Original Assessee v. The Commissioner Of Income Tax,Aurangabad.aurangabad

(1) Tax Appeal Nos. 4 & 5 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,AURANGABAD BENCH, AT AURANGABAD. Tax Appeal No. 4 of 2010 With Shri Shankar G. Paraswani,C/o. Shriman Shrimati Readymade,Tilak Path, Aurangabad, Maharashtra. .. Appellant (Original Assessee) versus 1. The Commissioner of Income Tax,Aurangabad.Aurangabad. 2. Asstt. Commissioner of Income Tax,Circle-2, Aurangabad. Circle-2, Aurangabad. .. Respondents (Original Revenue) ....................... Tax Appeal No. 5 of 2010 Shri Deepak G. Paraswani,C/o. Ding Dong, Tilak Path, Aurangabad, Maharashtra. .. Appellant (Original Assessee) versus 1. The Commissioner of Income Tax,Aurangabad.Aurangabad. 2. Asstt. Commissioner of Income Tax, Circle-2, Aurangabad. .. Respondents (Original Revenue) ........................ (2) Tax Appeal Nos. 4 & 5 of 2010 Mr. R.R. Chandak, Advocate, for appellantsin both appeals. Mr. Alok Sharma, Assistant Solicitor General,for respondent nos.1 and 2 in both appeals. ************* CORAM : B.P. DHARMADHIKARI & SUNIL P. DESHMUKH, JJ. DATE : 17TH JULY 2012 COURT'S ORDER (Per B.P. Dharmadhikari, J.) : 1.Heard Adv. Mr. R.R. Chandak, for the appellants, and learned ASGI Mr. Alok Sharma, for the respondents. 2.The issue is about the validity of the valuation of immoveable property in which both appellants have 50 % share. The Income Tax Appellate Tribunal [For short, "ITAT"] has disposed of the appeals of Revenue by common order. We, therefore, also propose to pass common order. 3.Effort of Adv. Mr. Chandak is, to demonstrate that alleged unexplained investment, if any, did not pertain to assessment years relevant before the authorities in the present matter. He has argued that the Commissioner of Income Tax (Appeals) [For short, "CIT (Appeals)"] has recorded a finding that, that expenditure was incurred prior to assessment (3) Tax Appeal Nos. 4 & 5 of 2010 year 2001-02. In this view of the matter, according to him, reference to DVO was uncalled for and hence, reference to judgment in the case of Smt. Amiya Bala Paul Vs. CIT, reported at [2003] 262 ITR 407 (S.C.), is also not necessary. According to him, even retrospective amendment of Section 142A of Income Tax Act, 1961, is not relevant. 4.Learned ASGI Mr. Alok Sharma has attempted to show that there is no substantial question of law involved. 5.We have perused the order passed by the ITAT. The ITAT has in paragraph 2 of the order, noted that amendment to Section 142A by Finance No.2 Act, 2004 has been brought into force from 15-11-1972. In this background, contention of present appellant, that they needed to be given an opportunity and that the assessment was completed before 30-9-2004, are also noted. The ITAT has found the contention of assessee's representative on applicability of proviso to Section 142A of Income Tax Act, without any substance. Showing these observations, Adv. Mr. Chandak contends that, thus, ITAT has placed seal upon certain aspects which are open to present assessee otherwise. 6.After perusal of entire order of ITAT, we find above submission misconceived. The ITAT has reproduced the contentions and dealt with the same only as a part of its process of appreciation. However, it has specifically recorded that CIT (Appeals) had proceeded to decide the issue mainly on legal ground and not on merits and there was error in not properly considering retrospective effect of amendment in Section 142A of Income Tax Act. Because of this, it has placed matter back before CIT (4) Tax Appeal Nos. 4 & 5 of 2010 (Appeals) "for de novo hearing". 7.This later part of judgment of ITAT clearly shows that apprehensions communicated to this Court by Adv. Mr. Chandak are without any merit. All contentions available to present appellants are still open and can be looked into by CIT (Appeals). (4) Tax Appeal Nos. 4 & 5 of 2010 (Appeals) "for de novo hearing". 7.This later part of judgment of ITAT clearly shows that apprehensions communicated to this Court by Adv. Mr. Chandak are without any merit. All contentions available to present appellants are still open and can be looked into by CIT (Appeals). 8.As ITAT has placed the matter back before CIT (Appeals), we do not find any substantial question of law arising. Appeals are accordingly dismissed. No costs. (SUNIL P. DESHMUKH)(B.P. DHARMADHIKARI) JUDGE JUDGE ......................... bgp/ta4etc