Sanjeev Mishra, Lucknow V. IT0-I(3), Lucknow

MA 28/LKW/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7422 (ITAT-LUCKNOW)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-11-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 20-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEFALI SWARUP
• Keywords: Reopening of assessment; Opportunity of being heard
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH, LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI B. R. JAIN , ACCOUNTANT MEMBER M. A NO. 28/LKW/2011 [ARISING OUT OF ITA NO. 238/LUC/2007] ASSESSMENT YEAR: 2002 - 03 SANJEEV MISHRA B - 5 7, SECTOR B, ALIGANJ, LUCKNOW V. ITO I (3) LUCKNOW PAN: ADFPM16670E (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SMT. SEFALI SWARUP, D.R. DATE OF HEARING: 25.11.2011 DATE OF PRONOUNCEMENT: 13.12.2011 O R D E R PER S UNIL KUMAR YADAV : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE ASSESSEE UNDER SECTION 254(2) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER IN SHORT THE ACT) AGAINST THE ORDER OF THE TRIBUNAL DATED 7.11.2008 IN ITA NO. 238/LKW/2007 WITH THE SUBMISSION THAT AN ERROR HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR RECTIFICATION. 2. THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO PARAS 6 AND 7 OF THE ORDER OF THE TRIBUNAL WITH THE SUBMISSION THAT THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE WITH REGARD TO THE VALIDITY OF REOPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE ACT. WHILE DEALING WITH THE ISSUE ON MERIT, THE TRIBUNAL : - 2 - : HAS OBSERVED THAT THE LD. CIT(A) HAS NOT DECIDED THE ISSUE ON MERIT AND THE MATTER SHOULD GO BACK TO HIM, BUT CLEAR DIRECTIONS WERE NOT GIVEN TO THE LD. CIT(A) TO ADJUDICATE THE ISSUE ON MERIT AFRESH. THEREFORE, A CLEAR DIRECTION SHOULD BE GIVEN TO THE LD. CIT(A) TO ADJUDICATE THE ISSUE ON M ERIT AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD. D.R., ON THE OTHER HAND, HAS SIMPLY OPPOSED THE MISCELLANEOUS APPLICATION WITH THE SUBMISSION THAT THERE IS NO CONFUSION IN THE ORDER OF THE TRIBUNAL. THEREFORE, NO RECTIFI CATION THEREIN IS CALLED FOR. 4. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDER OF THE TRIBUNAL VIS - - VIS THE MISCELLANEOUS APPLICATION, WE FIND THAT IN PARA 6 OF ITS ORDER, THE TRIBUNAL HAS GIVEN A CA TEGORICAL FINDING THAT THE MATTER HAS TO GO BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE ISSUE OF VALIDITY OF REOPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE ACT. BUT, WHILE DEALING WITH THE ISSUE ON MERIT IN PARA 7 OF ITS ORDER, THE TRIBUNAL HAS NOT GIVEN A SPECIFIC FINDING IN THIS REGARD. P ARA 7 OF THE ORDER OF THE TRIBUNAL IS REPRODUCED HEREUNDER FOR THE SAKE OF BREVITY: - 7. COMING TO OTHER GROUNDS OF THE ASSESSEE, THEY ARE ON MERIT. SINCE NEITHER THE ASSESSING OFFICER NOR THE LD. CIT(A) HAS DECIDED THIS POINT ON MERIT, WE ARE OF THE VIEW THAT IN FAIRNESS THE MATTER HAS TO GO BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE ON THE POINT OF REOPENING. SINCE THE MATTER HAS REMANDED TO THE FILE OF THE LD. CIT(A), WE ARE OF THE VIEW THAT IT IS N OT NECESSARY FOR US TO DEAL WITH THE ISSUE ON MERIT SINCE THE VERY OUTCOME OF THE ENTIRE ORDER DEPENDS ON THE FINDING ON THE POINT OF REOPENING. 5. FROM A CAREFUL READING OF PARA 7 OF THE ORDER OF THE TRIBUNAL, IT IS NOT VERY MUCH CLEAR AS TO WHAT THE TRIBUN AL INTENDED TO DEAL WITH THE ISSUE ON MERIT. IN FIRST PART OF THIS PARA, IT APPEARS THAT THE TRIBUNAL INTENDED TO : - 3 - : SEND THE MATTER BACK TO THE LD. CIT(A) FOR RE - ADJUDICATION ON THE POINT OF REOPENING AND IN THE LATER PART IT APPEARS THAT THE TRIBUNAL DID N OT INTEND TO DEAL WITH THE ISSUE ON MERIT. WE HAVE CAREFULLY EXAMINED THE RECORD AND THE ORDER OF THE LD. CIT(A) AND WE ARE OF THE VIEW THAT WHEN THE MATTER IS BEING SENT TO THE LD. CIT(A) FOR RE - ADJUDICATION OF THE ISSUE OF REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE ACT, LET THE ENTIRE MATTER BE RE - EXAMINED BY THE LD. CIT(A) ON MERIT ALSO. WE ACCORDINGLY MODIFY THE ORDER OF THE TRIBUNAL DATED 7.11.2008 AND DIRECT THE LD. CIT(A) TO RE - ADJUDICATE THE ENTIRE ISSUE S ON MERIT ALSO AFTER AFFORDING AN OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.12.2011. SD/ - SD/ - [B. R. JAIN ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13. 12.2011 JJ: 2511 COPY FORWARDED TO: 1. APP LIC ANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR