IN HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 1484 of 2007 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI Sd/- and HONOURABLE MR.JUSTICE K.J.THAKER Sd/- 1 Whether Reporters of Local Papers may be allowed to see No judgment ? 2 To be referred to Reporter or not ? No 3 Whether their Lordships wish to see fair copy of No judgment ? 4 Whether this case involves substantial question of law as No to interpretation of Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? No COMMISSIONER OF INCOME TAXAHMEDABAD - IV Appellant(s) Versus JITENDRA P. CHOTALIA Opponent(s) Appearance: MR NITIN K MEHTA, ADVOCATE for Appellant(s) No. 1 MR SN DIVATIA, ADVOCATE for Opponent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and Page 1 of 6 Downloaded on : Tue Mar 24 12:09:55 IST 2020 O/TAXAP/1484/2007 JUDGMENT HONOURABLE MR.JUSTICE K.J.THAKER Date : 12/12/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. Heard learned Advocates for respective parties. 2. By way of this Appeal, appellant Department has challenged order dated 16.03.2007 passed by Income Tax Appellate Tribunal, A'bad Bench 'D' in M.A. No.191/Ahd/2006 in IT(SS)A No.199/Ahd/1997 for Block Period : 01/04/1985 to 31/03/1995 & 01/04/1995 to date of search. 3. While admitting matter on 29.02.2003, following questions of law were framed for consideration by Court :- A. Whether Appellate Tribunal is right in law and on facts in allowing Misc. Application preferred by assessee and recalling its earlier order, which was passed on merits? B. Whether order passed by Tribunal allowing Misc. Application does not tantamount to review of its earlier order? Page 2 of 6 Downloaded on : Tue Mar 24 12:09:55 IST 2020 O/TAXAP/1484/2007 JUDGMENT 4. Vide above order, Tribunal had recalled its own order dated 19.04.2005 in No.IT(SS)A/199/AHD/1997. 5. case in brief is as under :- business and residential premises of assessee were searched u/s. 132 of IT Act on 20.03.1996, which concluded on 21.03.1996. assessment was completed u/s.158BC r.w.s. 144 of I.T. Act on 17.09.1997 determining undisclosed income of Rs.34,56,640/= after considering returned income filed by assessee. Aggrieved by order of Assessing Officer, assessee filed Appeal against order passed u/s. 144 of IT Act before Appellate Tribunal. Appellate Tribunal in its order dated 19.04.2005 observed that Assessing Officer failed to consider assessee's oral submissions as well as written submissions made as per letters dated 08.09.1997, 12.09.1997 and 16.09.1997. Considering above facts, Appellate Page 3 of 6 Downloaded on : Tue Mar 24 12:09:55 IST 2020 O/TAXAP/1484/2007 JUDGMENT Tribunal set aside assessment of Block period and directed Assessing Officer to frame assessment of assessee for block period De novo in accordance with law and after allowing assessee proper opportunity of being heard. Assessing Officer accordingly finalised and set aside assessment u/s. 158BC r.w.s. 153(3) & 254 of I.T. Act on 22.12.2006 on total income of Rs.35,56,640/- raising tax demand of Rs.20,73,984/-. In meantime, Appellate Tribunal recalled its own order dated 19.04.2005. 6. Having heard learned Advocates appearing for respective parties and perusing records of case, we are of view that question as to whether review is maintainable or not is squarely covered by decision of this Court in Tax Appeal No.627/2012 (Coram : M.R. Shah, J. & R.P. Dholaria, J.). Paragraph 2 of said decision reads as under :- Page 4 of 6 Downloaded on : Tue Mar 24 12:09:55 IST 2020 O/TAXAP/1484/2007 JUDGMENT 2. As held by this Court in Special Civil Application No.15074 of 2013, against order passed by learned Income Tax Appellate Tribunal dismissing Rectification Application, appeal under Section 260A of Income Tax Act would not be maintainable. Hence, present appeal is dismissed as not maintainable. However, liberty is reserved in favour of appellant to prefer Special Civil Application under Article 226/227 of Constitution of India challenging impugned order passed by learned Tribunal in rejecting Rectification Application and as and when such proceedings are initiated, same be considered in accordance with law and on merits. With this, present appeal is disposed of as not maintainable. 7. In aforesaid circumstances, this Tax Appeal stands disposed off with liberty to Appellant to take recourse to law by preferring Special Civil Application. In that view of matter, we have not answered questions of law posed for our consideration as we have not dealt with matter on merits. Page 5 of 6 Downloaded on : Tue Mar 24 12:09:55 IST 2020 O/TAXAP/1484/2007 JUDGMENT Sd/- (K.S. JHAVERI, J.) Sd/- (K.J. THAKER, J.) Commissioner of Income-tax, Ahmedabad - IV v. Jitendra P. Chotalia