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Income Tax Appellate Tribunal, “ A ” BENCH, AHMEDABAD
Before: SHRI RAJPAL YADAV & SHRI AMARJIT SINGH
आदेश / O R D E R
PER SHRI RAJPAL YADAV, JUDICIAL MEMBER :
The Assessee is in appeals before the Tribunal against the common order of the Learned Commissioner of Income Tax (Appeals)-4, Vadodara [‘CIT(A)’ in short] dated 24/03/2017 passed for Assessment Years (AYs) 2010-11 & 2011-12.
The ld.counsel for the assessee, at the very outset, submitted that assessee has challenged reopening of assessment before the Ld. First & 1576 /Ahd/2017 Samun M. Gajipurwala vs. ITO Asst.Years – 2010-11 & 2011-12 - 2 - Appellate Authority but Ld. First Appellate Authority has not adjudicated this ground of appeal in both the years. She further contended that under Ground No.1, assessee has pleaded before the Tribunal that Ld.CIT(A) has erred in holding that the reopening of assessment was valid by rejecting the contention of assessee.
With the assistance of Ld. Representatives, we have gone through the record carefully. We have also gone through Form No.35 filed before the CIT which contains ground of appeal
raised by the assessee. A perusal of CIT(A)’s order at page No.2 would indicate that Ld.CIT(A) has reproduced the grounds of appeal raised by the assessee and relevant part reads as under:- “3. The grounds of appeal areas under: “1. The reopening of Assessment is bad in law and ab-initio void
1. The Learned Assessing Officer erred in not accepting the explanation furnished by the appellant during the course of assessment proceedings regarding the source of deposit in the bank account being transferred from UAE through proper banking channel.”
4. Perusal of the above would indicate that assessee has challenged the reopening of assessment. However, this ground has not been adjudicated by the Ld. CIT(A). Thus, order of the CIT(A) is not sustainable on this short issue. We accordingly set aside the impugned order in both the years and remit the issue of reopening to the file of & 1576 /Ahd/2017 Samun M. Gajipurwala vs. ITO Asst.Years – 2010-11 & 2011-12 - 3 - Ld.CIT(A) for adjudication. However, in case, this issue is being decided against assessee by the Ld. First Appellate Authority, then assessee will be at liberty to challenge additions on merit along with finding of CIT(A) on this preliminary issue in appeals before the Tribunal in the second round. If the Ld.CIT(A) has accepted the contentions of the assessee, then assessment order(s) would be quashed.
In other words, we are not adjudicating the issue on merit nor we are remitting to them to the file of Ld.CIT(A) because Ld. First Appellate Authority already devoted 39 pages for deciding the issues on merit. Due to above reason, we are reserving the right of the assessee to challenge these additions on merits before the Tribunal in the second round after adjudication of his grounds of appeal on reopening at the end of the Ld. First Appellate Authority.
With the above observation, both the appeals filed by the Assessee are allowed. Order pronounced in the Court on 8th July-2019 at Ahmedabad.