ITAT AHMEDABAD
DCIT v/s. Sandip M. Patel
IT APPEAL NOS. 866 TO 871, 1016 & 1339 (AHD.) OF 2008
[ASSESSMENT YEARS 1998-99 to 2003-04]
APRIL 30, 2012
ORDER
Mukul Kr. Shrawat, Judicial Member – In the case of Mahendra A. Patel for A.Y. 2002-03 cross appeals have been filed arising from the order of the CIT(A)-III, Ahmedabad dated 31.01.2008. For rest of the years, i.e. A.Ys. 1999-2000 2000-01, 2001-02 & 2003-04 Revenue is in appeal. For A.Ys. 1999-2000, 2001-02 and 2003-04 separate orders have been passed by ld. CIT(A) all dated 31/10/2007 and for A.Y. 2000-01 the date of order is 27/11/2007. In the case of Sandip M. Patel, Revenue is in appeal for AYs 1998-99 & 2001-02 and the orders of the ld. CIT(A) are respectively dated 19/10/2007 & 23/10/2007. In all these eight appeals facts are stated to be identical, hence we have proceeded to decide all these appeals by this common order.
2. At the outset, we have been informed that for A.Ys. 1999-2000, 2000-01, 2001-02 & 2003-04 the respondent-assessee has filed cross objections, however, those cross objections were dismissed, being withdrawn by the assessee, vide ITAT “C” Bench Ahmedabad order dated 01/11/2011. The Respected Co-ordinate Bench has also noted that those cross objections were belatedly filed and time-barred by 1170 days as well. Considering the said request of withdrawal, the Bench has decided as follows:-
“3. It may be noted that in all the Cross Objections the assessee challenged initiation of proceedings u/s. 153C of the IT Act. The learned Counsel for the assessee submitted that the grounds of Cross Objections have been decided by the learned CIT(A) against the assessee and submitted that delay in filing the Cross Objections was due to the bona fide belief that the assessee could support the order passed by the learned CIT(A) without filing the Cross Objections because Rule 27 of the Appellate Tribunal Rules permit the Respondent in departmental appeal to support the order appealed against on any of the grounds decided against him. He has, therefore, submitted that the assessee however, due to abandoned precaution filed the Cross Objections. The learned DR submitted that the points raised in the Cross Objections are decided against the assessee by the learned CIT(A) and submitted that the above reason would not disclose any sufficient cause for filing the Cross Objections belatedly. The learned DR submitted that the apprehension of the assessee is misplaced in moving the Cross Objections; therefore, same should be dismissed being time barred. The learned Counsel for the assessee in view of the above facts stated that the assessee may be permitted to withdraw the Cross Objections with liberty to argue the validity of the assessment in the departmental appeal being the Respondent.
4. On consideration of the above facts, we permit the assessee to withdraw the Cross Objections Rule 27 of the Appellate Tribunal Rules provides that the Respondent (assessee) though he may not have appealed, may support the order appealed against him on any of the grounds decided against him. Since the points raised in the Cross Objections have been decided by the learned CIT(A) against the assessee, therefore, remedy under Rule 27 of the Appellate Tribunal Rules is available to the assessee and as such no sufficient cause is disclosed in the affidavit of the assessee for explaining the delay in filing the Cross Objections. The Cross Objections of the assessee are accordingly dismissed as withdrawn with liberty to the assessee to argue the same points at the time of disposal of the departmental appeals. “
2.1 Before we proceed further, we have noticed from the order-sheets of this case that in the past these appeals were adjourned on number of occasion due to the reason that the Ld. Counsel has requested to consolidate these appeals along with an appeal of this very assessee for A.Y 2004-05(ITA No.4575/ahd/2007) and an appeal of Shri Tarun Karia for A.Y. 2004-05 (ITA No. 2310/Ahd/2010). At that time, prima-facie, it was felt that rest of the group of eight appeals, listed in the nomenclature, might be connected with A.Y. 2004-05 appeals. But the fact is that the directions of the Hon’ble Jurisdictional High Court in Tax Appeal No. 1798 of 2010 order dated 19/10/2010 pertained to A.Y. 2004-05 and not for any other assessment years. Otherwise also, the issue involved in the case of Mahendra A. Patel for A.Y. 2004-05 is altogether different because of the fact that as per the grounds of appeal the only objection raised is that ld. CIT(A) ought to have held that the cash and jewellery requisitioned u/s. l32A belonged to the assessee, i.e. Mahendra A. Patel and not Shri Dharan Karia. Likewise, in the case of Tarun D. Karia the issue is in respect of assessment of cash and jewellery in his hands. Considering these reasons, those two appeals for A.Y. 2004-05 have been segregated and we have decided to proceed with this group of eight appeals and those two appeals have been adjourned as per the notings on the order-sheet of those cases. We have made this clarificatory remark to overcome any confusion or misunderstanding, may arise in future.
3. At the start of the hearing, Ld. AR Mr. S.N. Divatia has raised an issue, that in the light of the observation of the ITAT “C” Bench order dt. 1.11.2011 (referred supra), the respondent-assessee is entitled to invoke the provisions of Rule 27 and thereupon wanted to challenge the initiation of proceedings u/s.l53C of the I.T. Act. His vehement contention is that the withdrawal of Cross Objection was conditional as is appearing from the language of the said judgment of the Tribunal. The appellant has a right to raise a legal issue. Since the assessee wants to challenge the initiation of proceedings u/s. l53C of IT Act, therefore the issue being a legal issue therefore the same can be raised at any stage of appeal. He has contested that even though the cross objections have been withdrawn but under Rule 27 of Appellate Tribunal Rules, he may be permitted to raise this legal ground. In support of this contention, reliance is placed on the following decisions:-
