The ITO, Ward-2(3)(7), Surat V. Shri Ashok Jain, Surat

MA 47/SRT/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4720 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 22-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Section: 254(2); 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, HON'BLE JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, HON'BLE ACCOUNTANT MEMBER (VIRTUAL HEARING) M.A.NO.47/SRT/2019 (ARISING OUT OF I.T.A NO.1505/AHD/2017) [ [ / ASSESSMENT YEAR: 2007-08 THE INCOME TAX OFFICER, WARD-2(3)(7), SURAT. VS. SHR I ASHOK JAIN, PRO. SUPER JEWELS, C/O. 302, NISHIT DIAMOND COMPLEX, GUJJAR FALIA, MAHIDHARPURA, SURAT 395009. [PAN: ABDPJ 6027 E] / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI HIMANSHU GANDHI CA /REVENUE BY SMT. ANUPAMA SINGLA SR. DR / DATE OF HEARING: 08 . 01 .20 2 1 /PRONOUNCEMENT ON: 02 . 0 2 .20 2 1 ORDER UNDER SECTION 254(2) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS MISCELLANEOUS APPLICATION (MA) IS FILED BY REVENUE FOR SEEKING RECTIFICATION IN THE ORDER DATED 14.11.2018 PASSED IN ITA NO.1505/AHD/2017 FOR ASSESSMENT YEAR (A.Y.) 2007-08. 2. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE SUBMITS THAT IN THE PRESENT APPEAL, THE REVENUE HAS CHALLENGED THE ORDER PASSED BY LD.CIT(A)-3, SURAT DATED 29.03.2017, WHEREIN NOTICE UNDER SECTION 148 WAS HELD VOID AB INITIO BEING ISSUED WITHOUT ANY JURISDICTION. THE TRIBUNAL UPHELD THE ACTION/ORDER OF LD.CIT(A) BY HOLDING THAT NECESSARY APPROVAL FROM THE OFFICE OF LEARNED COMMISSIONER ITO, WARD-2(3)(7), SURAT VS. ASHOK JAIN/ MA NO.47/SRT/2019 FOR A.Y. 2007-08 2 UNDER SECTION 151 OF THE ACT WAS GRANTED ON 29.03.2017, HOWEVER, THE ASSESSING OFFICER HAS ALREADY ISSUED NOTICE ON 28.03.2014. THE LD. DR FOR REVENUE SUBMITS THAT APPROVAL FROM THE OFFICE OF LD.COMMISSIONER WAS ACCORDED ON 28.03.2014, WHICH WAS SIGNED ON 28.03.2014 ITSELF. HOWEVER, IN A PREFORM FOR APPROVAL OF DATE IS MENTIONED AS 29.0.2014 WHICH CAN BE RESULT OF HUMAN ERROR. THE LD.DEPARTMENTAL REPRESENTATIVE SUBMITS THAT CHRONOLOGY OF ENTIRE EVENT SUGGEST THAT APPROVAL WAS GRANTED ON 28.03.2014 AND NOT ON 29.03.2014. THE LD.DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE SUBMITS THE ORDER PASSED BY THE TRIBUNAL IS CONTRARY TO THE FACTS AVAILABLE ON RECORD AND IS MISTAKE APPARENT ON RECORD. THE LD. DEPARTMENTAL REPRESENTATIVE PRAYED FOR RECALLING THE ORDER AND TO DECIDE THE APPEAL AFRESH. 3. ON THE OTHER HAND, THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITS THAT AGAINST THE ORDER OF TRIBUNAL DATED 14.11.2018 IN ITA NO.1505/AHD/2017, THE REVENUE FILED APPEAL BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT VIDE TAX APPEAL NO.353 OF 2019 AND THE SAME HAS BEEN DISMISSED ON 09.07.2019. THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED COPY OF DECISION OF HON'BLE JURISDICTIONAL HIGH COURT. THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITS THAT ONCE THE ORDER PASSED BY THE TRIBUNAL HAS BEEN AFFIRMED AND ITO, WARD-2(3)(7), SURAT VS. ASHOK JAIN/ MA NO.47/SRT/2019 FOR A.Y. 2007-08 3 NO SUCH CONTENTION WAS RAISED BY THE REVENUE BEFORE THE HON'BLE HIGH COURT AS RAISED IN THE PRESENT MA, NOW THE REVENUE IS PRECLUDED FROM TAKING THIS NEW STAND BEFORE THIS TRIBUNAL. THE AUTHORISED REPRESENTATIVE SUBMITS THAT THE LD.CIT(A) AS WELL AS THE TRIBUNAL AFTER CONSIDERING THE EVIDENCE ON RECORD, CLEARLY HELD THAT NECESSARY APPROVAL UNDER SECTION 151 OF INCOME TAX ACT, FOR REOPENING OF THE CASE WAS GRANTED ONLY ON 29.03.2014 ON THE PROFORMA FOR APPROVAL IS A HUMAN ERROR, IS AN AFTERTHOUGHT THE CONTENTION OF ASSESSING OFFICER/REVENUE. THE AUTHORISED REPRESENTATIVE PRAYED FOR DISMISSAL OF MISCELLANEOUS APPLICATION. 4. WE HAVE CONSIDERED THE CONTENTION OF BOTH THE PARTIES. WE HAVE ALSO GONE THROUGH THE RELEVANT MATERIAL INCLUDING THE PROFORMA FOR APPROVAL UNDER SECTION 151 OF THE ACT. WE HAVE NOTED THAT APPROVAL BY LEARNED COMMISSIONER UNDER SECTION 151 WAS GRANTED ONLY ON 29.03.2014, WHICH IS CLEARLY DISCERNABLE AND IS APPARENTLY WRITTEN BY THE LD.COMMISSIONER IN HER OWN WRITING. THIS FACTS WAS APPRECIATED BY THE LD.CIT(A) WHILE HOLDING NOTICE UNDER SECTION 148 OF THE ACT AS VOID AB INITIO . THE LD.CIT(A) HAS REPRODUCED THE SCANNED COPY OF NOTICE UNDER SECTION 148 OF THE ACT DATED 28.03.2014 AND COPY OF PROFORMA FOR APPROVAL FOR REOPENING. THEREFORE, WE DO NOT FIND ANY MERIT IN THE APPLICATION FILED BY THE REVENUE. ITO, WARD-2(3)(7), SURAT VS. ASHOK JAIN/ MA NO.47/SRT/2019 FOR A.Y. 2007-08 4 EVEN OTHERWISE, THE ORDER PASSED BY OUR PREDECESSOR HAS BEEN AFFIRMED BY HON'BLE JURISDICTIONAL HIGH COURT IN ORDER DATED 09.07.2019. THUS, ON THE PRINCIPLE OF MERGER, THE APPLICATION OF REVENUE IS LIABLE TO BE DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER ON 02FEBRUARY 2021 BY PLACING THE RESULT ON NOTICE BOARD. SD/- SD/- (DR.ARJUN LAL SAINI) (PAWAN SINGH) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 02 FEB 2021 / #SGR COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT