Bombay High Court
Kalpesh K. Shah vs Assistant Commissioner Of ... on 31 July, 2007
Equivalent citations: 2008 296 ITR 74 Bom
Author: J Devadhar
Bench: F Rebello, J Devadhar
JUDGMENT
J.P. Devadhar, J.
1. Heard.
2. This appeal is filed by the assessee-appellant under Section 260A of the Income-tax Act, 1961, stating that the following questions of law arising out of the order of the Tribunal dated January 30, 2006, in I.T.A. No. 6323/ Mum/03:
1. Whether, on the facts and in the circumstances, the Tribunal was justified in setting aside the impugned cash credit of Rs. 7 lakhs in respect of loans from Shri Y.J. Choksi Group and disallowance of interest of Rs. 3,96,964 thereon?
2. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal ought to have deleted the impugned additions by way of cash credit and disallowance of interest in view of gross violation of the principles of natural justice and directions given by the Commissioner of Income-tax (Appeals) in his order dated March 30, 2001?
3. The appeal is admitted on the aforesaid questions and by consent of the parties, taken up for final hearing.
4. The assessment year involved herein is assessment year 1997-98.
5. The assessee is an individual and carries on business in chemicals in the name and style of M/s. Shital Pharma.
6. The assessments for the assessment year 1997-98 was initially completed under Section 143(3) of the Act on March 31, 2000, wherein additions aggregating to Rs. 38,47,297 were made in respect of cash credits of J.M. Shah group and Y.J. Choksi group.
7. Being aggrieved by the aforesaid order, the assessee filed an appeal before the Commissioner (Appeals) who by an order dated March 30, 2001, restored the issue of the appeal to the Assessing Officer with direction that the issue be determined after affording reasonable opportunity of hearing to the assessee. Being aggrieved by the aforesaid order, the assessee filed an appeal before the Income-tax Appellate Tribunal being I.T.A. No. 3020/Mum/01.
8. In the meantime, as per the directions made by the Commissioner (Appeals) the Assessing Officer passed fresh assessment order wherein additions of Rs. 7,00,000 in respect of a loan taken from Mr. Y.J. Choksi group and disallowance of interest of Rs. 3,96,964 was made. Being aggrieved by the aforesaid order, the assessee filed an appeal and the Commissioner of Income-tax (Appeals) by his order dated 1st July, 2003 deleted entire amount of Rs. 7,00,000 added as unexplained cash credit and deleted disallowance of interest of Rs. 3,96,964 made by the Assessing Officer. Being aggrieved by the aforesaid order, the Revenue filed an appeal before the Appellate Tribunal being I.T.A. No. 6323/Mum/03.
9. By a common order dated January 30, 2006, the Income-tax Appellate Tribunal disposed of both the appeals being I.T.A. No. 3020/Mum/01 and I.T.A. No. 6323/Mum/03. By the said order, the Tribunal dismissed the appeal filed by the assessee being I.T.A. No. 3020/Mum/01 thereby confirming the order of the Commissioner of Income-tax (Appeals) in restoring the issue to the Assessing Officer. The Tribunal disposed of I.T.A. No. 6323/Mum/03 filed by the Revenue by passing similar order of remand. This appeal is filed by the assessee to challenge the order of the Tribunal in I.T.A. No. 6323/Mum/03.
10. The dispute in I.T.A. No. 6323/Mum/03 arose from the reassessment order passed by the Assessing Officer after remand. In other words, once the additions of Rs. 7,00,000 as unexplained cash credits in the accounts of parties of Y.J. Choksi Group as well as the disallowance of interest of Rs. 3,96,964 was made by the Assessing Officer in compliance with the remand order passed by the Commissioner of Income-tax (Appeals), the Tribunal ought to have decided the matter on merits, instead of remanding the matter once again. It is apparent that the confusion arose because both the appeals, one filed by the assessee challenging the order of the Commissioner of Income-tax (Appeals) in remanding the matter and another appeal filed by the Revenue challenging the order of the Commissioner of Income-tax (Appeals) after remand were heard and disposed of by a common judgment.
11. In this view of the matter, order of the Tribunal passed in I.T.A. No. 6323/Mum/03 cannot be sustained. Accordingly, impugned order dated January 30, 2006 in so far as it pertains to I.T.A. No. 6323/Mum/03 is quashed and set aside. The Tribunal is directed to hear I.T.A. No. 6323/ Mum/03 on merits and pass appropriate order thereon after giving an opportunity of hearing.
The income-tax appeal is allowed in the above terms with no order as to costs.
