Maltiben Manilal Shah, Ahmedabad v. The Income tax Officer,Ward-15(3),, Ahmedabad

ITA 1088/AHD/2010 | 2007-2008
Pronouncement Date: 16-07-2010 | Result: Allowed

Appeal Details

RSA Number 108820514 RSA 2010
Assessee PAN AIHPS0237N
Bench Ahmedabad
Appeal Number ITA 1088/AHD/2010
Duration Of Justice 3 month(s) 7 day(s)
Appellant Maltiben Manilal Shah, Ahmedabad
Respondent The Income tax Officer,Ward-15(3),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 16-07-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 16-07-2010
Date Of Final Hearing 16-07-2010
Next Hearing Date 16-07-2010
Assessment Year 2007-2008
Appeal Filed On 08-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC AHMEDABAD BENCH SMC AHMEDABAD BENCH SMC AHMEDABAD BENCH SMC BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI SHRI N.S.SAINI ACCOUNTANT MEMBER SHRI N.S.SAINI ACCOUNTANT MEMBER SHRI N.S.SAINI ACCOUNTANT MEMBER SHRI N.S.SAINI ACCOUNTANT MEMBER DATE OF HEARING :19-7-10 DRAFTED ON: 1 9-7-10 ITA NO.1088/AHD/2010 ASSESSMENT YEAR: 2007-08 MALTIBEN M. SHAH19 SUSHASNAGAR SOCIETY NR. DINESH HALL ASHRAMROAD AHMEDABAD- 380 009. VS THE INCOME TAX OFFICER WARD - 15(3)VASANT NATURE VIEW BLDG. ASHRAMROAD AHMEDABAD. PAN/GIR NO. : AIHPS 0237N (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI R.C.SHAH. RESPONDENT BY: SHRI B.D.BAROT D.R. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS APPEAL IS FILED BY THE ASSESSEE AGAINST ORDER OF TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXI AHMEDABAD DA TED 18-02-2010. 2 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) ERRED IN CONFIRMING THE ORDER PASSED BY THE LEARNED ASSESSING OFFI CER UNDER SECTION 143(3) OF THE I.T. ACT ALLOWING THE INDEXAT ION W.E.F. THE DATE OF ISSUE OF SHARES ON 29-12-1990 ON SUB-DIVISION OF THE SOCI ETY WHICH DID NOT AFFECT THE OWNERSHIP AND THE POSSESSION OF THE APPEL LANT SINCE 13- 6-1988 BEING THE DATE OF FULL PAYMENT AND VESTING OF THE OWNERSHIP AND THE POSSESSION IRRESPECTIVE OF THE ISSUE OF THE SHARE CERTIFICATE LATER ON BY THE NEW SOCIETY ON SUB-DIVISION WHICH WAS A N INTERNAL MATTER OF THE BUILDER/DEVELOPER. IT IS SUBMITTED THA T THE APPELLANT IS ENTITLED TO CLAIM INDEXATION OF THE COST W.E.F. 13-6 -1988 UNDER THE EXPLANATION(III) OF SECTION 48 AND NOT 29-12-1990 A S HELD BY THE LEARNED ASSESSING OFFICER AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WITHOUT GIVING ANY REASON/JUSTI FICATION AND THEREFORE THE INDEXED COST BE ADOPTED AT RS. 2 85 46 6/- AS AGAINST RS.2 30 954/- ADOPTED BY THE LEARNED ASSESSING OFFICER AND THAT THE ADDITION OF RS. 26 418 MADE BY THE LEARNED ASSESSING OFF ICER AS TAXABLE LONG TERM CAPITAL GAIN BE DELETED. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) ERRED IN CONFIRMING THE ORDER OF THE LEARNED ASSESSING OFFICER W ITHOUT DEALING WITH THE AFORESAID PROVISION AND THE WRITTEN SUBMISSIONS AND WITHOUT GIVING ANY REASON ALTHOUGH HE WAS DUTY BOUND AND THE REBY CAUSED HARDSHIP TO THE APPELLANT AND THE APPELLANT WAS FORC ED TO PAY THE APPEAL FILING FEES OF RS.4614. IT IS SUBMITTED THAT TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE DIRECTED TO PA Y THIS COST FOR HIS OMISSION TO DO THE DUTY IN THE INTEREST OF JUSTICE. 3. AT THE OUTSET THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY SIMPLY OBSERVING THA T HE IS NOT CONVINCED WITH THE WRITTEN SUBMISSIONS FILED BY THE LEA RNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. HE HAS GIVEN NO REASONS FO R NOT ACCEPTING THE WRITTEN SUBMISSIONS OF THE ASSESSEE. THEREFORE THE OR DER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IS A NON SPEAKING O RDER WHICH CANNOT BE SUSTAINED IN; LAW. THEREFORE THE ORDER OF THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS) SHOULD BE SET ASIDE AND THE APPEAL SHOULD BE RESTORED TO HIS FILE WITH A DIRECTION TO PASS A SPEAKING ORDER. 3 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO AGREE D WITH THE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE OF T HE ASSESSEE. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORDS I FIND THAT THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS) HAS AFTER RECORDING THE GROUNDS OF APPEAL RAISED BY THE A SSESSEE THEREAFTER REPRODUCING THE ASSESSMENT ORDER ON THE ISSUE HAS DECIDED THE APPEAL BY OBSERVING AS UNDER :- 5. I HAVE EXAMINED THE ABOVE ASSESSMENT ORDER PASSED BY THE LD. ASSESSING OFFICER. I HAVE SEEN THE GROUND OF APPEAL. I HAVE ALSO EXAMINED THE WRITTEN SUBMISSIONS GIVEN TO ME ON1-2-2010 BY THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. BUT I AM NOT CONVINCED WITH THE SUBMISSIONS GIVEN BY THE LD. A.R. TH EREFORE THE ASSESSMENT ORDER PASSED BY THE LD. ASSESSING OFFICER IS APPR OVED AS IT IS. 6. A READING OF THE ABOVE FINDING OF THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) SHOWS THAT HE HAS NOT GIVEN ANY REASON AS TO WHY THE SUBMISSIONS OF THE ASSESSEE DID NOT CONVINCE HIM. THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS) EXERCISES A QUASI JUDICIAL FUNCTION AND THEREFORE IT IS HIS DUTY TO PASS A WELL REASONED OR DER GIVING REASONS FOR EACH AND EVERY CONTENTION RAISED BY THE ASSESSEE IN HIS A PPEAL SO THAT IN CASE OF THE APPEAL OF THE ASSESSEE BEING DISMISSED THE ASSESSE E IS IN A POSITION TO PLEAD HIS CASE BEFORE A HIGHER FORUM. IN THE CIRCUMSTANCES THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) CANNOT SUSTAINED IN LAW. I THEREFORE SET THE ORDER OF THE LE ARNED COMMISSIONER OF INCOME TAX (APPEALS) AND REMAND THE MATTER BACK TO H IS FILE TO RE-ADJUDICATE THE APPEAL OF THE ASSESSEE BY PASSING A SPEAKING ORDER AND AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY TO THE ASSESSEE. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HE ARING IN THE PRESENCE OF THE PARTIES ON 16TH DAY OF JULY 2010. SD/- ( N.S. SAINI ) ACCOUNTANT MEMBER AHMEDABAD; ON THIS 16TH DAY OF JULY 2010 PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XXI AHMEDABAD. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD 5 DATE INITIALS 1. DRAFT DICTATED ON 16-7-10 --------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 16-7-10 ----- -------------- 3. DRAFT PROPOSED & PLACED JM BEFORE THE SECOND MEMBER 19-7-10 4. DRAFT DISCUSSED/APPROVED 19-7-10 ------------- ------ JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 19-7-10 ---------- ---------- 6. KEPT FOR PRONOUNCEMENT ON 19-7-10 ------ -------------- 7. FILE SENT TO THE BENCH CLERK ---------------- -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ------------- --- ---------------------