Shiva Specific Family Trust, Ahmedabad v. The ACIT.,(OSD),Circle-10,, Ahmedabad

ITA 2753/AHD/2011 | 2008-2009
Pronouncement Date: 03-02-2012 | Result: Allowed

Appeal Details

RSA Number 275320514 RSA 2011
Assessee PAN AANHS5646D
Bench Ahmedabad
Appeal Number ITA 2753/AHD/2011
Duration Of Justice 2 month(s) 25 day(s)
Appellant Shiva Specific Family Trust, Ahmedabad
Respondent The ACIT.,(OSD),Circle-10,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 03-02-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 03-02-2012
Date Of Final Hearing 11-01-2012
Next Hearing Date 11-01-2012
Assessment Year 2008-2009
Appeal Filed On 08-11-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD A BENCH . .. . . .. . !'# !'# !'# !'# $ $ $ $ . .. . . .. .%&' %&' %&' %&' %( ) %( ) %( ) %( ) % # % # % # % # BEFORE S/SHRI G.C. GUPTA VICE-PRESIDENT AND A. L. GEHLOT ACCOUNTANT MEMBER) ITA NO.2753/AHD/2011 [ASSTT.YEAR : 2008-2009] SHIVA SPECIFIC FAMILY TRUST NIRMA HOUSE ASHRAM ROAD AHMEDABAD. PAN : AANHS 5646 D /VS. ACIT CIR.10 AHMEDABAD. ( (( (+ + + + / APPELLANT) ( (( (-.+ -.+ -.+ -.+ / RESPONDENT) /' 0 1 %/ ASSESSEE BY : SHRI S.N.SOPARKAR ) 0 1 %/ REVENUE BY : SHRI G.S.SOURYAVANSHI 3 0 '4(/ DATE OF HEARING : 11 TH JANUARY 2012 5&6 0 '4(/ DATE OF PRONOUNCEMENT : 03-02-2012 %7 / O R D E R PER G.C. GUPTA VICE-PRESIDENT: THIS APPEAL OF THE ASSESSEE FOR A.Y.2008-2009 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AHMEDABAD. 2. THE GROUND NO.1 OF THE ASSESSEES APPEAL READS A S UNDER: 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E APPELLANTS CASE THE LD.CIT(A) HAS GROSSLY ERRED IN POINTS OF LAW AND FACTS. 3. THIS GROUND IS GENERAL IN NATURE AND NEEDS NO AD JUDICATION. 4. THE GROUND NO.2 OF THE ASSESSEES APPEAL READS A S UNDER: 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E APPELLANTS CASE THE LD.CIT(A) HAS GROSSLY ERRED IN DISMISSING THE GROUND OF APPELLANT ASSESSING THE STATUS OF TRUST INSTEAD O F INDIVIDUAL ITA NO.2753/AHD/2011 -2- 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. DE EPAK FAMILY TRUST NO.1 (GUJ) 211 ITR 575 AND ALSO IN DCIT VS. HARJIV ANDAS JUTHABHAI ZAVERI & ANR. IN TAX APPEAL NO.189 OF 1999 DATED 6- 12-1999 WHEREIN THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN C IT VS. DEEPAK FAMILY TRUST (SUPRA) WAS FOLLOWED AND THE TRUST WAS TREATED AS INDIVIDUAL. THE SPECIAL LEAVE PETITION TO THE HO NBLE SUPREME COURT AGAINST THE JUDGMENT OF THE HONBLE GUJARAT HIGH CO URT IN THE CASE OF DCIT VS. HARJIVANDAS JUTHABHAI WAS DISMISSED BY THE HONBLE SUPREME COURT VIDE THEIR ORDER DATED 4-10-2004 IN SLP CIVIL NO.15090/2002. THE LEARNED DR COULD NOT CONTROVERT TO THE SUBMISSIONS OF THE LEARNED COUNSEL OF THE ASSESSEE. 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE ISSUE OF ASSESSING THE ASSESSEE-TRUST IN THE STATUS OF INDIVIDUAL IS COV ERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS OF HONBLE JURISDICTIONAL HIGH COURT CITED SUPRA AND THE SLP AGAINST THE DECISION OF THE HONBLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF DCIT VS. HARJIVANDAS JUTHABHAI ZAVER I (SUPRA) HAS ALSO BEEN DISMISSED BY THE HONBLE SUPREME COURT VIDE OR DER DATED 4-10- 2004 (SUPRA). THE ISSUE BEING COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT WE DECIDE THE ISSUE RAISED IN THE GROUND OF THE APPEAL IN FAVOUR OF TH E ASSESSEE AND HOLD THAT THE ASSESSEE SHOULD BE ASSESSED IN THE STATUS OF I NDIVIDUAL AND THE GROUND NO.2 OF THE ASSESSEES ALLOWED. 7. THE GROUND NO.3 OF THE ASSESSEES APPEAL READS A S UNDER: ITA NO.2753/AHD/2011 -3- 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E APPELLANTS CASE THE LD.CIT(A) HAS GROSSLY ERRED IN DISMISSING THE GROUND OF APPELLANT MENTIONING METHOD OF ACCOUNTING AS MERCAN TILE IN THE BODY OF THE ASSESSMENT ORDER WHEREAS IN FACT THE APPELLANT TRUST IS FOLLOWING CASH METHOD OF ACCOUNTING. 8. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE ITAT AHMEDABAD BENCHES IN ASSESSEES OWN CASE FOR A.Y.20 03-2004 IN ITA NO.1853/AHD/2007 DATED 2-11-2007. HOWEVER THE LEA RNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT(A) HAS DECIDED THE ISSUE EX PARTE QUA THE ASSESSEE AND HE HAS NO OBJECTION IF THE ISSUE I S RESTORED TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUE DE NOVO IN ACCORDANCE WITH LAW. THE LEARNED DR RELIED ON THE ORDER OF THE AO AND THE CI T(A). 9. WE HAVE CONSIDERED RIVAL SUBMISSIONS. WE FIND T HAT THE ISSUE IS DECIDED EX PARTE BY THE CIT(A) AGAINST THE ASSESSEE. IN REPLY TO A SPECIFIC QUESTION BY THE BENCH REGARDING THE STATUS OF THE ISSUE FOR A.Y.2004-2005 ONWARDS THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE HAS INSTRUCTIONS THAT THE METHOD OF ACCOUNT ING OF THE ASSESSEE HAS BEEN ACCEPTED BY THE DEPARTMENT. IN THESE FACTS OF THE CASE WE HOLD THAT IT SHALL BE PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH DIRECTION TO PASS DE NOVO APPELLATE ORDER ON THIS ISSUE IN ACCORDANCE WITH LAW AFTER ALLOWING DUE OPPORTUNITY OF HEARING TO BO TH THE SIDES. WE DIRECT ACCORDINGLY. 10. IN THE RESULT THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( . .. . . .. .%&' %&' %&' %&' /A.L. GEHLOT) %( ) /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !'# !'# !'# !'# /VICE-PRESIDENT