THE ITO, WARD-5(3)(1), AHMEDABAD V. SHRI DHARMENDRA CHAMPAKLAL SHAH, AHMEDABAD

MA 114/AHD/2022

AI Insights

The case revolves around a Miscellaneous Application filed by the Revenue against the order of the Income Tax Appellate Tribunal, which had allowed the appeal of Shri Dharmendra Champaklal Shah concerning the assessment year 2015-16. The Revenue contended that the Tribunal had overlooked a relevant judgment from the Hon'ble Kolkata High Court in the case of Swati Bajaj, which dealt with an identical issue. However, the Tribunal found that the facts of the present case were distinct from those in Swati Bajaj, and thus, the cited decision was not applicable. The Tribunal also noted the inconsistency in the Revenue's approach, as a similar application was not filed in a related case involving Rahul Dharmendra Shah, leading to the dismissal of the Revenue's application.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 102632 (ITAT-AHMEDABAD)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-04-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Other Referred Cases: PCIT vs. MA No. 114/Ahd/2022 [ITO vs. Shri Dharmendra Champaklal Shah] A.Y. 2015-16 - Swati Bajaj & Ors. in IA No. GA/2/2022 in ITAT/6/2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVAN LIMBASIYA
• Assessee Lawyers: CHETAN AGARWAL
• Section: 263

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD BEFORE SHRI T.R. SENTHIL KUMAR, JUDICIAL MEMBER & SHRI NARENDRA PRASAD SINHA, ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION No. 114/Ahd/2022 (In ITA No.72/Ahd/2022) (Ǔनधा[रण वष[ / Assessment Year :2015-16) Shri Dharmendra Champaklal Shah 14, Chandra Prakash Society, Vibhag-2, Kankariya, Ahmedabad, Gujarat - 380022 बनाम/ Vs. The ITO Ward-5(3)(1), Ahmedabad èथायी लेखा सं./जीआइआर सं./PAN/GIR No. : ABHPS5605B (Respondent) .. (Applicant) Assessee by : Shri Chetan Agarwal, A.R. Revenue by : Shri Kavan Limbasiya, Sr. DR Date of Hearing 04/04/2025 Date of Pronouncement 16/04/2025 O R D E R PER SHRI NARENDRA PRASAD SINHA, AM: The present Miscellaneous Application is filed by the Revenue in respect of the order of this Tribunal in the case of Sh. Dharmendra Champaklal Shah vide ITA No. 72/Ahd/2022, dated 20.07.2022. 2. The contention of the Revenue is that the Tribunal had allowed the appeal of the assessee without considering the judgment of Hon’ble Kolkata High Court in the case of PCIT vs. MA No. 114/Ahd/2022 [ITO vs. Shri Dharmendra Champaklal Shah] A.Y. 2015-16 - 2 – Swati Bajaj & Ors. in IA No. GA/2/2022 in ITAT/6/2022 delivered on 14.06.2022 on the identical issue which was brought to the notice of the Tribunal in the written submission of Ld. CIT.DR dated 15.06.2022. Shri Kavan Limbasiya, Ld. Sr. DR submitted that the issue involved in the case of Swati Bajaj (supra) was identical to the facts adjudicated in the case of Dharmendra Champaklal Shah. Further that, the Ld. CIT. DR had placed reliance on this decision in the course of hearing as well as brought this order to the notice of the Tribunal in his written submission dated 15.06.2022. He submitted that the non- consideration of decision of Hon’ble Kolkata High Court in the case of Swati Bajaj (supra) was a mistake apparent from record. He, therefore, requested to recall the order dated 20.07.2022 and re-adjudicate the matter afresh after taking into account the decision in the case of Swati Bajaj (supra). 3. Per contra, Shri Chetan Agarwal, the Ld. AR of the assessee submitted that the Ld. ITAT had decided the appeal after considering the facts of the case, which was different from the facts of Swati Bajaj (supra). Therefore, there was no mistake in the order of the Tribunal. 4. We have considered the rival submissions. It is found that vide order dated 20.07.2022, a common order was passed in respect of ITA No.75/Ahd/2020 in the case of Rahul Dharmendra Shah and in ITA No.72/Ahd/2020 in the case of Shri Dharmendra Champaklal Shah and the appeal of both the assessees were allowed. The Revenue has filed Miscellaneous Application in MA No. 114/Ahd/2022 [ITO vs. Shri Dharmendra Champaklal Shah] A.Y. 2015-16 - 3 – case of Dharmendra Champaklal Shah only and no such Miscellaneous application has been filed in the case of Rahul Dharmendra Shah, in spite of the fact that both the cases were under the jurisdiction of same PCIT i.e. PCIT-5, Ahmedabad. A specific query was raised by the Bench in this regard in the course of hearing, but no explanation has forthcome as to why Miscellaneous application has been filed only in this case and not in other case. Thus, when the decision of the Tribunal was accepted in the case of Rahul Dharmendra Shah and no mistake was pointed out in that order, the present miscellaneous application is liable to be dismissed for this reason alone. It is further found that the issue involved in this case was order under Section 263 of the Income Tax Act, 1961 passed by the PCIT. According to the PCIT, the assessment order was passed without proper enquiry into the matter. On the other hand, the Tribunal after considering the evidences brought on record had given a categorical finding that the AO had made enquiry in the matter and after considering the materials brought on record, had accepted the genuineness of the claim of the assessee. Thus, the order of the AO was not found erroneous and prejudicial to the interest of the revenue. On the basis of these facts, the Tribunal had allowed the appeal of the assessee. Merely because the decision of Swati Bajaj (supra), as relied upon by the Revenue, was not quoted in the order of the Tribunal, it cannot be considered as mistake apparent from the record. The facts in the case of Swati Bajaj were different from the facts in the present case as discussed in the order and, therefore, reference to the decision of Swati Bajaj (supra) was not found necessary. MA No. 114/Ahd/2022 [ITO vs. Shri Dharmendra Champaklal Shah] A.Y. 2015-16 - 4 – 5. In view of the above facts, we do not find any mistake in the order of the Tribunal in ITA No. 72/Ahd/2020 dated 20.07.2022. 6. In the result, the Miscellaneous Application filed by the Revenue is dismissed. This Order pronounced on 16/04/2025 Sd/- Sd/- (T.R. SENTHIL KUMAR) (NARENDRA PRASAD SINHA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 16/04/2025 S. K. SINHA True Copy आदेश कȧ ĤǓतͧलͪप अĒेͪषत/Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant 2. Ĥ×यथȸ / The Respondent. 3. संबंͬधत आयकर आयुÈत / Concerned CIT 4. आयकर आयुÈत(अपील) / The CIT(A)- 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड[ फाईल / Guard file. आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलȣय अͬधकरण, अहमदाबाद / ITAT, Ahmedabad "