Shri P.N. Nagpal,HUF, Ahmedabad V. The Dy.CIT.,Circle-9, Ahmedabad

MA 92/AHD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7324 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 31-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K VOHRA SRDR
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Reopening of assessment; Depreciation
• Section: 148

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD , .. !'#, $ BEFORE SHRI MAKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.K.GARODIA, ACCOUNTANT MEMBER %% & (MISC. APPLICATION) NO.91- 92 /AHD/2011 (ARISING OUT ITA NO.3310- 3311/AHD/2009) & ' (' / ASSESSMENT YEARS:-2005-06 & 2006-07 P.N.NAGPAL, HUF PROP. OF ASOPALAV EYE HOSPITAL, NR. SHAHIBAUG UNDER BRIDGE, SHAHIBAUG, AHMEDABAD PAN NO.AABHP8805M & & & & / V/S . DY. COMMISSIONER OF INCOME-TAX, CIRCLE-9, AHMEDABAD (ORIGINAL APPELLANT) (ORIGINAL R ESPONDENT) (APPELLANT) .. (RESPONDENT) *+/ BY APPELLANT SHRI MEHUL K PATEL, AR ,-*+ . / / BY RESPONDENT SHRI R.K. VOHRA, SR-DR &0 . 1$ / DATE OF HEARING 09-12-2011 2!( . 1$ /DATE OF PRONOUNCEMENT 16-12-2011 3 3 3 3 / / / / ORDER .. !'#, $ /PER A.K.GARODIA, ACCOUNTANT MEMBER:- THESE TWO MISCELLANEOUS APPLICATION (MA) ARE FILED BY THE ASSESSEE AGAINST THE COMBINED ORDER OF THE TRIBUNAL FOR ASSESSMENT Y EARS 2005-06 AND 2006-07. IT IS CONTENDED IN THE MA IN A.Y 2005-06 THAT THERE WAS O NE GROUND RELATING TO VALIDITY OF REOPENING OF ASSESSMENT U/S.148 OF THE INCOME-TAX A CT, 1961 AND THE SECOND GROUND ON MERIT WAS WHETHER THE REPAIR EXPENSES ARE REVENUE OR CAPITAL EXPENSES. IT MA NO.91-92/AHD/2011 P.N.NAGPAL HUF V. DCIT CIR-9 ABD PAGE 2 IS ALSO SUBMITTED THAT IN NEXT YEAR A.Y. 2006-07, T HERE WAS ONLY ONE ISSUE REGARDING MERIT OF REPAIR EXPENSES WHETHER REVENUE OR CAPITAL AND THERE WAS NO ISSUE OF REOPENING OF ASSESSMENT. IT IS ALSO SUBMITTED IN TH E MA THAT AFTER HEARING THE LD. AR OF THE ASSESSEE ON THE PRELIMINARY GROUND REGARDING REOPENING OF ASSESSMENT U/S 148 OF THE ACT, THE BENCH HAD INDICATED THAT THIS M ATTER HAS TO BE RESTORED TO THE FILE OF ASSESSING OFFICER SINCE PROPER OPPORTUNITY WAS N OT GRANTED TO FILE OBJECTION AGAINST REOPENING OF ASSESSMENT. IT IS ALSO SUBMITT ED IN THE MA THAT AT THIS JUNCTURE IT WAS POINTED OUT BY THE LD. AR OF THE ASSESSEE, SHRI MEHUL K PATEL, ADVOCATE THAT LD. CIT(A) HAS ALSO DECIDED GROUND REGARDING MERIT AND HENCE, IF THE PRELIMINARY ISSUE IS RESTORED BACK TO THE FILE OF AO THEN WHAT WILL BE STATUS ON MERIT IN BOTH THESE APPEALS. IT IS ALSO SUBMITTED THAT AS PER THE LD. A R OF THE ASSESSEE, IT WAS INDICATED BY THE BENCH AT THAT POINT OF TIME THAT THE MATTER ON MERIT WILL ALSO BE RESTORED TO THE FILE OF AO IN BOTH THE YEARS FOR A FRESH DECISION. BUT AS PER IMPUGNED TRIBUNAL ORDER, ONLY THE PRELIMINARY ISSUE REGARDING VALIDITY OF RE OPENING OF ASSESSMENT PROCEEDINGS HAD BEEN RESTORED BY THE TRIBUNAL TO THE FILE OF AO FOR A FRESH DECISION BUT REGARDING THE MERIT, IT IS HELD BY THE TRIBUNAL IN PARA-6 OF THE TRIBUNAL ORDER THAT OTHER GROUNDS OF APPEAL TAKEN BY ASSESSEE HAS BECOME INFRUCTUOUS AND ACADEMIC IN NATURE. IT IS ALSO SUBMITTED THAT IN A.Y 2006-07 THE ISSUE REGARD ING REPAIR EXPENSES WHETHER REVENUE OR CAPITAL HAS BEEN DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE ALTHOUGH THE ALTERNATIVE CLAIM OF THE ASSESSEE FOR GRANTING DEPRECIATION HAS BEEN ALLOWED BY THE TRIBUNAL. IT IS THE SUBMISSION IN THE MA THAT I N THE NEXT YEAR, THE ISSUE ON MERIT WAS DECIDED BY THE TRIBUNAL WITHOUT HEARING ANY SID E BECAUSE AT THE TIME OF HEARING, IT WAS GIVEN TO UNDERSTAND THAT MATTER WILL BE REST ORED BACK TO THE FILE OF AO IN BOTH THE YEARS AND THEREFORE, THE TRIBUNAL ORDER SHOULD BE RECALLED AND THE APPEAL SHOULD BE DECIDED AFRESH AFTER HEARING BOTH THE SIDES. IN COURSE OF HEARING BEFORE US, LD. AR OF THE ASSESSEE, SHRI PATEL, ADVOCATE APPEARED A ND REITERATED THE SAME ARGUMENTS WHICH ARE MADE BY ASSESSEE IN MA. HE ALSO SUBMITTED THAT HE WAS PRESENT AT THE TIME OF HEARING OF APPEAL AND HE ALS O SUBMITTED THAT AS A TOKEN OF CONFIRMING THE CONTENTION RAISED BY THE ASSESSEE IN THE MA, HE HAS ALSO SINGED ON THE LAST PAGE OF THE MA AND HE IS ALSO MAKING A STA TEMENT AT BAR THAT CONTENTION RAISED IN THE MA ARE CORRECT. 2. AS AGAINST THIS, IT WAS SUBMITTED BY LD. SR-DR O F THE REVENUE THAT THERE IS NO MISTAKE IN THE TRIBUNAL ORDER BECAUSE IN A.Y. 20 05-06, IT IS HELD BY THE TRIBUNAL MA NO.91-92/AHD/2011 P.N.NAGPAL HUF V. DCIT CIR-9 ABD PAGE 3 THAT THE ASSESSING OFFICER SHOULD FIRST DECIDE THE PRELIMINARY ISSUE REGARDING REOPENING AS PER THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF GKN DRIVESHAFT V. ITO (2003) AS REPORTED IN 259 ITR 19 (SC) AND THEREAFT ER, PROCEEDING THE MATTER AS PER LAW AND HENCE, IN THAT YEAR, THE ISSUE HAS B EEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER ON MERIT ALSO. IT WAS ALSO SUBMIT TED THAT IN THE NEXT YEAR, THE TRIBUNAL HAS NOTED THE ARGUMENT OF BOTH THE SIDES A ND THEREAFTER DECIDED THE ISSUE AND THEREFORE THERE IS NO MISTAKE IN THE TRIBUNAL O RDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE FIND THAT REGARDING A.Y 2005-06, IT IS STATED BY THE TRIBUNAL IN PARA-5 OF THE ORDER THAT AFTER DECIDING THE OBJECTION OF THE ASSESSEE REGARDING REOPENING THE A SSESSMENT IN THE LIGHT OF THE PROCEDURE LAID DOWN BY HONBLE APEX COURT IN THE CA SE OF GKN DRIVESHAFT (SUPRA) THE ASSESSING OFFICER SHOULD PROCEED THE MATTER AS PER LAW AND THEREAFTER, IT IS HELD BY THE TRIBUNAL THAT BECAUSE OF THIS DECISION, OTHER G ROUND RAISED BY THE ASSESSEE HAVE BECOME INFRUCTUOUS. WHEN BOTH THESE LINES ARE TOGET HER, IT IS CLEAR THAT IN THIS YEAR, THE MATTER ON MERIT IS ALSO RESTORED BY THE TRIBUNA L TO THE FILE OF AO FOR FRESH DECISION, IF IT IS FOUND BY THE AO THAT OBJECTIONS RAISED BY THE ASSESSEE AGAINST REOPENING OF ASSESSMENT ARE NOT VALID. 4. NOW, WE CONSIDER THE ISSUE INVOLVED IN THE NEXT YEAR I.E. A.Y. 2006-07. WE FIND THAT THE ISSUE ON MERIT IS IDENTICAL IN BOTH T HE YEARS AND SINCE, IN THE EARLIER YEAR I.E. A.Y. 2005-06, THE MATTER IS RESTORED BACK BY T HE TRIBUNAL TO THE FILE OF AO FOR FRESH DECISION AND IN VIEW OF THIS ARGUMENT OF THE LD. AR OF THE ASSESSEE THAT NO HEARING HAS TAKEN PLACE ON MERIT I.E. FOR THE NEXT YEAR, WE FEEL THAT NORMALLY IN THE NEXT YEAR ALSO, THE MATTER SHOULD GO BACK TO THE FI LE OF AO FOR FRESH DECISION IN THE LIGHT OF DECISION ON SAME ISSUE IN EARLIER YEAR IF THE MATTER IS RESTORED BACK IN EARLIER YEAR. ALTHOUGH WE DO NOT ENCOURAGE SUCH TYPE OF ARG UMENTS THAT AT THE TIME OF HEARING, INDICATION WAS GIVEN BY THE BENCH BUT THE DECISION TAKEN IN THE ORDER IS DIFFERENT AND THAT TOO WHEN THE CONCERNED MEMBERS A RE TRANSFERRED OUT BUT THERE CANNOT BE A STRAIGHT JACKET FORMULA TO REJECT ALL S UCH ARGUMENTS IN ALL THE CASES, PARTICULARLY WHEN IN THE EARLIER YEAR AS PER THE SA ME TRIBUNAL ORDER, SIMILAR ISSUE HAS BEEN RESTORED BACK BY THE TRIBUNAL TO THE FILE OF A SSESSING OFFICER FOR FRESH DECISION THEN NORMALLY IT DOES NOT STAND TO LOGIC TO DECIDE THE SAME ISSUE IN THE NEXT YEAR BY THE SAME ORDER BECAUSE IT AMOUNTS TO AN ADVANCE DEC ISION ON A MATTER WHICH IS MA NO.91-92/AHD/2011 P.N.NAGPAL HUF V. DCIT CIR-9 ABD PAGE 4 RESTORED BACK TO THE FILE OF AO FOR FRESH DECISION. UNDER THIS FACTUAL POSITION, WE FEEL THAT TRIBUNAL ORDER FOR THE NEXT YEAR SHOULD BE REC ALLED AND THE APPEAL SHOULD BE DECIDED AFRESH AFTER HEARING BOTH THE SIDES. ACCORD INGLY, WE SET ASIDE THE TRIBUNAL ORDER IN RESPECT OF ITA NO.3311/AHD/2009 FOR ASSESSMENT YEAR 2006-07 AND DIRECT THE REGISTRY TO FIX THE APPEAL FOR HEARING IN DUE C OURSE. 5. IN THE RESULT, MA OF ASSESSEE FOR A.Y 2005-06 IS DI SMISSED WHEREAS MA OF ASSESSEE FOR A.Y. 2006-07 IS ALLOWED. 4 3 . 2!( '&5 16 / 12 /2011 ! $ 9 . 0 HIS ORDER PRONOUNCED IN OPEN COURT ON 16/12/ 2011 . SD/- SD/- ( ) ($ ) (MUKUL KR. SHRAWAT) (A.K .GARODIA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, *DKP 3 3 3 3 . .. . ,% ,% ,% ,% <%( <%( <%( <%( / COPY OF ORDER FORWARDED TO:- 1. *+ / APPELLANT 2. ,-*+ / RESPONDENT 3. > / CONCERNED CIT 4. >- / CIT (A) 5. %B ,& , , / DR, ITAT, AHMEDABAD 6. #' D4 / GUARD FILE. BY ORDER/ 3 , /TRUE COPY/ E/ F ,