE SAID DECISION OF ITAT AHMEDABAD IN THE CASE OF TARAMANI M.GATTANI (SUPRA) WHICH IS ON THE IDENT ICAL ISSUE WHERE A SURVEY WAS CARRIED OUT ON SHRI PANNAK DANAW AL. ON THE BASIS OF INFORMATION IN RESPECT OF SURVEY RECEI VED FROM INVESTIGATION WING, SURAT A NOTICE U/S.148 OF THE A CT, WAS ISSUED AND SERVED ON THE ASSESSEE I.E. TARAMANI M.GATTANI. THE FACTS IN THE SAID CASE ARE IDENTICAL TO THE FACTS IN THE PRE SENT CASE. THEREFORE, FOLLOWING THE ORDER OF CO-ORDINATE BENCH ON THE IDENTICAL FACTS AND ARGUMENTS MADE BY THE LD.COUNSE LS AND ARGUMENTS OF LD.SR-DR AND ON PERUSAL OF THE FACTS O N RECORD, WE ARE OF THE VIEW THAT REASONS RECORDED BY THE ASSESS ING OFFICER DO NOT REVEAL ANY LIVE NEXUS OF THE INFORMATION WITH T HE ASSESSEE, AMOUNT OF INCOME, AS TO WHETHER IT IS CHARGEABLE TO TAX AND WHETHER IT HAS ESCAPED THE ASSESSMENT. ONCE BASIC INGREDIENTS FOR ACQUIRING JURISDICTION U/S.147 ARE NOT RECORDED BY THE AO THEN IT COULD NOT BE SAID THAT HE HAD ANY REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. T HE PRESENT REASONS SO RECORDED CANNOT CONFER JURISDICTION ON T HE AO TO REOPEN THE ASSESSMENT. ACCORDINGLY REOPENING OF TH E ASSESSMENT IS CANCELLED. 3. THUS, IT IS CLEAR THAT THIS APPEAL OF THE ASSES SEE HAS BEEN ALLOWED BY CANCELING THE REOPENING OF ASSESSMENT P ROCEEDINGS. HOWEVER, IT IS TO SUBMIT THAT IN THE INSTANT CASE A SSESSMENT WAS NOT MA NOS.122 & 123/AHD/2012 ( IN ITA NOS. 222 & 2232/AHD/08 RESPECTIVELY ASST.YEAR 2004-05 - 3 - MADE BY REOPENING THE ASSESSMENT PROCEEDINGS BUT RE GULAR ASSESSMENT ORDER U/S.143(3) WAS PASSED ON 29-09-200 6. AS ASSESSMENT ORDER HAD BEEN PASSED U/S.143(3) SO THER E APPEARS TO BE A MISTAKE IN THE ORDER OF THE HONBLE ITAT, BECA USE THE SAME HAS BEEN DECIDED INADVERTENTLY BY CONSIDERING THAT THE ASSESSMENT WAS MADE BY REOPENING THE ASSESSMENT PROCEEDINGS U/ S.147 R.W.S.148. IN VIEW OF THE ABOVE FACTS, I AM DIRECT ED BY THE LD.COMMISSIONER OF INCOME TAX-III, SURAT VIDE LETTE R NO.SRT/CIT- III/ITO/TECH/MA/2012-13 DATED 21.06.2012 TO HUMBLY REQUEST YOU TO SUITABLY RECTIFY THE ORDER NO.ITA NO.222/AHD/200 8 DATED 17-02- 2012. (COPY OF ASSESSMENT ORDER PASSED U/S.143(3) O F THE ACT PASSED AND COPY OF THE CONSOLIDATED ORDER DATED 17- 02-2012 PASSED BY THE HONBLE ITAT ARE ENCLOSED HEREWITH FO R READY REFERENCE). 3. THE LD.DR OF THE REVENUE ARGUED THAT THE ITAT IN ITS ORDER DATED 17/02/2012(SUPRA) HAS DECIDED THE ISSUE IN FAVOUR O F ASSESSEE CONSIDERING THE LEGAL ISSUE WITH REGARD TO CHALLENGING THE REOP ENING OF ASSESSMENT U/S.147 R.W.S.148 OF THE IT ACT. THE DR POINTED OU T THE ORDERS OF THE AO AND THE LD.CIT(A) THAT THERE WAS NO RE-OPENING OF T HE ASSESSMENT IN THE PRESENT CASES AND THE ASSESSMENT HAS BEEN MADE U/S. 143(3) OF THE IT ACT. THERE WAS NO GROUND BEFORE THE LD.CIT(A) AS WELL AN D THE SAME DOES NOT ARISE FROM THE ORDER OF LD.CIT(A). THE MISTAKE HAS OCCURRED BECAUSE OF MENTIONING THE SECTION UNDER WHICH THE ORDER HAS BE EN PASSED BY THE LD.CIT(A) AS SECTION 143(3) / 147 OF THE ACT IN COL .NO.4 AND ALSO IN FORM NO.36 IN COL.NO.4 THE SAME SECTIONS HAVE BEEN MENTIONED. THESE TWO APPEALS HAVE BEEN HEARD ALONG WITH OTHER 10 AP PEALS WHICH WERE DISPOSED OF BY A CONSOLIDATED ORDER BY ITAT WHICH P ROBABLY WERE HAVING THE ISSUE ON THE REOPENING OF THE ASSESSMENT , HOW THIS MISTAKE HAS OCCURRED WHICH NEEDS RE-CALLING OF THE ORDER. MA NOS.122 & 123/AHD/2012 ( IN ITA NOS. 222 & 2232/AHD/08 RESPECTIVELY ASST.YEAR 2004-05 - 4 - 4. THE LD.COUNSEL FOR THE ASSESSEE CONCEDES THAT TH ERE IS A MISTAKE APPARENT FROM RECORD AND CONCUR WITH THE ARGUMENTS MADE BY THE LD.DR. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. ON PERUSAL OF RECORD, WE FIND THAT THERE IS NO RE-OPENING OF THE ASSESSMENT IN BOTH THE CASES U/S.147 OF THE ACT AND THE ASSESSMENT HAS BEEN MADE U/S.143(3) OF THE ACT. MOREOVER, THERE I S NO GROUND DECIDED BY THE LD.CIT(A) WITH REGARD TO THE SAID LEGAL ISSU E. THE MISTAKE HAS OCCURRED IN DECIDING ALL THE 12 APPEALS BY A CONSOL IDATED ORDER WHERE OTHER 10 APPEALS ARE HAVING THE ISSUE ON RE-OPENIN G OF THE ASSESSMENT. HOWEVER, THERE IS A MISTAKE IN OUR ORDER IN WHICH W E HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE WHICH, IN FACT, WAS NOT THE ISSUE ARISING FROM THE ORDER OF THE LD.CIT(A). THEREFORE, WE RE -CALL OUR ORDER IN BOTH THE APPEALS, I.E. ITA NO.222/AHD/2008 & ITA NO.2232 /AHD/2008 AND DIRECT THE REGISTRY TO FIX THE HEARING OF BOTH THE APPEALS ON 21/11/2013 IN THE LIGHT OF UNDERTAKING GIVEN BY THE LD.COUNSEL FO R THE ASSESSEE MR.M.J.SHAH THAT HE SHALL COMPLY WITH THE APPELLATE PROCEEDINGS ON THE DATE MENTIONED HEREINABOVE. BOTH THE PARTIES WERE INFORMED IN THE OPEN COURT ABOUT THE DATE OF FIXATION OF THE APPEALS AND NOTICE OF HEARING WAS DISPENSED WITH THE CONSENT OF BOTH THE PARTIES. 6. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATI ONS FILED BY THE REVENUE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- SD/- ( G.C. GUPTA ) ( B.P . JAIN ) VICE PRESIDENT ACCOUN TANT MEMBER AHMEDABAD; DATED 20/ 09 /2013 ,&.., #.../ T.C. NAIR, SR. PS MA NOS.122 & 123/AHD/2012 ( IN ITA NOS. 222 & 2232/AHD/08 RESPECTIVELY ASST.YEAR 2004-05 - 5 - + ! %- . -*% + ! %- . -*% + ! %- . -*% + ! %- . -*%/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANTS. 2. / THE RESPONDENTS. 3. % '/ / CONCERNED CIT 4. '/() / THE CIT(A)-V, SURAT 5. -#23 % , , / DR, ITAT, AHMEDABAD 6. 345 6$ / GUARD FILE. +' +' +' +' / BY ORDER, -% % //TRUE COPY// 7 77 7/ // / 8 8 8 8 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION 20.9.13(DICTATION-PAD 7 PAGES ATTACHED WITH THE FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING 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 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.23/9/13 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23/9/13 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER