Shri Bhadreshbhai Shivubhai Patel, Mehsana V. The Income tax Officer, Ward-1, Mehsana

CO 206/AHD/2006

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 4763 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-07-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 25-08-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVATIA
• Keywords: Business income; Principle of natural justice; Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER DATE OF HEARING : 08/07/2010 DRAFTED ON: 09 /07/2010 ITA NO.1548/AHD/2006 ASSESSMENT YEAR : 2000-01 THE ITO WARD-1 MEHSANA VS. SHRI BHADRESH SHIVABHAI PATEL C/O. SWEET SHOP APNA BAZAR,MEHSANA PAN/GIR NO. : ABNPP 3387 R (APPELLANT) .. (RESPONDENT) AND CO NO.206/AHD/2006 (ARISING OUT OF ITA NO.1548/AHD/2006) SHRI BHADRESH SIVABHAI PATEL VS. THE ITO MEHSANA WARD-1, MEHSANA (CROSS OBJECTOR) .. (RESPON DENT) ASSESSEE BY : SHRI S.N. DIVATIA REVENUE BY : SHRI K.MADHUSUDAN, SR.D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : REVENUE AND THE ASSESSEE ARE RESPECTIVELY HAVE FIL ED AN APPEAL AND A CROSS OBJECTION ARISING FROM THE COMMON ORDER OF LEARNED CIT(APPEALS)-XXI, AHMEDABAD DATED 29/04/2005. W E SHALL FIRST PROCEED WITH THE REVENUES APPEAL. ITA NO.1548/AHD/2006 (REVENUES APPEAL) 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION MADE BY THE A.O. ON ACCOUNT OF ESTIMAT ED BUSINESS INCOME OF RS.4,10,787/-. ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 2 - 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.144 F THE I.T. ACT, 1961 DATED 29/03/20 04 WERE THAT THE ASSESSEES CASE WAS RE-OPENED VIDE A NOTICE U/S.148 OF THE I.T. ACT, 1961. THE REASON FOR RE-OPENING AS GIVEN BY THE ASSESSING OFFICER WERE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IN AN ANOTHER CASE OF VIMAL OIL & FOODS LTD. FOR4 ASSESSMENT YEAR 2000-01, IT W AS OBSERVED THAT ONE SHRI BHADRESH SHIVABHAI PATEL HAD SUPPLIED GUN NY BAGS TO THE SAID COMPANY FOR A SUM OF RS.10,30,025/-. A STATEMENT OF SHRI BHADRESH SHIVABHAI PATEL WAS RECORDED. ACCORDING TO ASSESS ING OFFICER, SHRI BHADRESH SHIVABHAI PATEL HAS CONVEYED THAT HE HAD N OT FILED ANY RETURN OF INCOME. IT WAS ALSO MENTIONED THAT THE TRANSAC TION WITH VIMAL OIL & FOODS LTD. WAS NOT SHOWN. IT WAS ALSO TOLD THAT TH E SUPPLY TO VIMAL OIL & FOODS LTD. WAS CARRIED OUT BY THREE OTHER CON CERNS, HOWEVER, THEIR PROPRIETORS HAVE MADE A STATEMENT THAT ALL THE TRAN SACTIONS WERE ACTUALLY CARRIED OUT BY SHRI BHADRESH SHIVABHAI PATEL AND TH OSE PROPRIETORS WERE MERELY ACTED AS A NAME LENDER. ON THE BASIS OF T HEIR STATEMENTS, THE ASSESSING OFFICER HAS FURTHER VERIFIED FEW FACTS AN D THEREAFTER COMMENTED THAT THOSE TWO PROPRIETORS WERE THE PERSO NS OF NO MEANS AND MERELY LENT THEIR NAMES, HOWEVER, THE BUSINESS WAS ACTUALLY CARRIED OUT BY SHRI BHADRESH SHIVABHAI PATEL. THAT INFORMATIO N FROM ACIT MEHSANA WAS PASSED ON TO THE ITO OF THE ASSESSEE. ON ENQUIRY AND INVESTIGATION IT WAS FOUND THAT THE CHEQUES WERE AC TUALLY ENCASHED BY THE ASSESSEE AND NOT BY THOSE CONCERNS. IT WAS ALSO FOUND THAT ALONGWITH HIS BROTHERS TWO PARTIES WERE LENDING THEIR NAMES BY OP ENING BANK ACCOUNTS. THE ASSESSING OFFICER HAS THEN ALSO RECORDED THE ST ATEMENT OF S/SHRI DINESHBHAI CHATURBHAI PATEL AND RAMESHBHAI CHHAGANB HAI PATEL. IN ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 3 - THEIR STATEMENTS, THEY HAVE REVEALED THAT THE WORK WAS MANAGED BY THE ASSESSEE AND ON ACCOUNT OF HIS INSTRUCTION, THE BAN K ACCOUNTS WERE OPENED IN THEIR NAMES. THE ASSESSING OFFICER HAS ISSUED AN ELABORATE NOTICE AND THEREIN A STRONG ALLEGATION WAS MADE THA T THE SAID TWO PERSONS WERE ACTING AS A DUMMY OF THE ASSESSEE AND NOT PERF ORMED ANY ACTUAL TRANSACTION. THOUGH A DETAILED NOTICED WAS SERVED UPON THE ASSESSEE, BUT THE ADMITTED FACTUAL POSITION AS MENTIONED BY THE A SSESSING OFFICER WAS THAT THE ASSESSEE HAD NOT RESPONDED. THEREAFTER, F EW MORE OPPORTUNITIES WERE GIVEN. SINCE THE ASSESSEE HAS NOT AVAILED T HOSE OPPORTUNITIES, THEREFORE, FINALLY THE ASSESSING OFFICER HAS TAXED THE SAME IN THE HANDS OF THE ASSESSEE. HE HAS DRAWN THE CONCLUSION; IN V IEW OF THE STATEMENT; THAT THE SUPPLY OF EMPTY TIN BOXES IN THEIR NAMES O F PROPRIETORSHIP- CONCERN WAS NOT ACTUALLY DONE BY THEM BUT THEY HAVE ACTED MERELY AS A NAME LENDER. IT HAS ALSO BEEN FOUND BY THE ASSESS ING OFFICER THAT THE CHEQUE BOOKS WERE IN POSSESSION OF THE ASSESSEE. IT WAS CONCLUDED THAT ONCE THESE TWO PERSONS IN THEIR RESPECTIVE STATEMEN TS RECORDED U/S.131 OF THE I.T. ACT, 1961 HAVE DECLARED ON OATH THAT THEY HAD OPENED THE BANK ACCOUNTS AS PER INSTRUCTIONS OF THE ASSESSEE AND AL SO SIGNED THE FRONT AS WELL AS THE OVERLEAF OF THE CHEQUES AND RETURNED TH OSE CHEQUE BOOKS TO THE ASSESSEE, THEREFORE, THE ASSESSEE WAS THE MAIN PERSON WHO HAS CONTROVERTED THE AFFAIRS IN RESPECT OF THE SUPPLY OF THE EMPTY TINS. THE ASSESSING OFFICER THEREAFTER MENTIONED THAT THE TOT AL SALES BY THREE SAID CONCERNS WAS TO THE TUNE OF RS.2,05,39,366/-, HOWEV ER, THE PEAK CREDIT BALANCE IN THE BANK ACCOUNT WAS TO THE TUNE OF RS.6,50,613 /-. ACCORDINGLY, AN ADDITION OF RS.6,50,613/- WAS MADE WHICH WAS CHALLENGED. THERE IS ONE MORE ADDITION PERTAINING TO THE NET INCOME ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 4 - ADDITION AND THE ACTION OF THE ASSESSING OFFICER WA S THAT THE PURCHASE AND SALE OF EMPTY TIN BOX EARNS A BUSINESS PROFIT F ROM 1.96% TO 1.98%. THE ASSESSING OFFICER HAS ESTIMATED THE PROFIT AT 2 % ON THE SAID TURNOVER OF RS.2,05,39,336/-, THEREFORE, THE NET INCOME ON T HE SAID SALE WAS TAXED AT RS.4,10,787/-. 2.1. WHEN THE ISSUE WAS CARRIED BEFORE THE FIRST A PPELLATE AUTHORITY, THE LEARNED CIT(APPEALS) HAS MADE A CRYPTIC FINDING AND FOR THE SAKE OF READY REFERENCE, RELEVANT PORTION IN RESPECT OF THE ADDITION OF RS.4,10,787/- IS REPRODUCED BELOW:- THE JUDGMENTS OF THE ABOVE HON'BLE HIGH COURT SQUA RELY OVER THE POSITION INVOLVED IN THE CASE OF THE APPELLANT. THE ASSESSING OFFICER DID NOT PROVIDE THE OPPORTUNITY TO THE APPE LLANT OF CROSS- EXAMINING THE TWO PERSONS ON THE BASIS OF WHOSE STA TEMENTS IT WAS HELD THAT THE APPELLANT HAD ACTUALLY MADE THE SALES AS AGAINST THE FACT THAT THE SALES WERE IN THE NAME OF CONCERNS OW NED BY THE ABOVE TWO PERSONS NAMELY SHRI DINESHBHAI C.PATEL & SHRI RAMESH C.PATEL. I ALSO FIND THAT THE ASSESSMENT I N THE CASE OF DINESH C.PATEL & SHRI RAMESHBHAI C.PATEL HAVE BEEN COMPLETED CONSIDERING THE TURNOVER OF THEIR PROPRIETARY CONCE RNS VIZ. SUVARNA ENTERPRISES, BHAKTI ENTERPRISES & RAVI TRAD ING COMPANY. IN VIEW OF THIS, I HOLD THAT THE ADDITION OF ESTIMATED INCOME ON THE TRANSACTIONS OF RS.2,05,39,366/- IN T HE NAME OF ABOVE THREE CONCERNS IS NOT JUSTIFIED AND THEREFORE ADDITION OF RS.4,10,787/- IS DELETED. 2.2. AS FAR AS THE ADDITION OF RS.6,50,613/- WAS CO NCERNED, THE LEARNED CIT(APPEALS) HAS PARTLY CONFIRMED BY OBSERVING AS U NDER:- ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 5 - THERE IS NO PROPER EXPLANATION OFFERED BY THE APPE LLANT FOR THE ABOVE OBSERVATION MADE BY THE ASSESSING OFFICER. IT IS NOT EXPLAINED AS TO HOW THE CHEQUES ISSUED BY OTHER PER SONS WERE ENCASHED BY THE APPELLANT AND PAYMENT WAS RECEIVED. IN VIEW OF THIS, I HOLD THAT THE APPELLANT IS LIABLE TO BE TAX ED FOR THE INCOME ON THE AMOUNT OF THESE TRANSACTIONS WHICH TOTALS TO RS.17,55,000/-. THE ASSESSING OFFICER HAS ESTIMATED THE INCOME @ 2% ON THE AMOUNT OF OTHER TRANSACTIONS. HENCE, CALCULATING @ 2% THE INCOME WORKS OUT TO RS.35,100/-. SAME IS HELD TO BE THE INCOME OF THE APPELLANT. THEREFORE, TO THIS EXTENT OF RS.35, 100/- THE ADDITION IS CONFIRMED AGAINST THE ADDITION OF RS.6,50,613/-. 3. FROM THE SIDE OF THE REVENUE, SHRI K.MADHUSUDAN LEARNED DEPARTMENTAL REPRESENTATIVE APPEARED AND VEHEMENTL Y OBJECTED THE MANNER IN WHICH THE LEARNED CIT(APPEALS) HAS GRANTE D THE RELIEF BY HOLDING THAT IN THE ABSENCE OF CROSS-EXAMINATION OF THE TWO PERSONS, THE ASSESSING OFFICER HAD WRONGLY ASSESSED THE AMOUNT. HIS ARGUMENT WAS THAT THE ASSESSING OFFICER HAS GRANTED NUMBER OF OP PORTUNITIES TO THE ASSESSEE, BUT HE HAS NOT AVAILED ALL THOSE OPPORTU NITIES, THEREFORE, AT LAST THE ASSESSING OFFICER HAD NO OPTION BUT TO COMPLET E THE ASSESSMENT U/S.144 OF THE I.T. ACT, 1961. THE LEARNED DEPARTM ENTAL REPRESENTATIVE HAS ALSO VEHEMENTLY OBJECTED THAT IF AT ALL, THE LE ARNED CIT(APPEALS) WAS OF THE OPINION THAT THE EVIDENCES SO PLACED BEFORE HIM WERE FAVOURABLE TO THE ASSESSEE, THEN THE REVENUE DEPARTMENT SHOULD AL SO HAVE BEEN GIVEN A CHANCE OF HEARING AS ALSO EXAMINATION OF THE NEW EV IDENCES AS PRESCRIBED UNDER RULE 46A OF THE I.T. RULES, 1962. 4. FROM THE SIDE OF THE RESPONDENT-ASSESSEE, SHRI S .N. DIVATIA, LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE A PPEARED AND CITED ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 6 - FEW DECISIONS MAINLY IN SUPPORT OF THE ARGUMENT THA T NO ADDITION SHOULD BE MADE BY THE ASSESSING OFFICER MERELY ON THE BASI S OF A STATEMENT IF THE OPPORTUNITY OF CROSS-EXAMINATION HAS NOT BEEN G RANTED TO THE ASSESSEE. THE DECISIONS ARE IN THE FOLLOWING CASE S:- SL.NO(S) DECISION IN THE CASE OF REPORTED/RELIED IN 1. DY.CIT VS. MAHENDRA AMBALAL PATEL (2010) 40 DTR (GUJ.243 2. CIT VS. SMC SHARE BROKERS LTD. (2007) 288 ITR 345(DELHI) 3. CIT VS. TRANS ASIA SECURITIES (P) LTD. [SLP (C)NO.20015 OF 2009) 322 ITR 02 (STATUTES) 4. ITO VS. SHREE SHAKTI COTTON P.LTD. ITAT BENCH B IN ITA NO.528/AHD/2005 FOR ASSESSMENT YEAR 2001-02), DTD 30/01/2009 5. ON HEARING THE SUBMISSIONS OF BOTH THE SIDES AT SO ME LENGTH AS WELL AS ON CAREFUL PERUSAL OF THE IMPUGNED ASSESSME NT ORDER, WE ARE OF THE VIEW; EVEN AT THE OUTSET; THAT THIS IS NOT THE CASE WHERE THE ASSESSEE WOULD HAVE ASKED FOR THE CROSS-EXAMINATION OF THE P ERSONS WHO HAVE GIVEN THE STATEMENT AND THE REVENUE HAD DISCARDED THE REQUEST BY NOT GIVING THE CHANCE TO THE ASSESSEE. ON THE CONTRA RY THROUGH ASSESSMENT ORDER IT IS VERY MUCH GLARING AND EVIDENT THAT THE ASSESSING OFFICER HAD MADE ALL EFFORTS FIRSTLY TO BRING TO THE NOTICE OF THE ASSESSEE THE INFORMATION GATHERED BY THE REVENUE DEPARTMENT AND THEREAFTER ALSO ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 7 - ISSUED SEVERAL NOTICES AND SHOW-CAUSE NOTICES PROVI DING OPPORTUNITIES TO THE ASSESSEE TO REBUT THE SAME. FROM THE SIDE OF T HE REVENUE, THE LEARNED DEPARTMENTAL REPRESENTATIVE SHRI K.MADHUSUD AN HAS CITED THE DATES ON WHICH THE ASSESSING OFFICER HAD GRANTED OP PORTUNITIES AFTER OPPORTUNITIES TO THE ASSESSEE BUT THE SAME WERE NOT AVAILED. THIS IS THE REASON FOR WHICH WE ARE NOT CONVINCED WITH THE ARGU MENT OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE THAT BECA USE OF THE OPPORTUNITY OF CROSS-EXAMINATION NOT GRANTED BY THE ASSESSING O FFICER TO THE ASSESSEE, SO THE ENTIRE ADDITION HAS TO BE DELETED. RATHER, CONSIDERING THE FACTS OF THE CASE AND THE COMMENTS NARRATED IN THE ASSESSMENT ORDER IT IS VERY DIFFICULT FOR US TO ACCEPT SUCH LEGAL PROPOSIT ION AS RAISED BY THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE A ND THE CONSEQUENCE WOULD BE THAT THEREUPON FIXING THE BLAME ON THE RE VENUE. IT WOULD BE VERY UNFAIR AND UNJUST TO THE REVENUE DEPARTMENT I F WE HOLD SO. THE ADMITTED FACTUAL POSITION IS THAT THE ASSESSING OFF ICER WAS AWARE ABOUT HIS RIGHTS AND DUTIES, AS GATHERED FROM THE ASSESSM ENT ORDER, HENCE, PLACED ALL THE INFORMATIONS, WHICH WERE IN HIS POSS ESSION, TO THE KNOWLEDGE OF THE ASSESSEE BY ISSUING NOTICES BUT TH E ASSESSEE HAD CHOSEN NOT TO COMPLY THE SAME. SINCE IT WAS SO, THEN TH E FIRST APPELLATE AUTHORITY HAS CERTAIN DISCRETION TO DECIDE AN ISSUE WHICH HAS OTHERWISE NOT BEEN PROPERLY CONTESTED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER, UNDOUBTEDLY, BUT WITHIN THE AMBITS OF PRESCRIBED R ULE, I.E. INCOME TAX RULE 46 OF I.T. RULES, 1962. THIS RULE HAS PROVID ED THAT IN GENERAL AN APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE T HE LEARNED CIT(APPEALS) ANY EVIDENCE WHETHER ORAL OR DOCUMENTA RY OTHER THAN THE EVIDENCE PRODUCED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 8 - PROCEEDINGS BEFORE THE ASSESSING OFFICER. HOWEVER, THE EXCEPTIONS ARE THAT WHERE THE ASSESSING OFFICER HAS REFUSED TO ADM IT SUCH EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED BY HIM, OR THE AS SESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHI CH WERE CALLED UPON OR WHERE THE ASSESSING OFFICER HAD PASSED THE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE SU CH EVIDENCES, THEN LEARNED CIT(APPEALS) IS EMPOWERED TO EXERCISE HIS D ISCRETION IN FAVOUR OF THE ASSESSEE BY ACCEPTING THE SAME. FROM THE RE CORDS OF THE CASE AS PLACED BEFORE US WE CAN GIVEN A FINDING THAT THE AS SESSEES CASE HAD NOT FALLEN UNDER ANY OF THESE EXCEPTIONS. THE STATUTE HAS TAKEN CARE OF ALL THE EVENTUALITIES, HENCE, THEREFORE, MADE A PROVISION T HAT THE LEARNED CIT(APPEALS) CAN ADJUDICATE UPON AN EVIDENCE IF ALL OWS A REASONABLE OPPORTUNITY TO EXAMINE THOSE EVIDENCES TO THE ASSES SING OFFICER. EVEN THIS DISCRETION HAS NOT BEEN EXERCISED BY THE PRESE NT LEARNED CIT(APPEALS) BECAUSE EVIDENTLY THERE IS NO MENTION OF ANY REFERENCE OF THE ASSESSING OFFICER ABOUT GRANTING HIM A CHANCE O F EXAMINATION OF THOSE EVIDENCES. MEANING THEREBY THE LEARNED CIT(A PPEALS) HAS CLEARLY INFRINGED THE PROVISIONS OF RULE 46 OF I.T. RULES, 1962. 5.1. IN A SITUATION LIKE THIS, WHEN AN ASSESSMENT H AS BEEN MADE U/S.144 OF THE I.T. ACT, 1961, I.E. AN EX-PARTE ASSESSMENT AGAINST THE ASSESSEE WHO HAD NOT SUBMITTED OR ADDUCED THE RELEVANT EVID ENCES TO THE ASSESSING OFFICER, WHATEVER MAY BE THE REASON, AND ON THE OTHER HAND, THE LEARNED CIT(APPEALS) TAKEN A COGNIZANCE OF CERT AIN EVIDENCES ADMITTEDLY WITHOUT PROVIDING OPPORTUNITY OF CROSS-E XAMINATION TO THE ASSESSING OFFICER, THEN WE ARE LEFT WITH NO OPTION BUT TO RESORT TO RESTORE ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 9 - THE ENTIRE MATTER BACK TO THE STAGE OF LEARNED CIT( APPEALS) WITH A CLEAR DIRECTION TO DECIDE THIS APPEAL IN TERMS OF THE CON DITIONS LAID DOWN IN RULE 46 OF THE I.T. RULE, HOWEVER NEEDLESS TO MENTI ON THAT HE HAS TO FOLLOW THE NATURAL JUSTICE IN GRANTING PROPER OPPOR TUNITY TO BOTH THE SIDES. GENERALLY, SENDING AN APPEAL BACK TO REVENUE DEPART MENT IS BEING AVOIDED BY THIS FORUM, I.E. ITAT SO AS TO GIVE QUIC K DISPOSAL. BUT UNDER CERTAIN SPECIFIC CIRCUMSTANCES, AS IS IN THE PRESEN T CASE, EVENTHOUGH BY REFERRING THIS GROUND BACK TO THE STAGE OF LEARNED CIT(APPEALS) MAY MEAN A LITTLE DELAY IN ARRIVING AT THE FINAL CONCLU SION, BUT WE ARE DOING SO CONSCIOUSLY BECAUSE NOTHING WILL BE LOST IF ON FURT HER ENQUIRY, THE LEARNED CIT(APPEALS) SHALL ARRIVE AT THE FAIR AND J UST DECISION. BY REMANDING BACK THE ISSUE4 TO THE STAGE OF FIRST APP EAL WE ARE GIVING CERTAIN SPECIFIC DIRECTIONS AS DISCUSSED HEREINABOV E AND NOT MERELY SENDING THE APPEAL IN LOCK, STOCK AND BARREL WITHOU T GIVING SPECIFIC REASONS OR SPECIFIC DIRECTIONS. WE ARE EXERCISIN G THIS POWER BY TAKING SHELTER OF A DECISION OF HON'BLE KERALA HIGH COURT PRONOUNCED IN THE CASE OF A.N. TRANSPORTERS VS. CIT REPORTED AS 185 ITR 134 (KER.), WHEREIN IT WAS HELD BY THE HON'BLE COURT THAT THE TRIBUNAL HAS POWER TO REMAND THE CASE TO ASSESSING AUTHORITY IN CASE DUE TO PAUCITY OF MATERIAL THE TRIBUNAL HAS FOUND DIFFICULT TO ARRIVE AT A DEFINITE FINDING. THE FINDINGS IN THE PRESENT APPEAL ARE RATHER ONE SIDED FINDING OF LEARNED CIT(APPEALS) WHICH HAVE BEEN STRONGLY OBJEC TED FROM THE SIDE OF THE REVENUE; UNFORTUNATELY, THAT TOO THE FINDIN GS ARE NOT FOUND TO BE WELL SUPPORTED BY COGENT EVIDENCES. WE CAN ALSO TAKE GUIDANCE FROM AN ORDER OF HON'BLE APEX COURT IN THE CASE OF TIN B OX COMPANY VS. CIT REPORTED AS 249 216 (SC) THAT IF AN ASSESSMENT HAS BEEN MADE WITHOUT A ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 10 - REASONABLE OPPORTUNITY TO THE ASSESSEE, THEN THE RI GHT COURSE IS THAT THE ASSESSEE BE GIVEN A REASONABLE OPPORTUNITY BY SETTI NG ASIDE HIS CASE WITH A DIRECTION OF PROPER OPPORTUNITY OF HEARING. BEIN G ENLIGHTENED BY THESE DECISIONS, WE ARE OF THE CONSCIENTIOUS VIEW THAT IN THE PRESENT CASE NATURAL JUSTICE DEMANDS TO REFER BOTH THE GROUNDS O F THE REVENUE BACK TO THE STAGE OF LEARNED CIT(APPEALS) TO BE DECIDED DE NOVO AS PER THE OBSERVATIONS AND DIRECTIONS MADE HEREINABOVE. WE O RDER ACCORDINGLY. ASSESSEES CROSS OBJECTION NO.206/AHD/2006 (ARISING OUT OF ITA NO.1548/AHD/2006) 6. IN THE CROSS OBJECTION, THE ASSESSEE RAISED THE FOLLOWING GROUNDS:- 1.1. THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN CONFIRMING ADDITION OF RS.35,100/-. 1.2. THE LD. CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN DELETING THE ADDITION TO THE EXTENT OF RS.6,15,513/- AGAINST FULL AMOUNT OF RS.6,50,413/-. 2.1. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE EX -PARTE ASSTT.U/S.144 OF THE I.T. ACT, 1961. 2.2 THAT IN FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) OUGHT NOT HAVE CONFIRMED THE EX-PART ASSESSMENT. 3.1. THE LD. CIT(A) OUGHT HAVE DELETED THE ADDITION OF RS.10,61,400/- ON THE MERITS OF THE CASE. 3.2. THAT IN THE FACTS AND CIRCUMSTANCES OF CASE, T HE LD. CIT(A) OUGHT TO HAVE DELETED THE ADDITION OF RS.10,61,400/ - ON MERITS OF THE CASE. ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 11 - 6.1. THESE GROUNDS OF THE CROSS OBJECTOR ARE DIRECT LY LINKED ON FACTS WITH THE DISCUSSION MADE HEREINABOVE WHILE DECIDING REVENUES APPEAL. THE LEARNED CIT(APPEALS) HAS GIVEN A PART RELIEF BY HOLDING THE ADDITION TO THE EXTENT OF RS.35,100/- ONLY. THE CROSS OBJE CTOR, I.E. ASSESSEE WAS NOT SATISFIED WITH THE SAID VIEW OF LEARNED CIT(APP EALS), HENCE, MOVED THIS CROSS OBJECTION. BY FILING THIS CROSS OBJEC TION, THE ASSESSEE IS NOW ENTITLED TO PLACE BEFORE US CERTAIN FACTS IN RESPEC T OF THE NATURE OF BUSINESS AND THE COMPARABLE CASES TO DEMONSTRATE TH E CORRECT PERCENTAGE OF PROFIT IN THIS LINE OF BUSINESS. THEREFORE, B Y FILING THIS CROSS- OBJECTION AND ALSO BY ASKING PERMISSION TO PLACE O N RECORD CERTAIN NEW EVIDENCES, NOW THE ASSESSEE HIMSELF HAS OPENED THE GATE TO SEND THE MATTER BACK TO THE STAGE OF FIRST APPEAL. AS A RES ULT, THESE RELEVANT INFORMATIONS CAN NOW BE EXAMINED BY THE LEARNED C IT(APPEALS) SINCE WE HAVE RESTORED THE MATTER BACK TO HIM (SUPRA). T HEREFORE, GROUNDS RAISED BY THE ASSESSEE IN THE CROSS OBJECTION ARE ALSO TO BE ADJUDICATED UPON DE NOVO . 7. IN THE RESULT, REVENUES APPEAL AS WELL AS C ROSS OBJECTION FILED BY THE ASSESSEE BOTH ARE TREATED AS ALLOWED BUT FOR S TATISTICAL PURPOSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 16/ 07 /2010. SD/- SD/- ( N.S. SAINI ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 16 / 07 /2010 T.C. NAIR, SR. PS ITA NO.1548/AHD/2006 (BY REVENUE) AND CO NO.206/AHD/2006 (BY ASSESSEE) ITO VS. SHRI BHADRESH SHIVABHAI PATEL ASST.YEAR - 2000-01 - 12 - COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XXI, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD