Shri Damjii Jivabhai Hadial, Ahmedabad v. The Income tax Officer, Ward-14(2),, Ahmedabad

ITA 929/AHD/2006 | 1997-1998
Pronouncement Date: 21-05-2010 | Result: Allowed

Appeal Details

RSA Number 92920514 RSA 2006
Assessee PAN AAEPH7551H
Bench Ahmedabad
Appeal Number ITA 929/AHD/2006
Duration Of Justice 4 year(s) 1 month(s) 4 day(s)
Appellant Shri Damjii Jivabhai Hadial, Ahmedabad
Respondent The Income tax Officer, Ward-14(2),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 21-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 21-05-2010
Date Of Final Hearing 17-05-2010
Next Hearing Date 17-05-2010
Assessment Year 1997-1998
Appeal Filed On 17-04-2006
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI G.D.AGRAWAL VICE-PRESIDENT (AZ) AND SHRI MUKUL SHRAWAT JUDICIAL MEMBER AND DATE OF HEARING : 17/05/2010 DRAFTED ON: 17/0 5/2010 ITA NO.929/AHD/2006 ASSESSMENT YEAR : 1997-98 SHRI DAMJI JIVABHAI HADIAL A-32 SHUBHLAXMI FLATS VASTRAPUR AHMEDABAD VS. THE INCOME TAX OFFICER WARD-14(2) AHMEDABAD PAN/GIR NO. : AAEPH 7551 H (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI P.F.JAIN C.A. RESPONDENT BY: DR. JAYANT JAVERI SR. D.R. O R D E R PER SHRI MUKUL SHRAWAT JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XX AHMEDABA D DATED 01/02/2005 IN RESPECT OF ADDITION WHICH WAS ALLEGED TO HAVE BEEN MADE AS AN UNEXPLAINED INVESTMENT U/S.69 OF THE I.T. ACT 1961. 2. THE APPELLANT HAS RAISED SEVERAL GROUNDS HOWEV ER A PRELIMINARY OBJECTION ABOUT THE INVOCATION OF JURISDICTION U/S. 147/148 OF THE I.T. ACT 1961 WAS RAISED VIDE GROUND NO.2 AS WELL AS VIDE ADDITIONAL GROUND ; BOTH ARE REPRODUCED FOR READY REFERENCE. 2. LEARNED CIT(APPEALS) (SHE-SIC.) HAS ALSO ERRED IN UPHOLDING THE ABOVE ADDITION WITHOUT CONSIDERING THE FACT THAT TH E REASONS RECORDED U/S.148 FOR RE-ASSESSMENT AS WELL AS OTHER EVIDEN CES RELIED UPON BY THE ITA NO.929/AHD/2006 SHRI DAMJI JIVABHAI HADIAL VS. ITO ASST.YEAR - 1997-98 - 2 - ASSESSING OFFICER AND REFERRED TO IN THE ASSESSMENT ORDER WERE NOT REVEALED TO THE APPELLANT. ADDITIONAL GROUND 2. THE ASSESSMENT ORDER OUGHT TO HAVE BEEN HELD A S BAD IN LAW HAVING PASSED WITHOUT GIVING TO THE APPELLANT DURING COURS E OF ASSESSMENT PROCEEDINGS THE COPY OF REASONS RECORDED THE COPY OF EVASION PETITION COPY OF CRIMINAL COMPLAINT AND CERTIFIED COPY OF CR OSS EXAMINATION RELIED UPON BY THE ASSESSING OFFICER AS REFERRED TO IN THE ASSESSMENT ORDER. 2.1. TO RESOLVE THIS PRELIMINARY AND BASIC OBJECT ION WE HAVE PERUSED THE IMPUGNED ASSESSMENT ORDER PASSED U/S.143(3) OF THE I.T. ACT 1961 R.W.S.147 DATED 31/01/2005. ON CAREFUL READING WE FIND FORCE IN THIS OBJECTION OF THE APPELLANT. RATIONALE IN THAT THERE IS NO EVIDENCE AVAILABLE ON THE FACE OF RECORDS TO DEMONSTRATE THAT THE COPY OF THE REASONS RECORDED BEFORE THE INITIATION OF PROCEEDINGS WERE EVER COMMUNICATED TO THE ASSESSEE. THE LEARNED AUTHORISED REPRESENTATI VE OF THE ASSESSEE HAS ALSO DRAWN OUR ATTENTION ON THE ORDER OF THE FIRST APPELLATE AUTHORITY TO DISPLAY THAT THE SAID ORDER REMAINED SILENT AND TH E GRIEVANCE REMAINED UNCURED IN RESPECT OF THIS GRIEVANCE. FROM THE SI DE OF THE REVENUE LEARNED DEPARTMENTAL REPRESENTATIVE HAS PLACED RELI ANCE ON THE ORDERS OF THE REVENUE AUTHORITIES. 3. ON HEARING BOTH THE SIDES WE CAN COMMENT THA T THIS ISSUE OF FURNISHING OF REASONS FOR ISSUANCE OF NOTICE U/S.14 8 OF THE I.T. ACT 1961 NOW STOOD SETTLED BY THE DECISION OF HON'BLE SUPREM E COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. VS. ITO & OTHERS RE PORTED AS (2003) 259 ITR 19 (SC) WHEREIN OBSERVATION WAS MADE AS FO LLOWS:- WE SEE NO JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER UNDER CHALLENGE. HOWEVER WE CLARIFY THAT WHEN A NOTICE U NDER SECTION 148 OF ITA NO.929/AHD/2006 SHRI DAMJI JIVABHAI HADIAL VS. ITO ASST.YEAR - 1997-98 - 3 - THE INCOME-TAX ACT IS ISSUED THE PROPER COURSE OF ACTION FOR THE NOTICEE IS TO FILE A RETURN AND IF HE SO DESIRES TO SEEK R EASONS FOR ISSUING NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS THE NOTICEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IN THE INSTANT CASE AS THE REASONS HAVE BEEN DISCLOSED IN THESE PROCEEDING S THE ASSESSING OFFICER HAS TO DISPOSE OF THE OBJECTIONS IF FILED BY PASSING A SPEAKING ORDER BEFORE PROCEEDING WITH THE ASSESSMENT IN RES PECT OF THE ABOVESAID FIVE ASSESSMENT YEARS. 4. IN ORDER TO RESOLVE THIS OBJECTION WHICH IS IMPO RTANT TO DETERMINE THE INVOCATION OF JURISDICTION WE DEEM IT PROPER F IRST TO SETTLE THE SAME AND FOR THAT PURPOSE WE HEREBY RESTORE THIS FUNDAM ENTAL DISPUTE BACK TO THE STAGE OF THE ASSESSING OFFICER TO BE RESOLVED I N THE LIGHT OF THE DIRECTIONS AND OBSERVATIONS OF THE HON'BLE SUPREME COURT. ONCE WE ARE RESTORING THIS GROUND BACK TO THE STAGE OF THE ASSE SSING OFFICER FOR DE NOVO ADJUDICATION THEREFORE REST OF THE GROUND PERTAI NING TO THE QUANTUM ADDITION FOR THE TIME BEING HAVE BECOME OTIOSE RATH ER INDOLENT THEREFORE ONLY TO BE DECIDED ONCE THIS PRELIMINARY AS ALSO F UNDAMENTAL OBJECTION GETS RESOLVED. WITH THE RESULT THE RELEVANT GROUND MAY BE TREATED AS ALLOWED ONLY FOR STATISTICAL PURPOSES. 5. IN THE RESULT ASSESSEES APPEAL IS ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 21 ST MAY /2010. SD/- SD/- ( G.D.AGRAWAL ) ( MUKUL SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED 21/ 05 /2010 T.C. NAIR SR. PS ITA NO.929/AHD/2006 SHRI DAMJI JIVABHAI HADIAL VS. ITO ASST.YEAR - 1997-98 - 4 - COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XX AHMEDABAD 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD