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TAXAP/25222009/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 2522 of 2009
with
O.J.CIVIL
APPLICATION NO. 520 OF 2009
WITH
TAX
APPEAL No. 2523 of 2009
with
O.J.CIVIL
APPLICATION NO. 521 OF 2009
=========================================
GOPAL
IRON & STEEL CO (GUJ) LTD - Appellant(s)
Versus
THE
INCOME TAX OFFICER - Opponent(s)
=========================================
Appearance :
MR. J.P.SHAH,
Ld. Senior Counsel with MR MANISH J SHAH for
Appellant(s) : 1,
MR. MANISH R. B HATT with MRS MAUNA M BHATT for
Opponent(s):1
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 08/02/2010
COMMON
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
Appellant / assessee has filed these two Tax Appeals under Section
260A of the Income Tax Act, 1961 for the assessment year 1996-97 and
1997-98, proposing to formulate the following substantial questions
of law for determination and consideration of this Court:
(i) Whether
on the facts and in the circumstances of the case, the Tribunal was
right in law in sending the matter back to the Assessing Officer and
not deciding the appeal itself?
(ii) Whether
on the facts and in the circumstances of the case, the share
application money was addible in the hands of the assessee-company
under sec.68?
Heard
Mr. J.P.Shah, the learned Senior Counsel appearing with Mr. Manish
J. Shah for the Appellant and Mr. Manish R.Bhatt, the learned Senior
Standing Counsel appearing with Mrs. Mauna M. Bhatt, the learned
Standing Counsel for the Revenue and perused the orders passed by
the authorities.
This
Court has issued notice on 19.1.2010. Pursuant to the notice, Mrs.
Mauna M. Bhatt has filed her appearance on behalf of the Revenue.
The
Appellant’s grievance is only against the setting aside of the order
passed by the CIT(A) and remanding the matter back to the Assessing
Officer. The Tribunal while remanding the matter to the Assessing
Officer has observed that the assessee has submitted the details for
the first time before the CIT(A) regarding the list of shareholders
up to allotment appearing at pages 1 to 178 of the paper book.
These details were filed for the first time before the CIT(A). On
this basis the Tribunal observed that since the verification of
these documents are required to adjudicate the issues, in the
interest of justice and fair play to both the parties, the
assessment orders were set aside and direction was given to the
Assessing Officer to make fresh assessments after considering all
the submissions as well as the documents which the assessee may
submit before him.
The
very premises or foundation on the basis of which the Tribunal has
passed the order, seems to be erroneous, as the list of shareholders
up to allotment appearing at pages 1 to 178 of the paper book was
filed before the AO and it was not filed before the CIT(A) for the
first time. These details were very much before the AO and he has
passed the order considering the said details. Hence the Tribunal
has erred in making this observation and after making such
observations, set aside the assessment. Normally the Court would
not have interfered in the order setting aside the assessment.
However, looking to the facts of the present case the order passed
by the Tribunal is required to be set aside and the Tribunal is
required to be directed to decide it afresh. However, looking to the
subsequent development that has taken place after the Tribunal has
passed the impugned order, the Court would not interfere in the
order passed by the Tribunal as pursuant to the said order, the AO
has already framed the assessment against which the Appellant
assessee has filed appeals before the CIT(A) and those appeals are
pending.
In
light of the above facts, without interfering in the order passed by
the Tribunal, we direct the CIT(A) to decide the Appeals which are
pending before him against fresh assessment orders passed by the AO,
in accordance with law and after considering the Apex Court’s order
passed in the case of Commissioner of Income Tax v. Steller
Investment Ltd. 2001 (201) ITR 263 and
Commissioner of Income Tax v. M/s Lovely Export (Private)
Limited passed by the Apex
Court on 11.1.2008 in Special Leave to Appeal (C) No. 11993 of 2007.
We are at
pains to point out that on a wrong premises the assessment orders
were set aside by the Tribunal. The details were before the
Tribunal and after considering these details, the Tribunal ought to
have passed the order on merits. The shortcut adopted by the
Tribunal has given further rise to the litigation. Be that as it
may, now the CIT (A) is expected to decide the Appeals filed by the
asssessee before him in accordance with law and in accordance with
the Hon’ble Apex Court’s decisions.
Subject to
the aforesaid direction both the Appeals are accordingly disposed
of.
Since the
Appeals are disposed of, Civil Applications no longer survive and
accordingly disposed.
(K.A.Puj,J)
(Rajesh H.
Shukla,J)
Jayanti*
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