OHM DEVELOPERS vs. DY.C.I.T.

O/TAXAP/214/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 214 of 2004 With TAX APPEAL NO. 215 of 2004 With TAX APPEAL NO. 692 of 2009

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE K.J.THAKER

====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== OHM ORGANISERS....Appellant(s) Versus DY.C.I.T.....Opponent(s) ====================================== Appearance: MR B S SOPARKAR, ADVOCATE for the Appellant(s) No. 1 MR SUDHIR M MEHTA, ADVOCATE for the Opponent(s) No. 1 ====================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE K.J.THAKER

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O/TAXAP/214/2004 JUDGMENT Date : 12/08/2014

ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1. As Tax Appeal No.214/2004 and Tax Appeal No.215/2004 arises out of the impugned common judgment and order passed by the learned Income Tax Appellate Tribunal (hereinafter referred to as ‘the tribunal’) and Tax Appeal No.692/2009 filed by the revenue can be said to be a cross appeal to Tax Appeal No.215/2004 filed by the assessee, all these appeals and as such as there is broad consensus between the learned advocates appearing on behalf of the respective parties to remand the matters to the learned tribunal to decide the same together afresh in accordance with law and on its own merits, all these Tax Appeals are disposed of by this common judgment and order. 2. Tax Appeal No.214/2004 has been preferred by the appellant-assessee-M/s Ohm Organizers challenging the impugned judgment and order passed by the learned tribunal dated 12/11/2003 in IT (SS)A No.321/Ahd/2002 with respect to the block Assessment Years 1990-91 to 1999-2000 and upto 29/10/1999 to consider the following substantial questions of law; (i) Whether the Tribunal was right in law in applying definition of transfer in Section 2(47) to stock in trade? (ii) Whether the Tribunal was right in law in applying definition of transfer in Section 269UA(f) to the case of the assessee? Page 2 of 8

O/TAXAP/214/2004 JUDGMENT 3. Tax Appeal No.215/2004 has been preferred by the appellant-assessee-M/s Ohm Organizers challenging the impugned judgment and order passed by the learned tribunal dated 12/11/2003 in IT(SS)A No.320/Ahd/2002 with respect to the block Assessment Years 1990-91 to 1999-2000 and upto 29/10/1999 to consider the following substantial questions of law; (i) Whether the Tribunal was right in law in applying definition of transfer in Section 2(47) to stock in trade? (ii) Whether the Tribunal was right in law in applying definition of transfer in Section 269UA(f) to the case of the assessee? 4. So far as Tax Appeal No.692/2009 is concerned, the same has been preferred by the appellant-revenue challenging the impugned judgment and order passed by the learned tribunal dated 17/10/2008 in IT(SS)A No.314/Ahd/2002 to consider the following substantial questions of law; (i) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in confirming the order passed by the Commissioner of Income Tax (Appeals) II, Ahmedabad determining total income of the assessee at Rs.2,29,20,847/- against undisclosed income determined by the Assessing Officer at Rs.3,08,30,600/-? (ii) Whether, on the facts and in the circumstances of Page 3 of 8

O/TAXAP/214/2004 JUDGMENT the case, the orders passed by the Income Tax Appellate Tribunal and the Commissioner of Income Tax (Appeals) II, Ahmedabad are contrary to the evidence and material on the record of the case, and, hence, perverse or not? (iii) Whether, on the facts and in the circumstances of the case, the orders passed by the Income Tax Appellate Tribunal and the Commissioner of Income Tax (Appeals) II, Ahmedabad, are based on conjectures and surmises and, hence, perverse or not? (iv) Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in dismissing the appeal of the Revenue on the ground that the appeal filed by the assessee against the order of the Commissioner of Income Tax (Appeals) was earlier disposed of by the Tribunal and, therefore, the Tribunal cannot decide the appeal of the Revenue on merits?” 5. For the sake of convenience, the facts of Tax Appeal No.215/2004 and Tax Appeal No.692/2009 in the case of the assessee-M/s. Ohm Developers are narrated. 6. The facts leading to the aforesaid Tax Appeals in a nutshell are as under; 6.1. That the assessee-M/s. Ohm Developers filed the return of income and thereafter the assessment proceedings under Section 158 BC of the Income Tax Act (hereinafter referred to as ‘the Act’) for the block assessment period 1990-91 to 1999- Page 4 of 8

O/TAXAP/214/2004 JUDGMENT 2000 upto 29/10/1999 came to be initiated by the Assessing Officer on the basis of the search. Vide order dated 30/11/2001 the Assessing Officer framed the assessment under Section 158 BC of Act for the block assessment period 1990-91 to 1999-2000 upto 29/10/1999 whereby he made addition of Rs.2,97,15,401/- as undisclosed income of the block period. Being aggrieved and dissatisfied with the assessment order passed by the Assessing Officer under Section 158 BC of the Act, the assessee-M/s. Ohm Developers preferred appeal before Commissioner of Income Tax (Appeals). Vide order dated 24/09/2002, the learned Commissioner of Income Tax (Appeals) partly allowed the appeal preferred by the assessee whereby he reduced the addition of Rs.2,97,15,401/- made by the Assessing Officer to Rs.2,18,34,648/-. It appears that being aggrieved and dissatisfied with the order passed by the learned Commissioner of Income Tax (Appeals) in partly allowing the appeal and reducing the addition to Rs.2,18,34,648/- and thereby not deleting the entire addition made by the Assessing Officer, the assessee preferred appeal, being IT(SS)A No.320/Ahd/2002. Vide judgment and order dated 12/11/2003, the learned tribunal dismissed the said appeal preferred by the assessee and confirmed the order passed by the learned Commissioner of Income Tax (Appeals) reducing the addition of Rs.2,97,15,401/- made by the Assessing Officer to Rs.2,18,34,648/-. The judgment and order passed by the learned tribunal dated 12/11/2003 in IT(SS)A No.320/Ahd/2002 is the subject matter of Tax Appeal No.215/2004. It appears that against the order passed by the learned Commissioner of Income Tax (Appeals) dated 24/09/2002 in so far as reducing the addition of Rs.2,97,15,401/- made by the Assessing Officer to Page 5 of 8

O/TAXAP/214/2004 JUDGMENT Rs.2,18,34,648/- and not confirming the addition made by the Assessing Officer, the revenue preferred appeal before the learned tribunal, being IT(SS)A No.314/Ahd/2002 and vide judgment and order dated 17/10/2008 the learned tribunal has dismissed the said appeal preferred by the revenue solely on the ground that in the appeal preferred by the assessee, being IT(SS)A No.320/Ahd/2002, the learned tribunal has confirmed the order passed by the learned Commissioner of Income Tax (Appeals) and, therefore, without deciding the appeal preferred by the revenue on merits, by impugned judgment and order dated 17/10/2008 the learned tribunal has dismissed the said appeal, which has given rise to Tax Appeal No.692/2009 preferred by the revenue. 6.2. Now so far as Tax Appeal No.214/2004 preferred by the assessee-M/s. Ohm Organizers is concerned it raises the same questions of law, which are raised by another assessee-M/s. Ohm Developers raised in Tax Appeal No.215/2004. 6.3. Considering the fact that now so far as the appeal preferred by the revenue, being IT(SS)A No.314/Ahd/2002, which was filed by the revenue against the order passed by the Commissioner of Income Tax (Appeals) partly allowing the appeal preferred by the assessee and reducing the addition of Rs.2,97,15,401/- made by the Assessing Officer to Rs.2,18,34,648/-, has not been decided on merits, the matter is required to be remanded to the learned tribunal to decide the said appeal on merits. 6.4. Tax Appeal No.215/2004 is preferred by the assessee against the order passed by the Commissioner of Income Tax Page 6 of 8

O/TAXAP/214/2004 JUDGMENT (Appeals) in partly allowing the appeal confirmed by the learned tribunal and, therefore, if any decision on merits in Tax Appeal No.215/2004 is made it would have direct bearing on the decision in the appeal preferred by the revenue and/or it can be said that if at the conclusion of the hearing of the appeal, if at all the appeal preferred by the assessee, being Tax Appeal No.215/2004 is allowed, in that case, the appeal preferred by the revenue, which is required to be remanded to the learned tribunal may become infructuous. 7. Under the above circumstances, there is a broad consensus between the learned advocates appearing on behalf of the respective parties that the impugned judgment and orders passed by the learned tribunal be quashed and set aside and the appeals be remanded to the learned tribunal to decide the same together afresh in accordance with law and on its own merits. Similarly, as the questions raised in Tax Appeal No.214/2004 are similar / same to those raised in Tax Appeal No.215/2004, there is broad consensus between the learned advocates appearing on behalf of the respective parties that the order passed by the learned tribunal, which is impugned in Tax Appeal No.214/2004, be also quashed and set aside and the matter be remitted to the learned tribunal to decide the same afresh in accordance with law and on its own merits with the aforesaid two appeals. In the facts and circumstances of the case, the request made by the learned advocates appearing on behalf of the respective parties seems to be reasonable and it will be in the interest of both the parties i.e. the assessee as well as the revenue. 8. In view of the above broad consensus between the Page 7 of 8

O/TAXAP/214/2004 JUDGMENT learned advocates appearing on behalf of the respective parties and without further entering into the merits of the case and/or expressing anything on merits and/or without expressing anything on merits with respect to the questions raised in the present Tax Appeals in favour of either parties and in the peculiar facts and circumstances of the case, the impugned order passed by the learned tribunal dated 17/10/2008 in IT(SS)A No.314/Ahd/2002 as well as the impugned orders passed by the learned tribunal dated 12/11/2003 in IT(SS)A No.320/Ahd/2002 and dated 12/11/2003 in IT (SS)A No.321/Ahd/2002 are hereby quashed and set aside and the matters are remitted to the learned tribunal to decide and dispose of all the three appeals together afresh in accordance with law and on its own merits and after giving an opportunity to all the concerned. At the cost of repetition, it is observed that we have not expressed anything on merits in favour of either parties and the learned tribunal to consider the aforesaid appeals in accordance with law and on its own merits. The aforesaid exercise shall be completed by the learned tribunal within a period of six months from today. All these appeals are allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. (M.R. SHAH, J.) (K.J. THAKER, J.) Siji Page 8 of 8