M/s. New Neelkanth Non Trading Association, Ahmedabad V. The Dy.CIT.,Cent.Circle-1(1), Ahmedabad

CO 156/AHD/2010

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8849 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 28 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-08-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 29-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OP VAISHNAVA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 153A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SRI D.K TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTAN T MEMBER DCIT CENTRAL CIRCLE 1(1) AHMEDABAD (APPELLANT) VS NEW NEELKANTH NON TRADING ASSOCIATION, 305, SAHAJANAND PLAZA, BHATTAM PALDI, AHEMDABAD PAN: AAAAN4703C (RESPONDENT) NEW NEELKANTH NON TRADING ASSOCIATION, 305, SAHAJANAND PLAZA, BHATTAM PALDI, AHEMDABAD PAN: AAAAN4703C (CROSS OBJECTOR VS DCIT CENTRAL CIRCLE 1(1) AHMEDABAD (RESPONDENT) IT(SS)A NOS. 280, 281 &282/AHD/2010 ASSESSMENT YEAR 2002-03,03-04,04-05 CO NOS. 154,155 & 156/AHD/2010 ASSESSMENT YEAR 2002-03,03-04,04-05 ITA NO. 1042/AHD/2010 ASSESSMENT YEAR 2005-06 I.T(SS).A NO.280-282 /AHD/2010 & CO NOS 154-56/AHD/ 2010 PAGE NO & ITA NO. 1042/AHD/2010 A.Y. 2002-03,03-04, 04-05 &2005-06 DCIT VS. NEELKANTH NON TRADING ASSOCIATION 2 DCIT CENTRAL CIRCLE 1(1) AHMEDABAD (APPELLANT) VS NEW NEELKANTH NON TRADING ASSOCIATION, 305, SAHAJANAND PLAZA, BHATTAM PALDI, AHEMDABAD PAN: AAAAN4703C (RESPONDENT) REVENUE BY: SRI OP VAISHNAVA, CIT-D.R. ASSESSEE BY: SRI ASSEM L. THAKKAR, A .R. DATE OF HEARING : 27-08-2013 DATE OF PRONOUNCEMENT : 27-08-20 13 / ORDER PER BENCH:- FOUR REVENUES APPEALS AND THREE COS OF ASSESSEE H AVE BEEN FILED AGAINST THE ORDER OF LD. CIT(A)-III DATED 21-01-201 0. FIRST WE WILL TAKE UP REVENUES APPEALS 2. REVENUE HAS TAKEN FOLLOWING COMMON GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FA CTS IN DELETING THE ADDITION OF RS. 31,26,770 /- MADE ON ACCOUNT OF UNE XPLAINED CASH CREDITS. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN ADMITTING ADDITIONAL EVIDENCE IN CONTRAVENTION OF RULE 46A OF THE I.T. RULES, 1962. HE HAS ALSO NOT ACCORDED THE ASSESSING OFFICE R AN OPPORTUNITY OF BEING HEARD AND TO REBUT THE EVIDENCE PRODUCED B Y THE ASSESSEE IN CONTRAVENTION TO THE RATIO LAID DOWN BY THE GUJARAT HIGH COURT IN THE CASE OF CIT(GUJARAT) VS. VALIRAM BHERUMAL, 134 1TR 214. I.T(SS).A NO.280-282 /AHD/2010 & CO NOS 154-56/AHD/ 2010 PAGE NO & ITA NO. 1042/AHD/2010 A.Y. 2002-03,03-04, 04-05 &2005-06 DCIT VS. NEELKANTH NON TRADING ASSOCIATION 3 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN STATING THAT THE LEGAL DECISIONS CITED BY THE ASSESSEE ARE RELEVANT IN THE CONTEXT OF PROCEEDINGS U/S. 153C PARTICULARLY. 3. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT AO MADE ADDITION U/S. 68 OF THE ACT TOTALING RS. 31 ,26,770/-, 4,62,000/-, 20,00,000 AND 20,60,000/- IN RESPECT OF ASSESSMENT YEARS 2002-03, 03-04, 04-05 & 2005-06 RESPECTIVELY TREATING THEM AS CASH CREDIT IN THE ABSENCE OF ANY DETAILS FILED BY ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE BY DELETING THESE ADDITIONS AFTER ACCEPTING ADDITIONAL EVIDENCE IN RESPECT OF THESE TRANSACTION S WITHOUT GIVING ANY OPPORTUNITY TO THE AO TO COMMENT ON THE ADDITIONAL EVIDENCE FILED BY ASSESSEE BEFORE HIM. THUS THERE IS CLEAR VIOLATION OF RULE 46A OF THE INCOME TAX RULES AND IS IN CONTRAVENTION OF THE RATIO AS L AID DOWN BY THE GUJARAT HIGH COURT IN THE CASE OF CIT VS. VALIRAM BHERUMAL 134 ITR 214, THEREFORE THE MATTER IS RESTORED BACK TO THE FILE OF LD. CIT( A) FOR FRESH ADJUDICATION AFTER GIVING OPPORTUNITY TO THE AO TO COMMENT ON TH E ADDITIONAL EVIDENCE RELIED BY THE ASSESSEE BEFORE HIM. ALL THE APPEALS OF REVENUE ARE ALLOWED FOR STATISTICAL PURPOSE. NOW COMING TO THE COS FILED BY THE ASSESSEE 4. COMMON GROUNDS TAKEN IN ALL THESE COS READ AS U NDER:- 1. LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE OF THE A.O. IN PASSING AN ORDER U/S. 153A(B)/153C R.W.S.153A OF THE IT.ACT, 1961 WHICH IS ILLEGAL AND BAD IN LAW HENCE THE SAME REQUIRES TO BE CANCELLED. I.T(SS).A NO.280-282 /AHD/2010 & CO NOS 154-56/AHD/ 2010 PAGE NO & ITA NO. 1042/AHD/2010 A.Y. 2002-03,03-04, 04-05 &2005-06 DCIT VS. NEELKANTH NON TRADING ASSOCIATION 4 2. THE LEANED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE CANCELLED THE ASSESSMENT MADE BY THE ASSESSING OFFICER AS HE HIMSELF STATED IN THE ASSESSMENT ORDER SO PASSED TH AT THE SEIZED BOOKS OF ACCOUNTS AND DOCUMENTS HAVE BEEN EXAMINED AND NO UNDISCLOSED INCOME OR ASSET RELATING TO THE YEAR UNDER APPEAL H AS BEEN DETECTED AS A RESULT OF THE SEARCH AND HENCE NO ADDITION REGARD ING UNDISCLOSED INCOME IS MADE U/S.153A(B)OF THE ACT. 5. ASSESSEE HAS CHALLENGED THE ORDER OF LD. CIT(A) IN CONFIRMING THE ACTION OF AO IN PASSING AN ORDER U/S 153A(B)/153C R .W.S. 153A OF THE ACT. 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT LD. CIT(A) THOUGH ADMITTED ADDITIONAL GROUND TAKEN BY THE ASSESSEE IN RESPECT OF INITIATION OF PROCEEDINGS U/S. 153C AGAI NST HIM AND SUBMISSIONS OF THE ASSESSEE HAVE ALSO BEEN DULY REPRODUCED IN HIS ORDER BUT THERE IS NO FINDING GIVEN ON THE ISSUE. THEREFORE MATTER IS RE STORED BACK TO THE FILE OF LD. CIT(A) FOR GIVING HIS FINDING ON THE ADDITIONAL GROUND ADMITTED BY HIM IN THE LIGHT OF SUBMISSION MADE BY THE ASSESSEE BEF ORE HIM. ALL THE COS FILED BY THE ASSESSEE ARE ALSO ALLOWED FOR STATISTI CAL PURPOSE. 7. IN THE RESULT THE APPEALS FILED BY THE REVENUE A ND COS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (ANIL CHATURVEDI) ( D.K. TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 27/08/2013 AK I.T(SS).A NO.280-282 /AHD/2010 & CO NOS 154-56/AHD/ 2010 PAGE NO & ITA NO. 1042/AHD/2010 A.Y. 2002-03,03-04, 04-05 &2005-06 DCIT VS. NEELKANTH NON TRADING ASSOCIATION 5 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,