Shri Habib H.Halani, Vapi v. The ACIT.,Vapi Circle,, Vapi

CO 109/AHD/2013 | 2008-2009
Pronouncement Date: 31-07-2015 | Result: Allowed

Appeal Details

RSA Number 10920523 RSA 2013
Assessee PAN AAJPH1175J
Bench Ahmedabad
Appeal Number CO 109/AHD/2013
Duration Of Justice 2 year(s) 2 month(s) 18 day(s)
Appellant Shri Habib H.Halani, Vapi
Respondent The ACIT.,Vapi Circle,, Vapi
Appeal Type Cross Objection
Pronouncement Date 31-07-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 31-07-2015
Date Of Final Hearing 23-07-2015
Next Hearing Date 23-07-2015
Assessment Year 2008-2009
Appeal Filed On 13-05-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD BEFORE SHRI G.D. AGRAWAL VICE PRESIDENT AND SHRI KUL BHARAT JUDICIAL MEMBER ./ ././ ./ ITA NOS. 770 TO 772/AHD/2013 AND CO NOS. 107 TO 109/AHD/2013 / ASSESSMENT YEAR: 2006-07 TO 2008-09 ACIT VAPI CIRCLE VAPI V/S. SHRI HABIB H. HALANI B/302 NEW BUILDING BANI FATIMI CO- OP HOUSING SOC. KABRASTAN ROAD VAPI PAN : AAJPH 1175 J / // / (APPELLANT) / // / (RESPONDENT / CROSS-OBJECTOR) REVENUE BY : SHRI NARENDRA SINGH SR. DR ASSESSEE(S) BY : SHRI S.N. SOPARKAR AR !' # $%&/ // / DATE OF HEARING : 29/07/2015 '( # $%& / // / DATE OF PRONOUNCEMENT: 31/07/2015 )* )* )* )*/ // / O R D E R PER G.D. AGRAWAL VICE PRESIDENT: THESE ARE THE APPEALS FILED BY THE REVENUE AND CROS S-OBJECTIONS FILED BY THE ASSESSEE AGAINST THREE SEPARATE ORDERS OF LE ARNED COMMISSIONER OF INCOME-TAX (APPEALS) VALSAD ALL DATED 31.12.2012 PASSED IN ASSESSMENT YEARS 2006-07 2007-08 AND 2008-09. SINCE THESE A PPEALS AND CROSS- OBJECTIONS INVOLVE COMMON ISSUES THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. GROUND NO.1 OF THE CROSS-OBJECTION IN ALL THE T HREE YEARS READS AS UNDER:- LD. CIT(A) OUGHT TO HAVE HELD THAT LD. AO ERRED IN LAW AND ON FACTS IN FRAMING ASSESSMENT U/S 144 R.W.S. 147 R.W.S. 142 (2 A) OF THE ACT. LD. CIT(A) FAILED TO APPRECIATE THAT THERE BEING NO RE ASON TO BELIEF AS REQUIRED UNDER SECTION 147 THE ORDER PASSED BY AO IS WITHOUT JURISDICTION AND BAD IN LAW. ITA NOS.770 TO 772 & CO 107 TO 109 AHD 2013 ACIT VS. SHRI HABIB H HALANI AYS 2006-07 2007-08 & 2008-09 2 3. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE REFERRED TO THE REASONS FOR REOPENING OF ASSESSMENT AND POINTED OUT THAT IN THE REASONS RECORDED THE ASSESSING OFFICER HAS MEN TIONED THAT THE ASSESSEE IS A PARTNER IN THE FIRM M/S. BHOOMI TRACTOR SALES AND SERVICES. THERE IS HUGE CASH DEPOSIT IN THE BANK ACCOUNT OF THE FIRM A ND THEREFORE IN THE CASE OF THE FIRM THE CREDITWORTHINESS AND GENUINENESS O F CASH CREDIT REFLECTED IN THE BOOKS OF ACCOUNTS COULD NOT BE PROVED. ON THIS SOLITARY GROUND HE REOPENED THE ASSESSMENT OF THE PARTNER AS THE ASSES SEE IS ALSO ONE OF THE PARTNERS OF THE FIRM. THE LD. COUNSEL STATED THAT UNDER THE SCHEME OF INCOME-TAX ACT THE PARTNERSHIP FIRM IS A SEPARATE LEGAL ENTITY. HE ALSO POINTED OUT THAT THE ASSESSMENT OF THE FIRM HAS ALR EADY BEEN REOPENED. HE THEREFORE SUBMITTED THAT FOR VERIFICATION OF THE B ANK ACCOUNT OF THE FIRM OR VERIFICATION OF THE CASH CREDIT IN THE BOOKS OF THE FIRM THE ASSESSMENT OF THE PARTNER CANNOT BE REOPENED. HE THEREFORE SUBMITT ED THAT SINCE THERE IS NO ESCAPEMENT OF INCOME IN THE CASE OF THE FIRM THE R EOPENING OF ASSESSMENT CANNOT BE SAID TO BE VALID. 4. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THA T THE REASONS RECORDED FOR REOPENING OF ASSESSMENT READ AS UNDER:- THE REOPENING OF ASSESSMENT U/S 147 OF THE I.T. AC T 1961 HAS BEEN MADE ON THE FOLLOWING REASONS. THE ASSESSEE IS A PARTNER IN THE FIRM M/S. BHOOMI T RACTOR SALES & SERVICES. THE FIRM IS ENGAGED IN THE DEALERSHIP BUSINESS OF T RACTORS AND AGRICULTURAL EQUIPMENTS. ON VERIFICATION IT IS NOTICED THAT IN THE BANK ACCOUNT OF THE FIRM THE HUGE CASH AMOUNT HAS BEEN DEPOSITED FROM A.Y. 2006-07 TO AY 2009-10 AND IN THE CASE OF FIRM CREDITWORTHINESS AN D GENUINENESS OF CASH CREDIT REFLECTED IN THE BOOKS OF ACCOUNTS COULD NOT BE PROVED. SINCE THE ASSESSEE IS ALSO ONE OF THE PARTNERS OF SAID FIRM A ND TO THE EXTENT OF SHARE OF ITA NOS.770 TO 772 & CO 107 TO 109 AHD 2013 ACIT VS. SHRI HABIB H HALANI AYS 2006-07 2007-08 & 2008-09 3 PROFIT THE ASSESSEE IS ALSO LIABLE TO PROVE THE SAM E. THEREFORE I HAVE REASON TO BELIEVE THAT INCOME OF MORE THAN RS.1 LAC IS ESCAPE D ASSESSMENT AND CASE IS FIT FOR REOPENING U/S 147 OF THE ACT BY ISSUING NOTICE U/S 148 OF THE ACT 6. FROM THE ABOVE IT IS EVIDENT THAT THE ASSESSING OFFICER HAS NOTED THAT THE ASSESSEE IS A PARTNER IN THE FIRM M/S. BHOOMI T RACTOR SALES AND SERVICES. ON VERIFICATION OF THE BANK ACCOUNT OF THE FIRM IT WAS FOUND THAT THERE WAS HUGE CASH DEPOSIT IN THE SAID ACCOUNT. AS PER ASSE SSING OFFICER THE CREDITWORTHINESS AND GENUINENESS OF CASH CREDIT REF LECTED IN THE BOOKS OF ACCOUNTS OF THE FIRM COULD NOT BE PROVED. THUS TH E ASSESSING OFFICER DOUBTED EITHER ABOUT THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE FIRM OR THE GENUINENESS OF THE CASH CREDIT REFLECTE D IN THE BOOKS OF ACCOUNTS OF THE FIRM. AS PER ASSESSING OFFICER SINCE THE AS SESSEE IS PARTNER OF THE FIRM TO THE EXTENT OF HIS SHARE THE ASSESSEE IS L IABLE TO PROVE THE SAME. THUS AS PER ASSESSING OFFICER THE ASSESSEE BEING A PARTNER OF THE FIRM IS LIABLE TO PROVE THE HUGE CASH DEPOSIT IN THE BANK A CCOUNT OF THE FIRM OR THE CASH CREDIT IN THE ACCOUNTS OF THE FIRM. THERE CAN NOT BE ANY DISPUTE TO THIS PROPOSITION OF THE ASSESSING OFFICER THAT THE ASSES SEE BEING A PARTNER OF THE FIRM IS LIABLE TO PROVE THE CASH DEPOSIT IN THE BAN K ACCOUNT OF THE FIRM OR THE CASH CREDIT IN THE BOOKS OF ACCOUNTS OF THE FIRM; B UT THAT IS TO BE EXAMINED IN THE CASE OF THE FIRM. UNDISPUTEDLY UNDER THE IN COME-TAX ACT THE PARTNERSHIP FIRM AND THE PARTNERS ARE ASSESSED TO T AX SEPARATELY. THEREFORE FOR VERIFICATION OF THE HUGE CASH DEPOSIT IN THE BA NK ACCOUNT OF THE FIRM OR THE CASH CREDIT IN THE BOOKS OF ACCOUNTS OF THE FIR M THE ASSESSMENT OF THE PARTNERS CANNOT BE REOPENED. WHETHER THERE IS ANY ESCAPEMENT OF INCOME OR NOT IN THE CASE OF THE FIRM WOULD ONLY AFFECT TH E ASSESSMENT OF THE FIRM AND THEREFORE FOR THE ALLEGED ESCAPEMENT OF INCOME OF THE PARTNERSHIP FIRM THE ASSESSMENT OF PARTNER CANNOT BE REOPENED. IN V IEW OF THE ABOVE WE HOLD THE REOPENING OF THE ASSESSMENT OF THE PARTNER TO BE INVALID BECAUSE NO CASE HAS BEEN MADE OUT FOR THE ESCAPEMENT OF INC OME OF THE PARTNER. WE ITA NOS.770 TO 772 & CO 107 TO 109 AHD 2013 ACIT VS. SHRI HABIB H HALANI AYS 2006-07 2007-08 & 2008-09 4 THEREFORE HOLD THAT THE REOPENING OF ASSESSMENT IS NOT VALID; ACCORDINGLY THE SAME IS QUASHED. ONCE THE REOPENING OF ASSESSME NT IS HELD TO BE INVALID THE CONSEQUENTIAL ASSESSMENT ORDER PASSED U/S 144 R .W.S. 147 IS ALSO QUASHED. 7. SINCE WE HAVE QUASHED THE ASSESSMENT ORDER THE ADDITIONS MADE BY THE ASSESSING OFFICER IN THE SAID ASSESSMENT ORDER WHICH IS CHALLENGED ON MERIT IN THE REVENUES APPEAL AND ALSO IN THE OTHER GROUNDS OF THE ASSESSEES CROSS-OBJECTION DO NOT SURVIVE FOR ADJUDICATION BE CAUSE THE ASSESSMENT ITSELF HAS BEEN QUASHED. 8. IN VIEW OF ABOVE ALL THE THREE CROSS-OBJECTIONS FILED BY THE ASSESSEE ARE DEEMED TO BE ALLOWED AND THE REVENUES APPEALS ARE DEEMED TO BE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 31 ST JULY 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 31/07/2015 BIJU T. PS )* # $+ )+$ )* # $+ )+$ )* # $+ )+$ )* # $+ )+$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ !- / CONCERNED CIT 4. !- ( ) / THE CIT(A) 5. +01 $ / DR ITAT AHMEDABAD 6. 13 4' / GUARD FILE . )*! )*! )*! )*! / BY ORDER TRUE COPY 5 55 5/ // / 6 6 6 6 ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD