Smt. Jigisha Prashant Mehta,, RAJKOT-GUJARAT v. The Deputy Commissioner of Income Tax, Central Circle-1,, RAJKOT-GUJARAT

ITSSA 51/RJT/2010 | 2005-2006
Pronouncement Date: 02-12-2011 | Result: Allowed

Appeal Details

RSA Number 5124916 RSA 2010
Assessee PAN ACDPM8996J
Bench Rajkot
Appeal Number ITSSA 51/RJT/2010
Duration Of Justice 1 year(s) 6 month(s) 30 day(s)
Appellant Smt. Jigisha Prashant Mehta,, RAJKOT-GUJARAT
Respondent The Deputy Commissioner of Income Tax, Central Circle-1,, RAJKOT-GUJARAT
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 02-12-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 02-12-2011
Date Of Final Hearing 01-11-2011
Next Hearing Date 01-11-2011
Assessment Year 2005-2006
Appeal Filed On 03-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI T.K. SHARMA (JM) AND SHRI A.L. GEHLOT ( AM) I.T(SS).A. NO.50 & 51/RJT/2010 (ASSESSMENT YEARS 2003-04 & 2005-06) SMT. JIGISHA PRASHANT MEHTA VS THE DY.CIT CENT.CI R.1 AMITA 1-BHAKTI NAGAR SOCIETY RAJKOT RAJKOT PAN : ACDPM8996J (APPELLANT) (RESPONDENT) DATE OF HEARING : 30-11-2011 DATE OF PRONOUNCEMENT : -12-2011 APPELLANT BY : SHRI RD LALCHANDANI RESPONDENT BY: SHRI KIRSHNA PRABHAKAR O R D E R PER T.K. SHARMA (JM) THESE APPEALS BY THE REVENUE ARE AGAINST THE ORDER DATED 02-02-2010 PASSED BY THE CIT(A)-IV AHMEDABAD FOR THE ASSESSME NT YEARS 2003-04 AND 2005-06. 2. THE ONLY GROUND RAISED IN BOTH THE APPEALS IS TH AT LD.CIT(A) ERRED IN CONFIRMING THE AMOUNT OF RS.5 65 001 AND RS.5 65 00 1 BEING THE AMOUNT RECEIVED BY ASSESSEES MINOR CHILDREN FOR THE ASSES SMENT YEAR 2003-04 AND 2005-06 RESPECTIVELY. 3. IN BOTH THE ASSESSMENT YEARS THE ASSESSEE HAS RA ISED THE ADDITIONAL GROUND OF APPEAL VIDE LETTER DATED 30-11-2011. THE LETTER IS REPRODUCED HEREUNDER: ITSS NO.50 & 51/RJT/2010 2 [1] THE ASSESSING OFFICER HAS PASSED AN ORDER U/S 153A OF THE ACT ON THE APPELLANT MAKING AN ADDITION ON ACCOUNT OF GIFTS RECEIVED BY HER DAUGHTER. [2] THERE WERE PROCEEDINGS U/S 132 OF THE ACT ON TH E HUSBAND OF THE APPELLANT. [3] DURING THE COURSE OF THE PROCEEDINGS NO INCRIMI NATING DOCUMENTS WERE FOUND TO SHOW THAT THE GIFTS RECEIVE D BY THE DAUGHTERS WERE NOT GENUINE. [4] THE INCOME TAX APPELLATE TRIBUNAL RAJKOT IN TH E ORDER OF THE HUSBAND OF THE APPELLANT HELD THAT IT IS CLEAR THAT THE ASSESSING OFFICER CANNOT ASSU ME JURISDICTION U/S 153A IN A CASE WHERE NO INCRIMINAT ING MATERIAL OR DOCUMENTS OR UNDISCLOSED ASSETS WERE FOUND DURING THE COURSE OF A SEARCH COPY OF THE ORDER IS ENCLOSED. PLEASE REFER TO PAGE 9 TO 20 OF THE INCO ME TAX APPELLATE TRIBUNAL ORDER.. [5] THE APPELLANT SUBMITS THAT THE SAME IS A PURE L EGAL GROUND WHICH GOES TO THE VERY ROOT OF THE DISPUTE AND DOES NOT REQUIRE ANY VERIFICATION. THE APPELLANT INVITES RE FERENCE TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF NTPC LTD 229 ITR 283 (SC). THE HONBLE COURT HAS H ELD THAT A LEGAL GROUND CAN BE RAISED AT ANY STAGE OF A PPEAL. [6] THE APPELLANT THEREFORE PRAYS THAT SHE BE ALLOW ED TO RAISE AN ADDITIONAL GROUND AS UNDER [A] THE ORDER OF THE ASSESSING OFFICER PASSED U/S 1 53A IS BEYOND JURISDICTION AND HENCE BAD IN LAW. [B] THE ADDITION ON ACCOUNT OF CASH CREDITS IS BEYO ND THE SCOPE OF THE ADDITIONS U/S 153A. 4. AT THE TIME OF HEARING ON BEHALF OF ASSESSEE S HRI RD LALCHANDANI APPEARED AND POINTED OUT THAT AFORESAID ADDITIONAL GROUND OF APPEAL HAS BEEN RAISED KEEPING IN VIEW THE DECISION OF ITAT RAJKOT BENCH DATED 23-09-2010 OF ITAT RAJKOT BENCH IN ITA NO.868/RJT/2010 & ORS IN THE CASE OF SHRI KAMLESH MANSUKHLAL MEHTA & ANR. THIS DECISION WAS NOT AVAI LABLE WHEN THE ASSESSEE FILED THE FIRST APPEAL ON 23-01-2009 BEFORE THE LD. CIT(A) IN RESPECT OF BOTH THE ITSS NO.50 & 51/RJT/2010 3 ASSESSMENT YEARS. IT WAS ALSO POINTED OUT THAT PLE A RAISED IN THE ADDITIONAL GROUND FOR BOTH THE ASSESSMENT YEARS IS A PURE LEGA L GROUND WHICH GOES TO VERY ROOT OF THE DISPUTE. IT DOES NOT REQUIRE ANY VERIF ICATION OF FACT. FOR ADMISSION OF THE ADDITIONAL GROUND FOR BOTH THE ASSESSMENT YEARS RELIANCE WAS PLACED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F NTPC LTD 229 ITR 283 (SC) WHEREIN IT WAS HELD THAT LEGAL GROUND CAN BE R AISED AT ANY STAGE OF APPEAL. 5. SHRI KRISHNA PRABHAKAR THE LD.DR APPEARED FOR T HE REVENUE AND POINTED OUT THAT THE AFORESAID LEGAL GROUND CANNOT BE ADMIT TED AS IT WAS NOT RAISED BEFORE THE FIRST APPELLATE AUTHORITY. WITHOUT PREJUDICE T O THIS THE LD.DR POINTED OUT THAT EVEN IF THIS ADDITIONAL GROUND IS ADMITTED AS PER THE JUDGMENT OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS TOL ARAM HASSOLMAL REPORTED IN (2008) 298 ITR 22 (MP) THE TRIBUNAL SHOULD REMAND THE CASE TO CIT(A). 6. IN THE REJOINDER THE COUNSEL OF THE ASSESSEESTA TED THAT HE HAS NO OBJECTION IN CASE AFTER ADMISSION OF ADDITIONAL GRO UND THE MATTER IS REMANDED TO THE LD.CIT(A) AS PER THE RATIO OF JUDGMENT OF THE H ONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF TOLANI HASSOLMAL (SUPRA). 7. AFTER HEARING BOTH SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDER OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT TH E PLEA RAISED BY THE ASSESSEE IN ADDITIONAL GROUND FOR BOTH THE ASSESSMENT YEAR IS P URE LEGAL ISSUE WHICH GOES TO THE VERY ROOT OF THE DISPUTE. AS PER THE JUDGMENT OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS TOLARAM HASSOLMAL CITED SUPRA HELD AS UNDER: ITSS NO.50 & 51/RJT/2010 4 HELD THAT THE TRIBUNAL HAVING PERMITTED THE ASSES SEE TO RAISE FOUR ADDITIONAL GROUNDS TREATING THEM TO BE LEGAL GROUND S IN APPEAL FOR THE FIRST TIME SHOULD HAVE SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AND REMANDED THE CASE TO TH E COMMISSIONER OF INCOME-TAX (APPEALS) FOR DECIDING T HE APPEAL AFRESH ON ALL THE ISSUES INCLUDING ON THOSE FOUR GR OUNDS RAISED BY THE ASSESSEE IN THE APPEAL BEFORE THE TRIBUNAL RATH ER THAN TO DECIDE THE ADDITIONAL GROUNDS ON THE MERITS FOR THE FIRST TIME BY ITSELF. 8. IN VIEW OF THE ABOVE WE ADMIT THE ADDITIONAL GRO UND AND REMAND THE APPEAL TO THE LD.CIT(A) FOR ADJUDICATING THE ISSUES INCLUDING ADDITIONAL GROUND RAISED FOR THE FIRST TIME BEFORE US IN ACCORDANCE W ITH LAW AFTER GIVING OPPORTUNITY OF HEARING TO BOTH SIDES. 9. BEFORE PARTING WITH WE MAY ADD THAT THE LD.CIT( A) WILL CONSIDER THE DECISION OF ITAT RAJKOT BENCH IN THE CASE OF SHRI KAMLESH MANSUKHLAL MEHTA & ANR CITED SUPRA AND OTHER CASES WHICH ARE AVAILABLE FOR ADJUDICATING THE ADDITIONAL GROUND AND OTHER GROUNDS OF APPEAL IN AC CORDANCE WITH LAW. 10. IN THE RESULT FOR STATISTICAL PURPOSES BOTH T HE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED. THIS ORDER HAS BEEN PRONOUNCED ON THE DATE AS MENTI ONED ABOVE. SD/- SD/- (A.L. GEHLOT) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT DT : 02 ND DECEMBER 2011 PK/- ITSS NO.50 & 51/RJT/2010 5 COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-IV AHMEDABAD 4. THE CIT CENTRAL-II AHMEDABAD 5. THE DR I.T.A.T. RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT