Shri Govindbhai Mafatlal Patel, Ahmedabad V. The Asstt. Commissioner of Income Tax, Central Circle-1(1), Ahmedabad

MA 232/AHD/2017

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1477 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 14-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: TO AHD ASSTT YEAR S TO; TO AHD IN ITSSA NO S
• Assessee Lawyers: ASHWIN SHAH AR SHRI T SHANKAR
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Set aside
• Section: 201; 13; 22; 32

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER AND MS MADHUMITA ROY, JUDICIAL MEMBER M.A. NO S . 232 & 267 TO 271 /AHD/2017 IN ./ IT(SS)A NO S . 17 & 18 TO 22 / AHD/ 2017 / ASSTT. YEAR S : 2005 - 2006 TO 2007 - 2008 & 2009 - 2010 TO 2011 - 2012 GOVINDBHAI MAFATLAL PATEL, 31, AJANTA PARK SOCIETY, OPP. ST.XAVIER SCHOOL, MEMNAGAR, AHMEDABAD - 380051. P A N :ABEPP8982F VS THE A.C.I.T, CENTRAL CIRCLE - 1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM R O A D, AHMEDABAD M.A. NO S .233 & 272 /AHD/2017 IN ./ IT(SS)A NO S . 23 & 24/AHD/2017 / ASSTT. YEAR S : 2005 - 2006 & 2007 - 2008 LATE SAVITABEN GOVINDBHAI PATEL, LEGAL HEIR GOVINDBHAI MAFATLAL PATEL, 9 - A, HINDU COLONY, OPP. SARDAR PATEL STADIUM, AHMEDABAD - 380009 PA N :ABCPP1803F VS THE A.C.I.T, CENTRAL CIRCLE - 1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM R O A D, AHMEDABAD M.A. NO S .234 & 273 TO 276/AHD/2017 IN ./ IT(SS)A NO S . 25 & 26 TO 29/AHD/2017 / ASSTT. YEAR S : 2005 - 2006 TO 2007 - 2008,2009 - 2010 & 2010 - 2011 HASMUKHBHAI GOVINDBHAI PATEL, 31, AJANTA PARK SOCIETY, OPP. ST.XAVIER SCHOOL, MEMNAGAR, AHMEDABAD - 380051 PAN :ABEPP8989Q VS THE A.C.I.T, CENTRAL CIRCLE - 1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM R O A D, AHMEDABAD 2 M.A. NO.235/AHD/2017 IN ./ IT(SS)A NO. 30 /AHD/2017 / ASSTT. YEAR: 2005 - 2006 KAMINIBEN HASMUKHBHAI PATEL, 31, AJANTA PARK SOCIETY, OPP. ST.XAVIER SCHOOL, MEMNAGAR, AHMEDABAD - 380051 PAN :ADZPP3693C VS THE A.C.I.T, CENTRAL CIRCLE - 1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM R O A D, AHMEDABAD M.A. NO.236/AHD/2017 IN ./ IT(SS)A NO. 31/AHD/2017 / ASSTT. YEAR: 2005 - 2006 PRIYANK HASMUKHBHAI PATEL, 31, AJANTA PARK SOCIETY, OPP. ST.XAVIER SCHOOL, MEMNAGAR, AHMEDABAD - 380051 PAN :AQXPP2246A VS THE A.C.I.T, CENTRAL CIRCLE - 1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM R O A D, AHMEDABAD M.A. NO S .237 & 277 TO 280 /AHD/2017 IN ./ IT(SS)A NO S . 32 & 33 TO 36 /AHD/2017 / ASSTT. YEAR S : 2005 - 2006 TO 2007 - 2008, 2009 - 2010 & 2011 - 2012) BHAVESHBHAI GOVINDBHAI PATEL, 8, MANICHANDRA SOCIETY VIBHAG - III, THALTEJ , AHMEDABAD - 380051 PAN :ABYPP8214A VS THE A.C.I.T, CENTRAL CIRCLE - 1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM R O A D, AHMEDABAD 3 M.A. NO.238/AHD/2017 IN ./ IT(SS)A NO. 37/AHD/2017 / ASSTT. YEAR: 2005 - 2006 PRACHIBEN BHAVESHBHAI PATEL, 8, MANICHANDRA SOCIETY VIBHAG - III, THALTEJ, AHMEDABAD - 380051 PAN :ANTPP1837C VS THE A.C.I.T, CENTRAL CIRCLE - 1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM R O A D, AHMEDABAD M.A. NO S .239 & 281 TO 284 /AHD/2017 IN ./ IT(SS)A NO S . 38 & 39 TO 42/AHD/2017 / ASSTT. YEAR S : 2005 - 2006 TO 2007 - 2008, 2009 - 2010 & 2010 - 2011 ) NITINBHAI GOVINDBHAI PATEL, 9 - A, HINDU COLONY, OPP. SARDAR PATEL STADIUM AHMEDABAD - 380009 PAN :ABBPP5469Q VS THE A.C.I.T, CENTRAL CIRCLE - 1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM R O A D, AHMEDABAD & M.A. NO.240/AHD/2017 IN ./ IT(SS)A NO. 43/AHD/2017 / ASSTT. YEAR: 2005 - 2006 ALKABEN NITINBHAI PATEL, 9 - A, HINDU COLONY, OPP. SARDAR PATEL STADIUM, AHMEDABAD - 380009 PAN :ANMPP4913E VS THE A.C.I.T, CENTRAL CIRCLE - 1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM R O A D, AHMEDABAD (APPLICANT) (RESPONENT) ASSESSEE BY : SHRI ASHWIN SHAH, AR REVENUE BY : SHRI T.SHANKAR, SR.DR / DATE OF HEARING : 05 / 10 /201 8 / DATE OF PRONOUNCEMENT: 10 / 10 /201 8 4 / O R D E R PER MS MADHUMITA ROY, JUDICIAL MEMBER : 1. THESE BUNCH OF MISCELLANEOUS APPLICATION S HAVE BEEN FILED BY THE DIFFERENT ASSESSEE S ARISING OUT OF THE COMMON ORDER DATED 23/08/2017, PASSED IN IT (SS) A NOS. 17 TO 42 /AHD/2017 FOR THE RESPECTIVE ASSESSMENT YEARS AS MENTIONED IN THE ABOVE CAUSE TITLE . 2. THE PLEADING S OF THE MISCELLANEOUS APPEALS INDICATE THAT THE GRIEVANCE/ISSUE/PRAYER IS IDENTICAL. IN TERMS OF PRAYER MADE BY BOTH THE PARTIES , WE PROCEED TO ADJUDICATE THE APPLICATION IN RESPECT OF SHRI HASMUKHBHAI GOVINDBHAI PATEL. WE TAKE THE M.A.NO.234/AHD/2017 , MATTER HASMUKHBH AI GOVINDBHAI PATEL V/S. ASSISTANT COMMISSIONER OF INCOME TAX AS THE LEAD CASE. 3. THE MAIN CONTENTION OF THE ASSESSEE BEFORE US IS AGAINST THE OPERATIVE PORTION /DIRECTIVE OF THE ORDER DATED 23/08/2017, PASSED BY THE LD. ITAT IN THE MATTER AS FOLLOWS: WE OBSERVE IN THESE FACTS THAT THIS TRIBUNAL S DECISION IN SHAHRUKH KHAN S CASE (SUPRA) SQUARELY APPLIED HERE. WE THEREFORE ACCEPT ASSESSEE S ARGUMENTS AND REMIT THE INSTANT ISSUE BACK TO THE CIT(A) FOR A FRESH ADJUDICATION OF HIS LOWER AP PEAL AS PER LAW. WE MAKE IT CLEAR THAT THE CIT(A) SHALL AFFORD ADEQUATE OPPORTUNITY TO THE ASSESSEE TO CHALLENGE CORRECTNESS OF ALL THE IMPUGNED ADDITION AS MADE BSED ON SPECIAL AUDITOR S REPORT (SUPRA) IN LIGHT OF HON BLE APEX COURT S DECISION EXTRACTED H EREINABOVE. THE ASSESSEE S FIRST SUBSTANTIVE PLEA IS THEREFORE ACCEPTED FOR STATISTICAL PURPOSES. SO IS THE OUTCOME OF HIS MAIN APPEAL IT(SS)A NOS.17/AHD/2017 WHICH IS PARTLY ACCEPTED FOR STATISTICAL PURPOSES 4 . THE ARGUMENT ADVANCED BY THE LEARNED COUN SEL AT THE TIME OF HEARING OF THE APPLICATION BEFORE US IS THIS THAT ITAT, HAS ACCEPTED THAT EITHER THE LD.CIT(A) OR THE ASSESSING OFFICER DURING THE REMAND PROCEEDINGS HAS NOT GIVEN PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSES AND THEREFORE THE RE IS A VIOLATION OF PRINCIPLE OF NATURAL JUSTICE . 5 THIS BEING THE SOLE REASON ITAT OBSERVED THAT THE JUDGMENT OF SHAHRUKH KHAN CASE IS SQUARELY APPLICABLE TO THE INSTANT CASE OF THE ASSESSEE AND T HUS THE MATTER HAS BEEN SENT LD.CIT(A) FOR FRESH ADJUDICATIO N. THE LEARNED COUNSEL JOINS THE ISSUE HERE REGARDING THE ERROR APPARENT ON THE FACE OF THE RECORD IN SUPPORT OF HIS CONTENTION. HE SUBMITTED T HAT IN THE CASE OF SHARUKH KHAN, THE MATTER WAS RESTORED TO THE FILE OF ASSESSING OFFICER AND NOT TO THE LD.CIT( A) TO AVOID CALLING FOR THE REMAND REPORT AGAIN BY THE LD.CIT(A) FROM THE ASSESSING OFFICER. THEREFORE, HE PRAYED FOR THE INSTANT MATTER REMITTED TO THE FILE OF THE ASSESSING OFFICER AND NOT TO THE LD.CIT(A) AS DIRECTED BY THE ORDER DATED 23/08/2017. ON TH E CONTRARY THE DE PARTMENTAL REPRESENTATIVE SUPPORTS THE ORDER DATED 23/08/2017 AND ALSO RELIED UPON THE JUDGMENT IN THE CASE OF CIT VS RAMESH ELECTRIC AND TRADING CO.(BOM HC), 203 ITR 497 . 5 . WE HAVE HEARD THE RIVAL CONTENTION S MADE BY THE LEARNED RE PRESENTATIVE OF THE RESPECTIVE PAR TIES. 6 . WE HAVE PERUSED THE ORDER PASSED BY THE LEARNED TRIBUNAL DATED 23/08/2017. THE RELEVANT PORTION WHICH HAS BEEN RELIED UPON IN SUPPORT OF THE CONTENTIONS MADE BY THE L EARNED REPRESENTATIVE OF THE ASSESSEE IN SHAHRUKH KHAN S CASE IS AS FOLLOWS: - ' 7. SINCE WE ARE OF THE VIEW THAT THE ORDER OF THE ID. CIT(A) DESERVES TO BE SET ASIDE THEN THE NEXT ISSUE ARISES WHERE TO RESTORE THIS ISSUE FOR VERIFICATION AND RE - ADJUDICATION, WHETHER AT THE FILE OF ID. CIT(A) OR THE ASSESSING OFFICER. ORDINARILY WHEN THE ORDER OF THE FIRST APPELLATE AUTHORITY IS SET ASIDE THEN ISSUE IS TO BE RESTORED TO HIS FILE FOR RE - ADJUDICATION. BUT IN THE PRESENT CASE IT IS THE ASSESSING OFFICER WHO TO EXAMINE THE ADDITIONAL EVIDENCE PRODUCED BV THE ASSESSEE IN SUPPORT OF ITS CLAIM OF EXPLAINING THE CASH CREDIT. IF WE RESTORE THIS ISSUE TO THE FILE OF ID. CIT(A) IT WILL ONLY INCREASE THE MULTIPLICITY OF THE LITIGATION BECAUSE ID. FIRST APPELLATE AUTHORITY WOULD HAVE TO AGAIN CALL FOR A REMAND REPORT FROM THE ASSESSING OFFICER. THUS TAKING INTO CONSIDERATION ALL THESE CIRCUMSTANCES AND THE ASSESSMENT YEAR INVOLVED I.E 1993 - 1994 WE ARE TO THE VIEW THAT IF WE SET ASIDE THIS ISSUE TO THE ASSESSING OFFICER FOR RE - ADJUDICATION THEN ENDS OF JUSTICE WO ULD MEET. THE GROUND NO. 1 OF THE ASSESSEE'S APPEAL IS ALLOWED ' 6 7 . THE MATTER WAS REMITTED TO THE FILE OF THE LEARN ED ASSESSING OFFICER TO EXAMINE THE ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM EXPLAINING CASH CREDIT AS IT APP EAR S IN THE FORGOING PARAGRAPH IN SHAHRUKH KHAN S CASE . SINCE IN SHAHRUKH S CASE NO REMAND REPORT WAS CALLED FOR, T HE LD. CIT(A) WHO IN TU RN MAY ASK FOR REMAND REPORT FROM THE LEARNED AS SESSING OFFICER AND TH US THE MATTER HAS DIRECTLY BEEN SENT TO THE FILE OF THE LEARNED ASSESSING OFFICER T O MINIMIZE THE PROCESS FOR COMING TO A DEFINITE CONCLUSION BY THE REVENUE . ON THE CONTRARY IN THE MATTE R IN HAND, THE FIRST REMAND REPOR T WAS SUBMITTED BY THE ASSESSING OFFICER ON 15/09/2014, (PAGE 298 TO 398 OF PAPER BOOK) AS SOUGHT FOR BY THE LD.CIT(A) . THE LD.ASSESSING OFFICER REJECTED THE ADDITIONAL EVIDENCES IN THE SAID REMAND REPORT. THE SECOND REMAND REPORT THEREAFTER WAS SUBMITTED BY THE JOINT COMMISSIONER OF INCOME TAX , DATED 23/09/2014, (PAGE 319 OF THE PAPER BOOK ONWARDS) ALLEGING THAT THE ASSESSEE HAVE NOT AVAIL ED CROSS EXAMINATION OPPORTUNITY. THE FIRS T APPELLATE AUTHORITY BEING THE LD.CIT(A) THERE AFTER PERUSED THE THIRD REMAND REPORT ON 16/10/2014. THEREFORE , IN THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSEE CANNOT SQUARELY ASSER T AS A MATTER OF RIGHT THAT THE MATTER BE SENT TO THE LD.AO OR ELSE TO THE LD.CIT(A) MAY CALL FOR THE REMAND REPORT FROM THE ASSESSING OFFICER . 8 . THE SECOND LIMBS OF ARGUMENT OF THE L EARNED COUNSEL IS VERY INTERESTING . HE ARGUED THAT THOUGH THE LD. ITAT OPINED THAT SHAHRUKH KHAN S CASE IS SQUARELY APPLICABLE BUT THE FILE HAS BEEN SENT TO THE LD.CIT(A) INSTEAD OF LD.AO WITHOUT FOLLOWING THE SAID JUDGMENT . IN THE JUDGM ENT OF SHARUKH KHAN THE L EARNED TRIBUNAL IN PARAGRAPH 7 MENTIONED THAT ORDINARILY WHEN THE ORDER OF THE F IRST APPELLATE AUTHORITY IS SET ASIDE THEN THE ISSUE IS TO BE RESTORED TO HIS FILE FOR RE - ADJUDICATION. BUT IN THE SP ECIAL FACTS AND CIRCUMSTANCE S OF THE CASE THE MATTER HAS B EEN SENT TO THE FILE OF THE LEARNED ASSESSING OFFICER. WE DO NOT HESITATE TO OBSERVE THAT THE FACTS OF SHARUKH KHAN S CASE IS PLACED ON A DIFFERENT FOOTING . THERE IS NO SUCH SPECIAL OCCASION TO REMIT THE MATTER TO THE FILE 7 OF THE L EARNED ASSESSING OFFICER FOR FRESH ADJUDICATION PARTICULARLY WHEN SEVERAL REMAND REPORTS HAVE ALREADY BEEN FURNISH ED BEFORE THE LD.CIT(A) BY THE L EAR NED ASSESSING OFFICER . THEREFORE , SEEKING THE MATTER TO BE REMITTED BACK TO THE LD.AO INSTEAD OF LD.CIT(A) IN AN APPLICATION MOVED U/S.254(2) D OES NOT HOLD WATER. 9 . THE L EARNED TRIBUNAL SPECIFICALLY OBSERVED THAT SHAHRUKH KHAN S JUDGMENT IS SQUARELY APPLICABLE MEANING THEREBY THE RATIO OF THE JUDGMENT IS APPLICABLE IN THE INSTANT CASE ON THIS COUNT THAT WHEN THE ADDITIONAL EVIDENCES WERE NOT TAKEN INTO CONSIDERATION , THEN THE SAME IS REQUIRED TO BE SENT FOR FURTHER CONSIDERA TION OR RE - ADJUDICATION THEREOF TO THE LOWER AUTHORITIES. 10 . WE REPEAT THAT THIS RATIO OF THE JUDGMENT IS CORRECT LY FOLLOWED BY ITS LETTER A ND SPIRIT BY THE L EARNED ITAT IN THEIR ORDER DATED 23/08/2017, BY SETTING ASIDE THE ISSUE TO THE FILE OF LD.CIT(A). THERE IS NO STRAIGHT JACKET FORM ULA LAID DOWN IN SHAHRUKH KHAN S MATTER THAT ONCE THE ORDER OF LD.CIT(A) IS SET ASIDE IT IS REQUIRED TO BE S ENT TO THE FILE OF ASSESSING OFFICER AND NOT TO THE FILE OF FIRST APPELLATE AUTHORITY . IT IS THE DISCRETIONS AND ALSO THE WI SDOM OF THE ITAT TO CONSIDER ON THE FACTS AVAILA BLE ON RECORDS TO DECIDE TO WHOM THE MATTER IS TO BE SENT FOR RE - ADJUDICATION UPON A DDITIONAL EVIDENCES OF THE ASSESSEE. 1 1 . THUS, REMITT ING THE MATTER TO THE FILE OF LD.CIT(A) IS NOT OF APPARENT NATURE W HICH COULD BE SOUGHT TO BE RECTIFIED BY US. ON THIS ASPECT T HE JUDGMENT RELIED UPON BY THE L EARNED DEPARTMENTAL REPRESENTATIVE IS APPLICABLE. THE RELEVANT PORTION WHEREOF IS AS FOLLOWS: THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IT NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF 8 12. NEEDLESS TO SAY THE SCOPE OF RECTIFICATION U/S.254(2) IS QUITE NARROW AND LIMITED TO RECTIFICATION OF MANIFEST ERROR RESULTING FROM OMISSION ON THE PART OF THE TRIBUNAL. AN ERROR OF JUDGMENT IS CAPABLE OF BEING RECTIFIED U/S.254(2) OF THE ACT, WHICH TANTAMOUNT S TO REVIEW OF THE PREVIOUS ORDER WHICH IS NOT PERMISSIBLE. 13 . TAKING INTO CONSIDERATION THE ENTIRE ASPECT OF THE MATTER , THE RIVAL SUBMISSION S MADE BY THE LEARNED REPRESENTATIVE , THE JUDGMENT S RELIED UPON BY THE RESPECTIVE PARTIES, PARTICULARLY THE FACTS OF THE CASE AND THE ORDER PASSED THEREON, WE FIND NO ERROR APPARENT ON FACE OF THE RECORDS IN THE ORDER DATED 27 /08/2017 PASSED BY THE LEARNED ITAT NEEDS RECTIFICATION . 14. HENCE, MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE S ARE DISMISSED . ORDER PRONOUNCED IN THE COURT ON 10 / 10 / 201 8 AT AHMEDABAD. - SD - ( PRADIP KUMAR KEDIA ) ACCOUNTANT MEMBER - SD - ( MS MADHUMITA ROY ) JUDICIAL MEMBER (TRUE COPY) AHMEDABAD; DATED 10 / 10 / 201 8 MANISH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A), AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD