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TMI Blog2016 (12) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... on order for the sake of convenience. 2. Following grounds raised by the assessee(s) in their respective appeals:- IT(SS)A No. 233/Ahd/2012: Assessee- CIMS Hospital Pvt Ltd The Learned Commissioner (Appeal) erred in fact and in law in directing the addition of Rs. 3,20,000/- in the hands of Dr. Keyur Parikh as unaccounted cash balance in assessment year 2009-10 which was given by him to the appellant-company. ITA No. 1912/Ahd/2015 : Assessee- Dr. Keyur Harsadrai Parikh 1. The learned Commissioner (Appeals) erred in fact and in law in accepting the validity of the re-opening of the case u/s 148 only on the basis of the findings of the Hon'ble Commissioner (Appeals)-III, Ahmedabad in the appellate order dated 27.01.2012 in case of CIM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h amount of Rs. 4,25,000/- as on 31.03.2008 does not prove that the amount of Rs. 4,25,000/- is explained for income tax purposes also. The AO is therefore directed to tax the balance cash of Rs. 3,20,000/- in the hands of Dr. Keyur Parikh in assessment year 2009-10 and not in the hands of the appellant-company." 3.1 Based on this finding, completed assessment of Dr. Keyur Parikh was re-opened u/s 148. During the course of reassessment, feeling bound by the direction issued by ld. CIT(A), the AO rejected explanation that it had the source and accepted Dr. Parikh's contributing this amount and the transaction being reflected in his wealth-tax return. The addition was accordingly made. 3.2 Aggrieved, assessee preferred first appeal, where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd added in a third party's assessment without hearing the affected party. This is against the principle of natural justice and amounts to an untenable direction. Same being non-est cannot be a valid foundation for re-opening of assessment in the hands of Dr. Keyur Parikh. Reliance is placed on the decision of ITAT, Ahmedabad "D" Bench in the case of ITO vs. Biotech Ophthalmic Pvt Ltd in ITA No.443/Ahd/2011 and CO No.71/Ahd/2011, wherein ITAT while deciding assessee's cross-objection has decided the following grounds:- "9. The assessee has also moved a cross-objection which seeks to expunge CIT(A)'s directions to bring this deemed dividend to tax in the hands of Shri Mehul P. Asnami, director in assessee's company." 4.1 ITAT dealt with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged, in appeal before us, by a third party, the only way to prevent these directions reaching the finality is a challenge by this assessee himself, particularly because, as is the settled legal position, the statutory provisions are to be construed ut res magis valeat quam pereat i.e., in such a manner as to make it workable rather than redundant. The assessee before us, therefore, has, in our considered view, locus standi to challenge legality of these directions. 20. In view of the above discussions, and bearing in mind entirety of the case, we vacate the directions in questions. The cross objection is thus allowed." 4.2 Thus, it is pleaded that ld. CIT(A) was unjustified in giving such a direction to add the impugned amount in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor who was not a party to the CIMS Hospital Pvt Ltd appeal proceedings. The subject matter before him was whether the amount was liable for addition in the case of CIMS Hospital Pvt Ltd or not. Since the ld. CIT(A) exceeded his jurisdiction in giving this direction which does not fall within the four corners of his powers enshrined in this behalf, following the Co-ordinate Bench decision in the case of Biotech Ophthalmic Pvt Ltd (supra), we expunge the direction of ld. CIT(A) contained to this effect in the case of CIMS Hospital Pvt Ltd. 8. Adverting to the appeal of Dr. Keyur Parikh, since the assessment has been re-opened only on the basis of a direction issued by ld. CIT(A) in CIMS Hospital Pvt Ltd case which is held to be untenable an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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