Rajubhai Lakhabhai Bharwad, Surat V. The Dy. Commissioner of Income Tax, Central Circle-1, Surat

MA 189/AHD/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5267 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 18-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRASUN KABRA
• Assessee Lawyers: RAJESH K SHAH

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER MA NO. 189/AHD/2016 (ARISING OUT OF ITA NO. 708/AHD/2011) / ASSESSMENT YEAR : 2008-09 RAJUBHAI LAKHABHAI BHARWAD, AT & POST LASKANA, KAMREJ, SURAT PAN : AFKPB 9356 B VS DCIT, CENTRAL CIRCLE-1, SURAT APPLICANT (ORIGINAL RESPONDENT) RESPONDENT (ORIGINAL APPELLANT) ASSESSEE BY : SHRI RAJESH K. SHAH, CA REVENUE BY : SHRI PRASUN KABRA, DR DATE OF HEARING : 2 0/01/2017 DATE OF PRONOUNCEMENT IN COURT : 17/02/2 017 / O R D E R PER R.P. TOLANI, JUDICIAL MEMBER:- THE APPEAL OF REVENUE IN ITA NO.708/AHD/2011 WAS HE ARD EX-PARTE QUA THE ASSESSEE AND THE APPEAL WAS SET ASIDE AND R ESTORED BACK TO THE FILE OF LD. CIT(A) VIDE ITATS ORDER DATED 12.08.2016 BY FO LLOWING OBSERVATIONS:- 4. WE HAVE HEARD LD. DR, PERUSED THE MATERIAL AVAI LABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND FORCE IN THE AFORESAID SUBMISSIONS OF THE LD. DR THAT THE IMPUGN ED PROTECTIVE ASSESSMENT SHOULD BE DECIDED ON THE BASIS OF SUBSTANTIVE ASSES SMENT WHICH IS YET TO BE FINALIZED. THEREFORE, WE RESTORE THIS ISSUE BACK T O THE FILE OF THE LD. CIT(A) TO TAKE A VIEW IN ACCORDANCE WITH LAW AFTER THE FINALI ZATION OF SUBSTANTIVE ASSESSMENT IN THE CASE OF SHRI MANUBHAI NAIK. ACCO RDINGLY, THE REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 2. THE ASSESSEE IN ITS MISCELLANEOUS APPLICATION HA S CONTENDED AS UNDER:- 1. THE ABOVE APPEAL FILED BY THE DEPARTMENT AGAINS T THE ORDER OF CIT(A)-I, SURAT WAS HEARD BY HONBLE BENCH ON 12.08.2016. TH E ORDER IN RESPECT OF THE CASE WAS PASSED AND PRONOUNCED ON 12.08.2016 IN WHICH APPEAL OF THE REVENUE WAS ALLOWED FOR STATISTICAL PURPOSE AND REM AND BACK TO THE FILE OF CIT(A). MA NO.189/AHD/2016 IN ITA NO.708/AHD/2011 DCIT VS. RAJUBHAI L. BHARWAD AY : 2008-09 2 2) THE LEARNED DR HAS MADE REPRESENTED BEFORE THE B ENCH AND STATED THAT THE PROTECTIVE ASSESSMENT IS MADE IN CASE OF THE ASSESS EE AND SUBSTANTIVE ASSESSMENT HAS BEEN MADE IN CASE OF SHRI MANUBHAI N AIK . THE BENCH FURTHER ON THE BASIS OF CASE RECORD NOTED THAT THE CASE OF SHRI MANUBHAI NAIK IS RESORTED TO THE FILE OF CIT(A). 3) THE BENCH HAS OBSERVED THAT PROTECTIVE ASSESSMEN T SHOULD BE DECIDED AFTER THE DECISION OF SUBSTANTIVE ASSESSMENT AND ACCORDIN GLY THE CASE OF ASSESSEE IS RESORTED TO THE FILE OF CIT(A). 4) ON VERIFICATION, IT IS FOUND THAT THERE IS FACTU AL ERROR. THE SUBSTANTIVE ASSESSMENT IS MADE IN THE CASE OF SHRI JAIPRAKASH A SWANI (A' BENCH, APPEAL NO. 709/A/2011, NEXT DATE OF HEARING 06.12.2016) AN D NOT IN THE CASE OF SHRI MANUBHAI NAIK AS REFERRED IN THE ORDER OF TRIBUNAL. 3. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT WHEN THE SUBSTANTIVE ASSESSMENT IS MADE IN THE CASE OF SHRI JAIPRAKASH A SWANI, IT IS MISTAKE APPARENT FROM THE RECORD THAT WITHOUT KNOWING THE R ESULT OF SHRI JAIPRAKASH ASWANIS CASE, LD. DR HAS MENTIONED THE NAME OF SHR I MANUBHAI NAIK. THIS CONSTITUTES A MISTAKE APPARENT FROM THE RECORD AND THE IMPUGNED EX-PARTE ORDER OF ITAT SHOULD BE RECALLED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND MERIT IN THE CONTENTI ON OF THE LD. COUNSEL FOR THE ASSESSEE. THE MISTAKE AS POINTED OUT BY THE LD. COUSNEL FOR THE ASSESSEE IS APPARENT FROM THE RECORD WHICH DESERVES TO BE RE CTIFIED. IN VIEW THEREOF, THE ORDER PASSED IN REVENUES APPEAL IN ITA NO.708/ AHD/2011 DATED 12.08.2016 IS RECALLED AND THE REGISTRY IS DIRECTED TO FIX THE CASE FOR HEARING IN THE NORMAL COURSE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (R.P. TOLANI) JUDICIAL MEMBER AHMEDABAD; DATED 17/02/2017 *BIJU T., SR PS MA NO.189/AHD/2016 IN ITA NO.708/AHD/2011 DCIT VS. RAJUBHAI L. BHARWAD AY : 2008-09 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD