Taxap/1484/2007 Of The Commissioner Of Income Taxahmedabad - Iv v. Jitendra P. Chotalia

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 1484 of 2007 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERISd/-andHONOURABLE MR.JUSTICE K.J.THAKERSd/-================================================================1 Whether Reporters of Local Papers may be allowed to see Nothe judgment ?2 To be referred to the Reporter or not ?No3 Whether their Lordships wish to see the fair copy of the Nojudgment ?4 Whether this case involves a substantial question of law as Noto the interpretation of the Constitution of India, 1950 or any order made thereunder ?5 Whether it is to be circulated to the civil judge ?No================================================================THE COMMISSIONER OF INCOME TAXAHMEDABAD - IV....Appellant(s)VersusJITENDRA P. CHOTALIA....Opponent(s)================================================================Appearance:MR NITIN K MEHTA, ADVOCATE for the Appellant(s) No. 1MR SN DIVATIA, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 12/12/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI)1.Heard learned Advocates for the respective parties. 2. By way of this Appeal, the appellant – Department has challenged the order dated 16.03.2007 passed by the Income Tax Appellate Tribunal, A'bad Bench 'D' in M.A.No.191/Ahd/2006inIT(SS)A No.199/Ahd/1997 for Block Period : 01/04/1985 to 31/03/1995 & 01/04/1995 to the date of search. 3.While admitting the matter on 29.02.2003, the following questions of law were framed for consideration by the Court :- “A. Whether the Appellate Tribunal is right in law and on facts in allowing the Misc. Application preferred by the assessee and recalling its earlier order, which was passed on merits? B. Whether the order passed by the Tribunal allowing the Misc. Application does not tantamount to review of its earlier order?” 4.Vide the above order, the Tribunal had recalled its own order dated 19.04.2005 in No.IT(SS)A/199/AHD/1997. 5.The case in brief is as under :- The business and residential premises of the assessee were searched u/s. 132 of the IT Act on 20.03.1996, which concluded on 21.03.1996. The assessment was completed u/s.158BC r.w.s. 144 of the I.T. Act on 17.09.1997 determining the undisclosed income of Rs.34,56,640/= after considering the returned income filed by the assessee. Aggrieved by the order of the Assessing Officer, the assessee filed an Appeal against the order passed u/s. 144 of the IT Act before the Appellate Tribunal. The Appellate Tribunal in its order dated 19.04.2005 observed that the Assessing Officer failed to consider the assessee's oral submissions as well as written submissions made as per letters dated 08.09.1997, 12.09.1997 and 16.09.1997. Considering the above facts, the Appellate O/TAXAP/1484/2007 JUDGMENT Tribunal set aside the assessment of the Block period and directed the Assessing Officer to frame the assessment of the assessee for the block period De novo in accordance with law and after allowing the assessee a proper opportunity of being heard. TheAssessingOfficeraccordingly finalised and set aside the assessment u/s. 158BC r.w.s. 153(3) & 254 of the I.T. Act on 22.12.2006 on total income of Rs.35,56,640/- raising tax demand of Rs.20,73,984/-. In the meantime, The Appellate Tribunal recalled its own order dated 19.04.2005. O/TAXAP/1484/2007 JUDGMENT Tribunal set aside the assessment of the Block period and directed the Assessing Officer to frame the assessment of the assessee for the block period De novo in accordance with law and after allowing the assessee a proper opportunity of being heard. TheAssessingOfficeraccordingly finalised and set aside the assessment u/s. 158BC r.w.s. 153(3) & 254 of the I.T. Act on 22.12.2006 on total income of Rs.35,56,640/- raising tax demand of Rs.20,73,984/-. In the meantime, The Appellate Tribunal recalled its own order dated 19.04.2005. 6.HavingheardlearnedAdvocates appearing for the respective parties and perusing the records of the case, we are of the view that the question as to whether the review is maintainable or not is squarely covered by the decision of this Court in Tax Appeal No.627/2012 (Coram : M.R. Shah, J. & R.P. Dholaria, J.). Paragraph 2 of the said decision reads as under :- “2. As held by this Court in Special Civil Application No.15074 of 2013, against the order passed by the learned Income Tax Appellate Tribunal dismissing the Rectification Application, appeal under Section 260A of the Income Tax Act would not be maintainable. Hence, present appeal is dismissed as not maintainable. However, liberty is reserved in favour of the appellant to prefer Special Civil Application under Article 226/227 of the Constitution of India challenging the impugned order passed by the learned Tribunalinrejectingthe Rectification Application and as and when such proceedings are initiated, the same be considered in accordance with law and on merits. With this, present appeal isdisposedofasnot maintainable. 7.In the aforesaid circumstances, this Tax Appeal stands disposed off with a liberty to the Appellant to take recourse to law by preferring Special Civil Application. In that view of the matter, we have not answered the questions of law posed for our consideration as we have not dealt with the matter on merits. O/TAXAP/1484/2007 JUDGMENT Sd/- (K.S. JHAVERI, J.) CAROLINE Sd/-(K.J. THAKER, J.)