M/s. Uday Gas Agency, Ahmedabad V. The Income tax Officer, Ward-6(10), Ahmedabad

MA 15/AHD/2009

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9755 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 28-01-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 16-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Keywords: Opportunity of being heard; Reassessment proceedings
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD D BENCH BEFORE: SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER A ND SHRI A.K. GARODIA, ACCOUNTANT MEMBE R M.A. NO.15, 16, 17 & 18/AHD/2009 (ARISING OUT OF ITA NO.1909, 1910, 1911 & 1653/AHD/ 2007) A. Y.1999-2000, 2000-01, 01-02 & 02-03 UDAY GAS AGENCY 1136, NR. SRP CAMP P.O. KRISHNANAGAR, SAIJPUR BOGHA, AHMEDABAD APPELLANT VS. THE INCOME TAX OFFICER, WARD-6(10) AHMEDABAD RESPONDENT DEPARTMENT BY : SHRI Y.P. VERMA, SR. D.R. ASSESSEE BY : SHRI DEEPAK SONI, A.R. DATE OF HEARING : 04.01.2013 DATE OF PRONOUNCEMENT 18.01.2013 / ORDER PER : A.K. GARODIA, ACCOUNTANT MEMBER ALL THESE FOUR M.AS. ARE FILED BY THE ASSESSEE. 2. IT WAS NOTICED BY THE TRIBUNAL IN COURSE OF HEAR ING OF THESE M.AS. THAT EARLIER ALSO, AGAINST THE SAME TRIBUNAL ORDER DATED 21.09.2007, M.AS. WERE FILED BY THE ASSESSEE BEING M.A. NO.117 TO 120/AHD/2008 A ND THE SAME WERE DISMISSED BY THE TRIBUNAL AS PER ORDER DATED 7.11.2 008. THE ASSESSEE HAS SUBMITTED A COPY OF THE TRIBUNAL ORDER DATED 7.11.2 008 ALONG WITH COPY OF EARLIER M.AS, DATED 21.05.2008. 3. IN COURSE OF HEARING BEFORE US, IT WAS SUBMITTED BY LD. A.R. OF THE ASSESSEE THAT ISSUE RAISED IN THE EARLIER M.AS. WAS DIFFEREN T WHILE THE ISSUE RAISED IN THE PRESENT M.AS. IS DIFFERENT AND THEREFORE, INSPITE O F DISMISSAL OF EARLIER M.AS., THE PRESENT M.AS. SHOULD BE ENTERTAINED AND DECIDED ON MERIT. M.A. NO.15, 16, 17 & 18/AHD/2009 (ARISING OUT OF ITA NO.1909, 1910, 1911 & 1653/ AHD/2007) A. Y.1999-2000, 2000-01, 01-02 & 02-03 2 4. LD. D.R. OF THE REVENUE SUBMITTED THAT SINCE THE EARLIER M.AS. WERE DISMISSED BY THE TRIBUNAL BECAUSE THE SAME WERE WIT HDRAWN BY LD. A.R. OF THE ASSESSEE, THE PRESENT M.AS. DO NOT LIE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FOR T HE SAKE OF COMPARING THE CONTENTS OF THE PRESENT M.A. WITH EARLIER M.A., WE REPRODUCE HEREINBELOW THE CONTENTS OF THE PRESENT M.A.:- 1.0 UDAY GAS AGENCY (HEREINAFTER REFERRED TO AS TH E APPELLANT) HAS RECEIVED ON 12 TH APRIL, 2008 THE ORDER DATED 21 ST SEPTEMBER, 2007 PASSED BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL IN ITA NO.1653, 1909, 1910 AND 1911/AHD/2007 FOR THE ASSESSMENT YEARS 2002-03, 1999-2000, 2000-01 AND 2001-02 RESPECTIVELY. THE GROUNDS OF A PPEAL FOR ALL THE FOUR YEARS IN BRIEF HAVE BEEN STATED IN THE ANNEXURE AN NEXED HEREWITH. 2.0 THE APPEAL PREFERRED BY THE APPELLANT HAS BEEN DISMISSED BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL. THE HONB L E INCOME TAX APPELLATE TRIBUNAL IN PARA NO.7 HAS OBSERVED THAT T HE LEARNED AR OF THE ASSESSEE RELY ON THE SUB MISSIONS MADE BEFORE THE L EARNED COMMISSIONER OF INCOME TAX (APPEALS) WHEREAS THE LEARNED DR SUPP ORTED THE ORDERS FRAMED BY THE LOWER AUTHORITIES. 2.1 THE APPELLANT MOST RESPECTFULLY SUBMITS THAT ON THE DATE OF HEARING THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAD A TTENDED BEFORE THE INCOME TAX APPELLATE TRIBUNAL. THE APPELLANT SUBMI TS THAT THE OPPORTUNITY OF BEING HEARD AS CONTEMPLATED U/S 254( 1) COULD NOT BE GIVEN. 2.2 THE APPELLANT FURTHER SUBMITS THAT THE GROUNDS OF APPEAL REPRODUCED IN THE ORDER ARE GROUNDS OF APPEAL ONLY FOR THE ASS ESSMENT YEAR 2002-03. THE APPELLANT SUBMITS THAT VIDE GROUND NO.2 FOR THE ASSESSMENT YEARS 1999-00 TO 2001-02 (ITA NO.1909 TO 1911/AHD) THE AP PELLANT HAD CONTESTED BEFORE THE HONBLE INCOME TAX APPELLATE T RIBUNAL THE VALIDITY OF THE REASSESSMENT U/S 147. 2.3 THE APPELLANT SUBMITS THAT SAID GROUND NO.2 (AS ST. YEAR 1999-00 TO 2001-02) HAD INADVERTENTLY NOT BEEN DISPOSED OFF BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL. THE APPELLANT SUBMITS THAT THEREFORE THE ORDER BE RECALLED. 2.4 THE APPELLANT FURTHER SUBMITS THAT THE GROUND ( GR.NO.5.0 ASST. YEAR 1999-2000 TO 2001-02 AND GR. NO.4-ASST. YEAR 2002-0 3) RELATING TO COMPUTATION OF TAX/DEMAND HAS ALSO NOT BEEN DISPOSE D OFF INADVERTENTLY BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL. THE APPELLANT UNDER THE CIRCUMSTANCES RESPECTFULLY SUBMITS THAT THERE IS A MISTAKE APPARENT FROM THE RECORD. M.A. NO.15, 16, 17 & 18/AHD/2009 (ARISING OUT OF ITA NO.1909, 1910, 1911 & 1653/ AHD/2007) A. Y.1999-2000, 2000-01, 01-02 & 02-03 3 2.5 THE APPELLANT UNDER THE CIRCUMSTANCES MOST RESP ECTFULLY SUBMITS THAT THERE IS A MISTAKE APPARENT FROM THE RECORDS AND TH E ORDER FRAMED ON 21 ST SEPTEMBER, 2007 DESERVES TO BE RECALLED. THE APPE LLANT MOST RESPECTFULLY SUBMITS THAT THERE IS A MISTAKE APPARE NT FROM THE RECORD AND THEREFORE THE ORDER BE RECALLED. 3.0 IT IS NEEDLESS TO STATE THAT FOR THIS ACT OF KI NDNESS THE APPELLANT SHALL EVERY REMAIN OBLIGED TO THE HONBLE INCOME TAX APPE LLATE TRIBUNAL. THE REMAINING THREE M.AS. I.E. M.A. NOS.16 TO 18 AR E IDENTICAL. SIMILARLY THE REMAINING THREE OLD M.A.S. DATED 21.05.2008 ARE ALS O IDENTICAL TO M.A. NO.117/AHD/2008 THE CONTENTS OF WHICH ARE REPRODUCE D HEREINBELOW:- 1.0 UDAY GAS AGENCY (HEREINAFTER REFERRED TO AS THE APPELLANT) HAS RECEIVED ON 12 TH APRIL, 2008 THE ORDER DATED 21 ST SEPTEMBER, 2007 PASSED BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL IN ITA NO.1653, 1909, 1910 AND 1911/AHD/2007 FOR THE ASSESSMENT YEARS 2002-03, 1999-2000, 2000-01 AND 2001-02 RESPECTIVELY. 2.0 THE APPEAL PREFERRED BY THE APPELLANT HAS BEEN DISMISSED BY THE HONBLE INCOME TAX APPELLATE TRIBUNAL. THE HONBLE INCOME TAX APPELLATE TRIBUNAL IN PARA NO.7 HAS OBSERVED THAT THE LEARNED AR OF THE ASSESSEE RELY ON THE SUBMISSIONS MADE BEFORE THE LEARNED COM MISSIONER OF INCOME TAX (APPEALS) WHEREAS THE LEARNED DR SUPPORT ED THE ORDERS FRAMED BY THE LOWER AUTHORITIES. 2.1 THE APPELLANT MOST RESPECTFULLY SUBMITS THAT ON THE DATE OF HEARING THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAD A TTENDED BEFORE THE INCOME TAX APPELLATE TRIBUNAL. 2.2 THE APPELLANT FURTHER SUBMITS THAT HOWEVER, IMM EDIATELY ON BEGINNING OF THE HEARING OF THE APPEALS ONLY ONE QU ESTION WAS PUT BEFORE THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT BY T HE LEARNED ACCOUNTANT MEMBER AND THE QUESTION WAS WHETHER CERTIFIED TRUE COPY OF THE DEED OF PARTNERSHIP WAS FILED BEFORE THE ASSESSMENT WAS COM PLETED OR NOT AND IN RESPECT TO WHICH THE AUTHORIZED REPRESENTATIVE HAD ANSWERED IN AFFIRMATIVE. THE LEARNED ACCOUNTANT MEMBER THEREAF TER HAD EXPRESSED THE OPINION THAT UNDER THE CIRCUMSTANCES THE APPELL ANT WAS ENTITLED TO THE REGISTRATION AND THE APPEALS DESERVED TO BE ALLOWED . THE APPELLANT SUBMITS THAT EXCEPT THE ABOVE STATED BRIEF HEARING NO OTHER SUBMISSIONS WAS ADVANCED OR NO OTHER HEARING HAD TAKEN PLACE. THE AUTHORIZED REPRESENTATIVE IN VIEW OF THE ABOVE STATED DEVELOPM ENT COULD NOT ADVANCE ANY OTHER ALTERNATIVE SUBMISSIONS WHICH WER E EXHAUSTIVELY ADVANCED BEFORE THE COMMISSIONER OF INCOME TAX (APP EALS). 2.3 THE APPELLANT UNDER THE CIRCUMSTANCES MOST RESP ECTFULLY SUBMITS THAT THE ORDER HAS BEEN FRAMED WITHOUT GIVING THE APPELL ANT AN OPPORTUNITY OF BEING HEARD. THE APPELLANT THEREFORE SUBMITS THAT THERE IS A MISTAKE APPARENT FROM THE RECORDS AND THE ORDER FRAMED ON 2 1 ST SEPTEMBER, 2007 M.A. NO.15, 16, 17 & 18/AHD/2009 (ARISING OUT OF ITA NO.1909, 1910, 1911 & 1653/ AHD/2007) A. Y.1999-2000, 2000-01, 01-02 & 02-03 4 DESERVES TO BE AMENDED. THE APPELLANT MOST RESPECT FULLY SUBMITS THAT THERE IS A MISTAKE APPARENT FROM THE RECORD AND THE REFORE THE ORDER BE AMENDED. 3.0 THE APPELLANT WITHOUT PREJUDICE TO ABOVE AND BE SIDES ABOVE FURTHER SUBMITS THAT THE GROUNDS OF APPEAL REPRODUCED IN TH E ORDER ARE GROUNDS OF APPEAL ONLY FOR THE ASSESSMENT YEAR 2002-03. TH E APPELLANT SUBMITS THAT VIDE GROUND NO.2 FOR THE ASSESSMENT YEARS 1999 -00 TO 2001-02 (ITA NO.1909 TO 1911/AHD) THE APPELLANT HAD CONTESTED BE FORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL THE VALIDITY OF THE R EASSESSMENT U/S 147. 3.1 THE APPELLANT SUBMITS THAT SAID GROUND NO.2 HAD INADVERTENTLY NOT BEEN DISPOSED OFF BY THE HONBLE INCOME TAX APPELLA TE TRIBUNAL. THE APPELLANT UNDER THE CIRCUMSTANCES RESPECTFULLY SUBM ITS THAT THERE IS A MISTAKE APPARENT FROM THE RECORD. THE APPELLANT SU BMITS THAT THEREFORE THE ORDER BE AMENDED. 4.0 IT IS NEEDLESS TO STATE THAT FOR THIS ACT OF KI NDNESS THE APPELLANT SHALL EVER REMAIN OBLIGED TO THE HONBLE INCOME TAX APPEL LATE TRIBUNAL. 6. FROM THE CONTENTS OF THE OLD M.A. NO.117 TO 120/ AHD/2008, AS REPRODUCED ABOVE, WE FIND THAT THESE M.AS. WERE ON THESE ASPEC TS THAT THE TRIBUNAL ORDER HAD BEEN PASSED WITHOUT GIVING THE ASSESSEE AN OPPORTUN ITY OF BEING HEARD. IT WAS POINTED OUT IN THE OLD M.AS. THAT HEARING TOOK PLAC E ONLY ON ONE ASPECT AS TO WHETHER THE ASSESSEE HAS SUBMITTED CERTIFIED TRUE C OPY OF THE DEED OF PARTNERSHIP BEFORE THE A.O. BEFORE THE ASSESSMENT WAS COMPLETED AND IN REPLY IT WAS SUBMITTED BY THE ASSESSEE THAT THE SAME WAS SUBMITT ED AND ON THIS IT WAS COMMENTED BY LD. A.M. IN COURSE OF HEARING OF THE A PPEAL THAT IN THAT SITUATION THE ASSESSEE WAS ENTITLED TO THE REGISTRATION IN APPEAL S AND THE APPEALS DESERVE TO BE ALLOWED. IN THE PRESENT M.AS., THE CLAIM OF THE AS SESSEE IS THIS THAT THE TRIBUNAL IN THE IMPUGNED ORDER HAS REPRODUCED ONLY GROUND OF AP PEAL FOR A.Y. 2002-03 BUT AS PER GROUND NO.2 TO THE REMAINING THREE YEARS I.E. 1 999-2000 TO 2001-02 IN ITA NOS.1909 TO 1911/AHD/2007, THE ASSESSEE HAS CONTEST ED THE VALIDITY OF RE- ASSESSMENT U/S 147 BUT THIS ISSUE WAS NOT DECIDED A S PER THE IMPUGNED TRIBUNAL ORDER. IN THE PRESENT M.A., IT IS ALSO POINTED OUT THAT IN GROUND NO.5 FOR A.Y. 2001-02 AND A.Y. 2002-03, THE ISSUE INVOLVED WAS RE GARDING COMPUTATION OF M.A. NO.15, 16, 17 & 18/AHD/2009 (ARISING OUT OF ITA NO.1909, 1910, 1911 & 1653/ AHD/2007) A. Y.1999-2000, 2000-01, 01-02 & 02-03 5 TAX/DEMAND AND THIS WAS ALSO NOT DISPOSED OF BY THE IMPUGNED TRIBUNAL ORDER. WHEN WE GO THROUGH THE GROUNDS RAISED BY THE ASSESS EE IN THESE FOUR APPEALS, WE FIND THAT IN A.Y. 2002-03, THE ISSUE INVOLVED AS PE R GROUND NO.2 WAS REGARDING THE REGISTRATION OF THE ASSESSEE FIRM U/S 184. AS PER GROUND NO.3 IN THAT YEAR, THE ISSUE INVOLVED WAS REGARDING DISALLOWANCE OF RS.4,5 5,886/- AND AS PER GROUND NO.4 THE ISSUE INVOLVED WAS REGARDING CORRECT COMPU TATION OF DEMAND AFTER ADOPTING CORRECT TAX RATE AS AGAINST MAXIMUM MARGIN AL RATE. IN A.Y. 1999-2000, THE ISSUE RAISED IS VALIDITY OF THESE PROCEEDINGS A S PER GROUND NO.2 AND CORRECT COMPUTATION OF DEMAND AS PER GROUND NO.5 AND SO IS THE CASE IN A.Y. 2000-01 AND 2001-02. AS PER IMPUGNED TRIBUNAL ORDER, GROUNDS RAISED BY THE TRIBUNAL ON PAGE NO.1 AND 2 OF THE TRIBUNAL ORDER ARE IN FACT G ROUNDS OF APPEAL RAISED BY THE ASSESSEE IN A.Y. 2002-03 AND THE TRIBUNAL HAS NOT R EPRODUCED THE GROUNDS RAISED IN THE OTHER THREE YEARS. THE TRIBUNAL HAS HELD TH AT GROUND NO.1 IS GENERAL AND REGARDING GROUND NO.2 I.E. REGARDING STATUS OF THE ASSESSEE BEING A.O.P. OR PARTNERSHIP FIRM, IT WAS HELD BY THE TRIBUNAL THAT THE STATUS OF THE FIRM CANNOT BE GRANTED TO THE ASSESSEE ON THE BASIS OF SUCH DELAYE D EXECUTION OF PARTNERSHIP DEED. THEREAFTER THE TRIBUNAL HAS DECIDED THE CLAI M OF THE ASSESSEE FOR DELETION OF DISALLOWANCE OF THE REMUNERATION PAID TO THE PARTNE RSHIP AND THIS ISSUE WAS DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE AND TH ERE IS NO DECISION IN THE IMPUGNED TRIBUNAL ORDER IN RESPECT OF THE CLAIM OF THE ASSESSEE REGARDING VALIDITY OF REASSESSMENT PROCEEDINGS AND REGARDING CORRECT C OMPUTATION OF DEMAND IN ALL THE FOUR YEARS. UNDER THESE FACTS, WE ARE OF THE C ONSIDERED OPINION THAT THE ISSUES RAISED BY THE ASSESSEE IN OLD M.AS. AND IN THE NEW M.AS. ARE DIFFERENT AND ALTHOUGH THE ASSESSEES OLD M.AS WERE DISMISSED, TH E NEW M.AS. ARE STILL MAINTAINABLE BECAUSE THE MISTAKES POINTED OUT IN TH ESE FRESH M.AS. ARE DIFFERENT AS WELL AS ARISING FROM THE ORDER OF THE TRIBUNAL D ATED 21.09.2007. HENCE, WE ARE M.A. NO.15, 16, 17 & 18/AHD/2009 (ARISING OUT OF ITA NO.1909, 1910, 1911 & 1653/ AHD/2007) A. Y.1999-2000, 2000-01, 01-02 & 02-03 6 ADMITTING THESE NEW M.AS. AND SINCE WE FIND THAT TH E TRIBUNAL HAS NOT DECIDED THE ISSUE REGARDING VALIDITY OF THE REASSESSMENT PROCEE DINGS IN A.Y. 1999-2000 TO A.Y. 2001-02 AND REGARDING CORRECT COMPUTATION OF TAX DE MAND IN ALL THE FOUR YEARS, WE RECALL THE IMPUGNED TRIBUNAL ORDER FOR DECIDING THESE TWO ASPECTS IN A.Y. 1999- 2000 TO 2001-02 AND FOR DECIDING ONLY ONE ASPECT IN A.Y. 2002-03 I.E. REGARDING THE CORRECT COMPUTATION OF TAX LIABILITY. THE REGI STRY IS DIRECTED TO FIX THESE APPEALS FOR HEARING FOR THE LIMITED PURPOSE OF DECI DING THE ISSUES AS DISCUSSED ABOVE. 7. IN THE RESULT, M.AS. OF THE ASSESSEE STAND ALLOW ED IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON 18.01.2013 SD/- SD/- (MUKUL KUMAR SHRAWAT) (A.K. GARODIA) JUDICIAL MEMBER ACCO UNTANT MEMBER TRUE COPY N.K. CHAUDHARY, SR. P.S. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# +