Shri Ajaykumar J. Patel, Surat V. The Dy. CIT, Circle-9, Surat

MA 73/AHD/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2659 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 21-11-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 07-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Valuation report
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI , ACCOUNTANT MEMBER MA NO. 73 /AHD/201 4 ( ARISING OUT OF ITA NO . 2 558 /AHD/20 1 3 A. Y. 200 6 - 0 7 SHRI AJAYKUMAR J. PATEL, D/18, NEET A SOCIETY, TADWADI, RANDER ROAD, SURAT. PAN: ADPPP 9146C VS DY. COMMISSIONER OF INCOME TAX, CIRCLE - 9, SURAT. (APP LICANT ) (RESPONDENT) REVENUE BY : SHRI V .K. SINGH , SR.D.R. APPLICANT BY : MR. RAMESH MALPANI , A.R. / DATE OF HEARING : 21 / 11 /201 4 / DATE OF PRONOUNCEMENT: 16/ 01 /201 5 / O R D E R PER MUKUL K R . SHRAWAT , JUDICIAL MEMBER : THIS MISC. APPLICATION HAS BEEN FILED BY THE APPLICANT ON 7 TH OF MAY, 2014 ARISING FROM THE ORDER OF THE TRIBUNAL DATED 7 TH MARCH, 2014. THROUGH THIS MISC. APPLICATION , THE APPLICANT IS AGGRIEVED ON THE GROUND THAT ONE OF THE ARGUMENT RAISED DURING THE COURSE OF HEARING IN RESPECT OF VALIDITY OF THE NOTICE ISSUED U/S.148 WAS NOT DULY CONSIDERED BY THE TRIBUNAL; THEREFORE, A MISTAKE WAS COMMITTED WHICH IS NOW TO BE RECTIFIED. RELEVANT PORTION OF THE APPLICATION IS REPRODUCED BELOW: (1) AT THE TIME OF HEARING, IT WAS ARGUED ON BEHALF OF THE APPELLANT THAT THE RE - ASSESSMENT PRO CEEDINGS INITIATED IN THE CASE OF APPELLANT U/S 147/148 OF THE ACT ARE WRONG AND BAD IN LAW AB INITIO BECAUSE THE REASONS U/S 148(2) WERE RECORDED BY A DIFFERENT ASSESSING OFFICER (AO), WHEREAS THE NOTICE U/S 148 WAS ISSUED BY ANOTHER/ DIFFERENT AQ. ATTENT ION OF HON BLE BENCH W AS DRAWN TO PARA '3' OF THE ASSESSMENT ORDER PASSED U/S . 147 R.W.S. 143(3) OF THE ACT, IN WHICH IT HAS BEEN CLEARLY MENTIONED THAT THE REASONS FOR RE - OPENING WERE DULY MA NO. 73 /AHD/201 4 IN ITA NO. 25 58 /AHD/201 3 SHRI AJAY KUMAR J. PATEL VS. DCIT, CIRCLE - 9, SURAT. FOR A.Y. 200 6 - 0 7 - 2 - RECORDED BY THE ASSESSING OFFICER DCIT, CIRCLE - 9, SURAT. ATTENTI ON OF HON'BLE BENCH WAS ALSO DRAWN TO THE PAGE NO. I OF THE PAPER BOOK FILED BY THE APPELLANT, WHICH IS THE COPY OF NOTICE U/S 148 OF THE ACT ISSUED ON 21/12/2010 BY THE AO INCOME TAX OFFICER, WARD - 7(1), SURAT. BY DRAWING THE ATTENTION OF HON'BLE BENCH TO ABOVE MATERIAL, IT WAS ARGUED THAT AS THE REASONS WERE RECORDED BY A DIFFERENT AO (DCIT, CIR - 9, SURAT) AND THE NOTICE U/S 148 WAS ISSUED BY A DIFFERENT AO (ITO, WARD - 7 (1), SURAT), THE WHOLE OF RE - ASSESSMENT PROCEEDING IS WRONG AND INVALID AB INITIO AS PER THE LAW LAID DOWN BY HON'BLE GUJARAT HIGH COURT IN THE CASE OF HYNOOP FOOD & OIL INDUSTRIES LTD. VS ACIT (2008) 307 ITR 115 (GUJ). RELIANCE WAS PLACED ON THE ABOVE REFERRED CASE LAW OF HON'BLE GUJARAT HIGH COURT AND IT WAS PLEADED THAT THE APPEAL OF THE APPELLANT ON THIS ISSUE IS COVERED BY THIS CASE LAW OF HON'BLE JURISDICTIONAL HIGH COURT. HOWEVER, IN THE APPEAL ORDER PASSED BY HON'BLE BENCH, THE ABOVE ARGUMENT OF APPELLANT HAS NOT BEEN CONSIDERED AND THE ABOVE MENTIONED CASE LAW RELIED UPON ON BEH ALF OF THE APPELLANT HAS ALSO NOT BEEN CONSIDERED. THUS, THE FIRST GROUND OF APPEAL OF THE APPELLANT HAS BEEN DISMISSED WITHOUT CONSIDERING THE ABOVE ARGUMENT OF THE APPELLANT AND WITHOUT CONSIDERING THE ABOVE REFERRED CASE LAW RELIED UPON BY THE APPELLANT . RELIEF PRAYED THE ASSESSEE (APPELLANT), THEREFORE, PRAYS THAT (1) THE SAID ORDER OF HON'BLE ITAT DATED 07 - 03 - 2014 BE KINDLY AMENDED TO RECTIFY THE ABOVE MISTAKE APPARENT FROM THE RECORDS AND THE FIRST GROUND [ GROUND NO.1(A) & (B)] OF THE APPEAL BE KI NDLY DECIDED AFRESH AFTER CONSIDERING THE ABOVE ARGUMENT OF THE APPELLANT AND AFTER CONSIDERING THE ABOVE REFERRED CASE LAW RELIED UPON BY THE APPELLANT I.E. HYNOOP FOOD & OIL INDUSTRIES LTD. VS. ACIT (2008) 307 ITR 115 (GUJ). 2. FROM THE SIDE OF THE APP LICANT, LEARNED AR HAS PLEADED THAT THE DECISION OF HYNOOP FOOD AND OIL INDUSTRY, 307 ITR 115 (GUJ.) HAS NOT BEEN CONSIDERED BY THE TRIBUNAL WHILE PASSING THE ORDER. HE HAS MENTIONED THAT THE NOTICE U/S.148 WAS ISSUED BY SOME OTHER INCOME TAX OFFICER , HOWE VER THE ASSESSMENT WAS FINALIZED BY AN ANOTHER OFFICER THEREFORE IN VIEW OF THE HON BLE GUJARAT HIGH COURT DECISION THE IMPUGNED NOTICE U/S.148 WAS TO BE QUASHED BY THE RESPECTED TRIBUNAL. MA NO. 73 /AHD/201 4 IN ITA NO. 25 58 /AHD/201 3 SHRI AJAY KUMAR J. PATEL VS. DCIT, CIRCLE - 9, SURAT. FOR A.Y. 200 6 - 0 7 - 3 - 3. FROM THE SIDE OF THE REVENUE, LEARNED SR.D.R., SRI V.K. SINGH H AS PLACED RELIANCE ON PARAGRAPH S 5 PAGE 6 OF THE ORDER OF THE TRIBUNAL FOR REFERENCE REPRODUCED BELOW: 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IN THIS CASE, PROCESSING OF THE CASE WAS MADE U/S.143(1A) ONLY AND NO SCRU TIN Y ASSESSMENT WAS MADE BY THE A.O. THE CASE WAS REOPENED U/S.148 AFTE R RECORDING THE REASONS WITHIN 4 YEARS. THE ASSESSEE HAD NOT DISCLOSED LONG TERM CAPITAL GAIN IN THE COMPUTATION OF INCOME EVEN THERE WAS NO LONG TERM CAPITAL GAIN ON SALE OF LAND. THE A.O . RECORDED THE REASONS AS PER LAW AND ISSUED NOTICE U/S. 148. THE ID. A.R. HAD NOT CONTROVERTED THE FINDINGS GIVEN BY THE ID. CIT(A) ON THIS ISSUE BY RELYING UPON VARIOUS DECISIONS ON THIS ISSUE BY THE VARIOUS COURTS. THERE IS NO MATERIAL WITH THE ASSESSEE TO SHOW THAT HE HAS CHALLENGED THE PROCEEDING U/S. 148 BEFORE THE A.O. AND ASKED TO GIVE THE COPY OF REASONS RECORDED TO THE A.O. HE HAD CO - OPERATED IN THE PROCEEDING WITH THE A.O. WITHOUT ANY OBJECTION. THEREFORE, AT THE STAGE OF APPELLANT, HE CANNOT TAK E OTHER ROUTE TO DEFEND HIS CASE. FURTHER, THE ASSESSEE HIMSELF ADMITTED THAT THE SHOW CAUSE NOTICE WAS ISSUED FOR MAKING ADDITION U/S.50C BY LETTER DATED 02.02.2011 BY THE A.O., WHEREAS ASSESSMENT WAS COMPLETED ON 25.10.2011 BY THE A O. THEREFORE, THERE IS NO. JUSTIFICATION OF CHALLENGING THE 148 PROCEEDING BY THE ASSESSEE. ACCORDINGLY, WE DISMISS THE FIRS T G RO UND OF ASSESSEE S APPEAL. 3.1 LEARNED SR.D.R. HAS THEREFORE CONTESTED THAT NO MISTAKE WAS COMMITTED BY THE TRIBUNAL BECAUSE THE ISSUE RAISED ABOUT THE VALIDITY OF THE NOTICE U/S.148 WAS DULY CONSIDERED BY THE TRIBUNAL AND THEREAFTER REJECTED THAT GROUND. HE HAS FURTHER PLEADED THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. 4. WE HAVE HEARD BOTH THE SIDES AND CAREFULLY PERUSED THE ORDERS REF ERRED BEFORE US. 4.1 THE FIRST CONTENTION THAT THE DECISION OF HYNOOP FOOD AND OIL INDUSTRY, 307 ITR 115 (GUJ.) WAS CITED AT THE TIME OF HEARING APPEARS TO BE INCORRECT BECAUSE THE UNDERSIGNED (JUDICIAL MEMBER) WAS ONE OF THE SIGNATORY OF THE ORDER OF THE TRIBUNAL DATED 7.3.2014 (ITA MA NO. 73 /AHD/201 4 IN ITA NO. 25 58 /AHD/201 3 SHRI AJAY KUMAR J. PATEL VS. DCIT, CIRCLE - 9, SURAT. FOR A.Y. 200 6 - 0 7 - 4 - N O .2558/AHD/2013, A.Y.2006 - 07). DUE TO THIS REASON, THE LOG BOOK OF THE DATE OF HEARING OF THE APPEAL I.E. 24 TH FEBRUARY, 2014 WAS CONSULTED AND FOUND THAT NO SUCH CASE LAW WAS REFERRED AT THE TIME OF HEARING. PHOTOCOPIES OF T HE PAGES OF THE LOG BOOK ARE NOW PLACED IN THIS MA FILE FOR ANY FUTURE REFERENCE. IT IS, THEREFORE, INCORRECT TO ALLEGE THAT THIS CASE LAW OF HON BLE GUJARAT HIGH COURT WAS EVER REFERRED WHEN THE HEARING OF THIS APPEAL TOOK PLACE BEFORE ITAT D BENCH AHME DABAD. 4.2 BE THAT AS IT WAS, EVEN NOW WE HAVE THOUGHT IT PROPER TO DEAL WITH THIS OBJECTION OF THE APPLICANT THEREFORE WE HAVE PERUSED THE CASE RECORDS AND THE COMPILATION FILED. IN THIS MISC. APPLICATION , THE APPLICANT HAS MENTIONED THAT IN PARAGRAPH 3 OF THE ASSESSMENT ORDER IT WAS MENTIONED THAT REASONS FOR REOPENING WERE RECORDED BY ASSESSING OFFICER DCIT, CIRCLE - 9, SURAT. HOWEVER, WE HAVE ALSO NOTED THAT THE ASSESSMENT ORDER HAS ALSO BEEN FINALIZED BY DCIT, CIRCLE - 9, SURAT. WE ARE OF THE VIEW THAT THE REASONS WERE RECORDED BY DCIT, CIRCLE - 9, SURAT AND THE ASSESSMENT WAS COMPLETED BY THE SAME DCIT, CIRCLE - 9, SURAT. WE, THEREFORE, HOLD THAT IT WAS A WRONG OBJECTION. THERE IS ONE MORE REASON TO REJECT THIS CONTENTION BECAUSE ON PAGE 2 OF THE PAPER BOOK , PART OF THE APPEAL RECORD, THE ASSESSEE HA D WRITTEN A LETTER DATED 03.02.2011 ADDRESSED TO DCIT, CIRCLE - 9, SURAT. THIS LETTER ITSELF PROVES THAT DCIT, CIRCLE - 9, SURAT HA D ISSUED NOTICE TO THE ASSESSEE AND IN REPLY THE ASSESSEE HA D INFORMED THAT THE RETUR N WAS FILED FOR A.Y. 2006 - 07 WITHIN TIME AND REQUIRED TO BE CONSIDERED. HOWEVER, ON THE OTHER HAND, LEARNED AR PLEADED THAT NOTICE U/S.148 DATED 21.12.2010 WAS ISSUED BY INCOME TAX OFFICER, WARD - 7(1) SURAT. THERE IS NO DENIAL OF THIS FACT BUT AFTER 21.12.2 010 THE SUBSEQUENT RECORDING OF REASON AND THE ISSUANCE OF MA NO. 73 /AHD/201 4 IN ITA NO. 25 58 /AHD/201 3 SHRI AJAY KUMAR J. PATEL VS. DCIT, CIRCLE - 9, SURAT. FOR A.Y. 200 6 - 0 7 - 5 - REQUISITE NOTICES SHOULD HAVE BEEN ISSUED BY DCIT, CIRCLE - 9, SURAT BECAUSE THE ASSESSEE HAD MADE COMPLIANCE TO DCIT, CIRCLE - 9, SURAT INSTEAD OF ITO WARD - 7(1) SURAT. 4.3 IN THE LIGHT OF THESE FA CTS, WE HAVE EXAMINED THE ORDER OF THE HON BLE COURT PRONOUNCED IN THE CASE OF HYNOOP FOOD AND OIL INDUSTRY (SUPRA) AND FOUND THE REASON OF THE SAID PRONOUNCEMENT WAS BASICALLY THAT THE ASSESSEE SHOULD GET A REASONABLE OPPORTUNITY TO CONTEST HIS CASE. THE HON BLE COURT HAS NOTED THAT THEY WERE CALLED UPON TO DECIDE AS TO WHETHER THE REASONS RECORDED BY THE AO EMPOWER THEM TO ASSUME THE JURISDICTION FOR ISSUANCE OF THE NOTICES TO FRAME THE ASSESSMENT ORDER U/S.143(3) R.W.S. 147 OF THE ACT. ON PERUSAL OF RECO RD , IT WAS FOUND THAT THE NOTICE ISSUED U/S.148 BY SOME OFFICER AND THE REASONS WERE RECORDED BY AN ANOTHER OFFICER. AS AGAINST THOSE FACTS, THE FACTS IN THE PRESENT APPEAL ARE THAT THE REASONS WERE RECORDED BY DCIT CIRCLE - 9 AND THEREAFTER THE NOTICE WERE ISSUED WHICH WERE DULY COMPLIED WITH BY THE ASSESSEE BEFORE THAT VERY OFFICER. WE, THEREFORE, HOLD THAT THE FACT BEING NOT IDENTICAL; HENCE THE CASE LAW AS CITED BY THE LEARNED AR IS MISPLACE D UNDER THE FACTS AND CIRCUMSTANCES AS DISCUSSED ABOVE. 4.4 LAST LY, IT IS ALSO WORTH TO NOTE THAT A REASONED ORDER WAS PASSED BY THE RESPECTED CO - ORDINATE BENCH AND THEREUPON IT WAS CON CLUDED TO RESTORE THE ISSUE BACK TO THE FILE OF THE AO TO VERIFY THE VERACITY OF THE VALUATION REPORT. THE MERITS OF THE CASE HAVE ALSO BEEN PROPERLY DISCUSSED AND DEALT WITH ; HENCE IN A SITUATION WHEN THE MERITS HA VE BEEN RESTORED BACK FOR RECONSIDERATION THEN THE ASSESSEE SHOULD NOT HAVE ANY GRIEVANCE. THE ISSUE OF CHALLENGING THE VALIDITY OF SECTION 148 HAS ALSO MA NO. 73 /AHD/201 4 IN ITA NO. 25 58 /AHD/201 3 SHRI AJAY KUMAR J. PATEL VS. DCIT, CIRCLE - 9, SURAT. FOR A.Y. 200 6 - 0 7 - 6 - BEEN DEALT WITH BY THE TRIBUNAL; THEREFORE, THAT DECISION CANNOT BE RECTIFIED U/S.254(2) OF IT ACT. WE, THEREFORE, DISMISS THE MISC. APPLICATION OF THE ASSESSEE. 5 . IN THE RESULT, THE PRESENT MISC. APPLICATION IS DISMISSED. SD/ - SD/ - ( ANIL CHATURVEDI ) ( MUKUL K R . SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 16 / 0 1 /20 1 5 PRABHAT KR. KESARWANI , SR. P . S . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD 5. , , / DR, ITAT, AH MEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD