Shri Sumermal U. Jain, Ahmedabad V. The Income tax Officer, Ward-12(3), Ahmedabad

MA 412/AHD/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4582 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-04-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 30-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: U B MISHRA
• Assessee Lawyers: R B RATHI

Judgement Text

IN THE INCOME TAX APPELLLATE TRIBUNAL AHMEDABAD BENCHES B, AHMEDABAD BEFORE S/ SHRI MAHAVIR SINGH , JUDICIAL MEMBER, & SH RI D.C.AGARWAL , ACCOUNTANT MEMBER M.A.NO.412/AHD/2009 (ARISING OUT IT(SS)A NO.153/AHD/2006 BLOCK PERIOD 1/4/85 TO 31/3/95 DATE OF HEARING: 30.4.10 DRAFTED: 30.4.10 SUMERMAL U JAIN, C/O. R.E. RATHI & COMPANY, 35, NEW CLOTH MARKET, AHMEDABAD-380 002 PAN NO.AAKPJ6655L VS . INCOME TAX OFFICER, WARD-12(3), AHMEDABAD (APPELLANT) (RESPONDENT) (ORIGINAL APPELLANT) (ORIGINAL RESPONDENT) APPELLANT BY : SHRI R.B. RATHI, AR RESPONDENT BY: SHRI U.B. MISHRA, DR ORDER PER MAHAVIR SINGH, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION (MA), THE ASSESSEE HAS REQUESTED FOR RECTIFYING THE TRIBUNALS ORDER IN IT(SS)A NO.153/AHD/2006 DATED 30-10-2009. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE TRIBUNAL HAS NOT DEALT WITH THE GROUND REGARDING JURISDICTION, W HICH IS RAISED IN THE GROUNDS OF APPEAL. HE NARRATED THE GROUNDS RAISED IN APPEAL, WHICH ARE REPRODUCED IN THE PETITION AS UNDER:- 1) THE ORDER PASSED BY THE LEARNED A.O IS ILLEGAL AND VOID-AB-INITIO AS HE HAS NO AUTHORITY TO PASS THE ORDER. THE ORDER OF AS SESSMENT FOR BLOCK PERIOD U/ 158BC SHALL BE PASSED BY THE LEARNED A.O NOT BELOW THE RANK OF ASST. COMMISSIONER OF INCOME-TAX. THE I.T.O. HAS NO AUTHORITY TO PASS THE ORDER U/S.158BC 2) THE DATE OF SEARCH WAS ON 5/9/95 AND FOR THE PER IOD FROM 1/7/95 TO 31/12/96 THE ORDER OF THE LEARNED A.O HAS TO BE FIL ED DIRECTLY TO THE HONBLE TRIBUNAL. 2 3) THE ORDER FOR THE BLOCK PERIOD U/S.158BC SHOULD BE APPROVED BY THE LEARNED COMMISSIONER OF INCOME-TAX. THE LEARNED A.O HAS NOT TAKEN THE APPROVAL ALSO. THEREFORE, THE ABOVE REFERRED ORDER IS BAD IN LAW A ND DESERVES TO BE QUASHED. 4) IN THE ALTERNATIVE AND WITHOUT PREJUDICE TO ABOV E, THE LEARNED A.O HAS NOT CONSIDERED THE REQUEST OF THE APPELLANT FOR ISSUING THE SUMMONG TO THE CREDITORS AS THE APPELLANT IS A HEART PATIENT AND HE HAS MADE FULL PAYMENT TO THE CREDITORS AND MOST OF THE CREDITORS ARE OUTSIDERS. THE APPELL ANT HAS REQUESTED THE LEARNED A.O FOR ISSUING THE SUMMONS IF HE REQUIRE THE PERSO NAL ATTENDANCE OTHERWISE THE APPELLANT HAS ADDUCED ALL THE EVIDENCE BEFORE THE L EARNED A.O. ACCORDINGLY, THE LD. COUNSEL FOR THE ASSESSEE REFER RED TO THE TRIBUNALS ORDER AND STATED THAT THESE ISSUES ON JURISDICTION HAS NOT BEEN DECI DED BY THE TRIBUNAL AND REQUESTED FOR RECALLING OF THE ORDER. 3. AFTER HEARING THE RIVAL CONTENTIONS AND GOING TH ROUGH THE CASE RECORDS, WE FIND THAT ORIGINALLY ATTACHED GROUNDS OF APPEAL WITH FOR M NO.36 HAS AS IT IS BEEN REPRODUCED IN THE ORDER OF THE TRIBUNAL AND THERE IS NO SUCH G ROUND RAISED BY THE ASSESSEE AS REGARDS TO JURISDICTION. WE FIND IN THE MA FILE TH AT ANOTHER FORM NO.36 WAS FILED CHANGING THE GROUNDS OF APPEAL AND ALSO NOTICED THA T DURING THE COURSE OF ORIGINAL HEARING, THE SAME COUNSEL REPRESENTED BEFORE US AND NO SUCH JURISDICTIONAL GROUND WAS RAISED EITHER THROUGH ADDITIONAL GROUNDS OR VERBALL Y. ACCORDINGLY, WE ARE OF THE VIEW THAT THIS CHANGED FORM NO.36, SEEMS TO BE FILED AT THE T IME OF FILING OF MA IS NOTHING BUT A PLOY TO RECALL THE ORDER PASSED BY THE TRIBUNAL. A CCORDINGLY, WE FIND NO REASON TO ENTERTAIN THIS MA OF THE ASSESSEE AND DISMISS THE S AME. 5. IN THE RESULT, ASSESSEE S MA IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/04/2010. 4 SD/- SD/- ( D.C.AGARWAL ) ( MAHAVIR SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AHMEDABAD. DATE : 30/04/2010 DKP* COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A)-XXI, AHMEDABAD 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE (IN DUPLICATE) BY ORDER, DR / AR, ITAT, AHMEDABAD