M/s. Shree Sai Corporation, Surat V. The ACIT, Circle-5, Surat

CO 66/AHD/2007

• Counselvise Citation: [2010] 122 COUNSELVISE.COM (IT) 4416 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 26-02-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-02-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 09-04-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S PANWAR
• Assessee Lawyers: T R MODY
• Keywords: Deemed to accrue or arise in india; Reassessment proceedings
• Section: 147; 148; 144; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/ SHRI BHAVNESH SAINI, JM AND A. N.PAHUJA, AM) ITA NO.427/AHD/2007 A. Y.: 1998-99 THE A. C. I.T., CIRCLE-5, ROOM NO. 217, AAYAKAR BHAVAN, MAJURA GATE, SURAT VS M/S. SHREE SAI CORPORATION, 8/167, SANGHADIAWAD, GOPIPURA, SURAT PA NO. AAOPS 7769J (APPELLANT) (RESPONDENT) C. O. NO. 66/AHD/2007 (IN ITA NO.427/AHD/2007) M/S. SHREE SAI CORPORATION, 8/167, SANGHADIAWAD, GOPIPURA, SURAT PA NO. AAOPS 7769J VS THE A. C. I.T., CIRCLE-5, ROOM NO. 217, AAYAKAR BHAVAN, MAJURA GATE, SURAT (APPLICANT) (RESPONDENT) DEPARTMENT BY SHRI S. S. PANWAR, DR ASSESSEE BY SHRI T. R. MODY, AR O R D E R PER BHAVNESH SAINI: THE DEPARTMENTAL APPEAL AS WELL AS THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINS T THE ORDER OF THE LEARNED CIT(A)-III, SURAT DATED 30-11-2006 FOR ASSE SSMENT YEAR 1998-99. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND C ONSIDERED THE MATERIAL AVAILABLE ON RECORD. ITA NO.427/AHD/2007:BY DEPARTMENT IN ITA NO.427/AHD/2007 AND C.O.NO.66/AHD/2007 M/S. SHREE SAI CORPORATION 2 3. IN THE DEPARTMENTAL APPEAL, THE REVENUE CHALLENG ED THE DELETION OF ADDITION OF RS.37,00,000/- MADE U/S 68 OF THE IT AC T. 4. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ORDE R U/S 144 READ WITH SECTION 147 OF THE IT ACT WAS PASSED ON 28-03-2002 DETERMINING TOTAL INCOME AT RS.6,11,00,000/-. THE LEARNED CIT(A)-IV, SURAT DECIDED THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 10-10-2003 AND AFTER GIVING APPEAL EFFECT TOTAL INCOME WAS DETERMINED AT RS.1,1 1,59,146/-. THE PRESENT ISSUE IS ARISING OUT OF THE ASSESSMENT ORDE R DATED 14-03-2006 PASSED U/S 144/147 OF THE IT ACT. THE AO MADE THE A DDITION OF DEEMED INCOME U/S 68 OF THE IT ACT IN A SUM OF RS.37,00,00 0/-. IT WAS CONTENDED BEFORE THE LEARNED CIT(A) THAT THIS ADDIT ION PERTAINS TO SHRI ASHWINBHAI SHAH AT RS.10,00,000/- AND SHRI KIRITBHA I SHAH AT RS.27,00,000/-. IT WAS EXPLAINED THAT THE AO IN THE ORIGINAL ASSESSMENT ORDER DATED 28-03-2002 ALREADY ADDED THE ABOVE AMOU NT AND THE SAME AMOUNT EXISTED IN THE LIST OF SIXTEEN PERSONS WHICH WERE DISCUSSED BY THE AO AND THE LEARNED CIT(A) IN THE ORIGINAL PROCEEDIN GS. IT WAS ALSO SUBMITTED THAT SINCE THE ABOVE AMOUNT WAS NOT FOUND CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, THEREFORE, ADDITI ONS WERE DELETED BY THE LEARNED CIT(A). THE LEARNED CIT(A) ACCEPTED THE CON TENTION OF THE ASSESSEE THAT THE SAME ISSUE IS CONSIDERED IN THE O RIGINAL PROCEEDINGS ON WHICH THE LEARNED CIT(A) VIDE ORDER DATED 10-10-200 3 ALLOWED RELIEF IN FAVOUR OF THE ASSESSEE. THE LEARNED CIT(A), THEREFO RE, NOTED THAT IN SINCE THE ABOVE AMOUNT HAS ALREADY BEEN CONSIDERED IN THE ORIGINAL ASSESSMENT ORDER AND LATER ON BY LEARNED CIT(A), TH EREFORE, THERE IS NO JUSTIFICATION TO ADD THE SAME AMOUNT AGAIN IN THE F RESH ASSESSMENT VIDE IMPUGNED ASSESSMENT ORDER DATED 14-03-2006. ADDITIO N WAS ACCORDINGLY DELETED. 5. THE LEARNED DR RELIED UPON THE ORDER OF THE AO. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSION IN ITA NO.427/AHD/2007 AND C.O.NO.66/AHD/2007 M/S. SHREE SAI CORPORATION 3 MADE BEFORE THE AUTHORITIES BELOW AND REFERRED TO T HE EARLIER ORDER PASSED IN THE ORIGINAL PROCEEDINGS. COPIES OF THE S AME ARE FILED IN THE PAPER BOOK AND ALSO SUBMITTED THAT IN THE IMPUGNED PROCEEDINGS AGAINST THE ORIGINAL ASSESSMENT ORDER, THE TRIBUNAL HAS ISS UED DIRECTION TO REFRAME THE ASSESSMENT ON WHICH THE ASSESSEE IS AGA IN IN APPEAL BEFORE THE TRIBUNAL IN ITA NO.2754/AHD/2009 ON WHICH THE A SSESSEE HAS SOUGHT ADJOURNMENT BECAUSE IT WAS ON DIFFERENT MATT ER. HE HAS SUBMITTED THAT ONCE THE ADDITION OF RS.37,00,000/- IS ALREADY CONSIDERED IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND ADDITION IS DELETED BY THE LEARNED CIT(A), THEREFORE, SAME ADDITION CANNOT BE MADE IN THE SUBSEQUENT PROCEEDINGS U/S 147 OF THE ACT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. IT IS ADMITTED FA CT THAT IN THE ORIGINAL ASSESSMENT PROCEEDINGS THE AO MADE ADDITION OF RS.3 7,00,000/- IN RESPECT OF THE ABOVE CREDITORS APART FROM OTHER CRE DITORS. THE SAME MATTER IN ISSUE REMAIN THE SUBJECT MATTER BEFORE TH E LEARNED CIT(A) AND THE LEARNED CIT(A) DECIDED THE APPEAL VIDE ORDER DA TED 10-10-2003. THEREFORE, THE SAME ISSUE CANNOT BE CONSIDERED IN T HE SUBSEQUENT PROCEEDINGS, OTHERWISE IT WOULD AMOUNT TO DOUBLE TA XATION. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT( A). WE CONFIRM HIS FINDINGS AND DISMISS THE APPEAL OF THE REVENUE. 7. AS A RESULT, THE DEPARTMENTAL APPEAL IS DISMISSE D. C. O. NO.66/AHD/2007:BY ASSESSEE (IN ITA NO.427/AHD/2007) 8. THE CROSS OBJECTION IS MAINLY FILED IN SUPPORT O F THE ORDER OF THE LEARNED CIT(A). THE ASSESSEE ALSO RAISED GROUND AGA INST INITIATION OF REASSESSMENT PROCEEDINGS U/S 148 OF THE IT ACT WHIC H ISSUE WAS NOT PRESSED BEFORE THE LEARNED CIT(A). THE LEARNED COUN SEL FOR THE ASSESSEE SUBMITTED THAT SINCE IT IS A LEGAL ISSUE, THE ASSES SEE RAISED IT BEFORE THE IN ITA NO.427/AHD/2007 AND C.O.NO.66/AHD/2007 M/S. SHREE SAI CORPORATION 4 TRIBUNAL. HOWEVER, HE WAS NOT ABLE TO EXPLAIN AS TO WHAT IS THE GRIEVANCE OF THE ASSESSEE IN RAISING SUCH A GROUND NOW BEFORE THE TRIBUNAL WHICH WAS NOT PRESSED BEFORE THE LEARNED CIT(A). THE APPE AL BEFORE THE TRIBUNAL LIES IF THE ASSESSEE IS AGGRIEVED BY THE ORDER OF T HE LEARNED CIT(A). THE ASSESSEE HAS NO GRIEVANCE AGAINST THE ORDER OF THE LEARNED CIT(A) BECAUSE NO FINDING IS GIVEN BY THE LEARNED CIT(A) O N THIS ISSUE AS IT WAS NOT PRESSED BY THE ASSESSEE BEFORE HIM. WE, THEREFO RE, DO NOT FIND ANY JUSTIFICATION TO CONSIDER THE ISSUE ON INITIATION O F PROCEEDINGS U/S 148 OF THE IT ACT IN THE MATTER. AS A RESULT, THE CROSS OB JECTION OF THE ASSESSEE IS NOT MAINTAINABLE AND IS ACCORDINGLY DISMISSED. 9. AS A RESULT, CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. 10. IN VIEW OF THE ABOVE DISCUSSIONS, THE DEPARTMEN TAL APPEAL AND THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26-02-2010 SD/- SD/- (A. N. PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 26-02-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD