Shri Vijen G. Zaveri, v. The Income tax Officer,,

ITA 4361/AHD/2003 | 1995-1996
Pronouncement Date: 01-02-2010 | Result: Allowed

Appeal Details

RSA Number 436120514 RSA 2003
Bench Ahmedabad
Appeal Number ITA 4361/AHD/2003
Duration Of Justice 6 year(s) 1 month(s) 24 day(s)
Appellant Shri Vijen G. Zaveri,
Respondent The Income tax Officer,,
Appeal Type Income Tax Appeal
Pronouncement Date 01-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 01-03-2007
Date Of Final Hearing 01-02-2010
Next Hearing Date 01-02-2010
Assessment Year 1995-1996
Appeal Filed On 08-12-2003
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER ITA NO.4361/AHD/2003 ASSESSMENT YEAR:1995-96 DATE OF HEARING:1.2.10 DRAFTED:2.2.10 SHRI VIJEN G ZAVERI OLD ADD: 10/1338 CHANDLA GALI GOPIPURA SURAT NEW ADD: 2/7 IRLA SADAN SOCIETY ROAD IRLA VILE PARLE (W) MUMBAI PAN NO.ABCPP9199C V/S . INCOME TAX OFFICER WARD-5(1) SURAT (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI DHARMESH DSHAH AR RESPONDENT BY:- SHRI RAJEEV AGARWAL CIT DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-IV SURAT IN APPEAL NO.CAS/IV/ 96/03-04 DATED 28-08-2003. THE ASSESSMENT WAS FRAMED BY THE ITO WARD-5(1) SU RAT U/S. 144 R.W.S 147 OF THE INCOME-TAX ACT 1961 (HEREINAFTER REFERRED TO AS T HE ACT) FOR THE ASSESSMENT YEAR 1995-96 VIDE HIS ORDER DATED 27-03-2002. 2. AT THE OUTSET THE LD. CIT-DR OBJECTED FOR ASSESS EES PAPER BOOK FILED ON 29- 01-2010. AT THIS THE LD. COUNSEL FOR ASSESSEE SHR I DHARMESH. D SHAH FILED AN APPLICATION STATING THAT HE IS NOT RELYING ON THE P APER BOOK. THE RELEVANT TEXT OF THE APPLICATION READS AS UNDER:- ITA NO.4361/AHD/2003 A.Y. 1995-96 SH. VIJEN G ZAVERI V. ITO WD-5(1) SURAT PAGE 2 ON BEHALF OF OUR ABOVEMENTIONED CLIENT AND AS PER THEIR INSTRUCTIONS WE SUBMIT THAT THE PAPER BOOK FILED BEFORE YOUR HONOUR ON 29.1.2010 IS NOT BEING RELIED UPON BY US. ACCORDINGLY THE ASSESSEES PAPER BOOK IS NOT CONSI DERED. 3. THE LD. COUNSEL FOR THE ASSESSEE FIRST OF ALL STARTED ARGUMENT ON THE RE- OPENING. THE LD. CIT-DR MADE PRELIMINARY OBJECTION TO THIS ISSUE AND SATED THAT THIS WAS NOT RAISED BEFORE CIT(A) AND EVEN NOW BEFO RE THE TRIBUNAL ALSO THE GROUND NO.1 IS REGARDING THE CONFIRMATION OF THE ACTION OF THE ASSESSING OFFICER IN COMPLETING THE EX PARTE ASSESSMENT AND NOT ON RE-OP ENING. THE RELEVANT GROUND NO.1 READS AS UNDER:- ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTI ON OF ASSESSING OFFICER IN COMPLETING AND PASSING ORDER U/S.144 R.W.S. 147 OF THE I.T. ACT. WE FIND FROM THE ARGUMENTS OF BOTH THE SIDES THAT T HE ISSUE OF RE-OPENING U/S.147 OF THE ACT HAS NOT BEEN RAISED NEITHER BEFORE THE CIT( A) NOR BEFORE THE TRIBUNAL. AT THIS THE LD. COUNSEL FOR THE ASSESSEE FAIRLY SATED THAT HE IS NOT INTERESTED IN TAKING UP THIS ARGUMENT AS HE FAIRLY CONCEDED THAT NO SUCH GROUND WAS RAISED BEFORE CIT(A) AND EVEN NOW BEFORE TRIBUNAL. HE ALSO AGREE D THAT THERE IS NO CASE FOR RE- OPENING IN ASSESSEES FACTS. ACCORDINGLY HE HAS N OT PURSUED THIS ISSUE. 4. COMING TO MERITS OF THE CASE THE ASSESSEE HAS R AISED TWO ISSUES I.E. MAKING OF ADDITION OF UNEXPLAINED CASH CREDITS AND ALSO DI SALLOWANCE OF EXPENSES. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE STATED THA T THE ASSESSMENT WAS FRAMED EX PARTE U/S.144 OF THE ACT AND NO OPPORTUNITY WAS PRO VIDED BY THE ASSESSING OFFICER. EVEN THE CIT(A) HAS ALSO NOT PROVIDED THE OPPORTUNI TY AS THE APPELLATE ORDER IS NOT AT ALL A SPEAKING ORDER. ACCORDINGLY HE URGED THE BEN CH THAT THE MATTER BE RESTORED BEFORE THE CIT(A) ON MERITS. HE FAIRLY CONCEDED TH AT HE WILL NOT RAISE THE LEGAL ISSUES. ON GOING THROUGH THE CASE RECORDS AND ON H EARING THE LD. CIT-DR WE FIND THAT NONE OF THE AUTHORITIES BELOW HAVE DECIDED THE ISSUES ON MERITS AND ALSO MADE ADDITION WITHOUT PROVIDING REASONABLE OPPORTUNITY O F BEING HEARD. KEEPING IN VIEW ITA NO.4361/AHD/2003 A.Y. 1995-96 SH. VIJEN G ZAVERI V. ITO WD-5(1) SURAT PAGE 3 THE PRINCIPLES OF NATURAL JUSTICE IN MIND WE SET A SIDE THE TWO ISSUES ON MERITS TO THE FILE OF THE CIT(A). ACCORDINGLY THE CIT(A) AFTER TAKING A REMAND REPORT FROM THE ASSESSING OFFICER WILL DECIDE AFTER PROVIDING REAS ONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 01/02/2010 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD DATED :01/02/2010 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- IV SURAT 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD