M/s. Savvy Homes Co.(Earlier Known as Desai & Co.), Ahmedabad V. The ACIT.,Circe-2(4), Ahmedabad

CO 72/AHD/2010

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 9018 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 28-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 26-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S KALYAN
• Assessee Lawyers: S N SOPARKAR
• Keywords: Business income; Additional evidence; Assessment record
• Section: 45(2); 153A; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SRI D.K TYAGI, JUDICIAL MEMBER AND SHRI T. R. MEENA, ACCOUNTANT ME MBER ACIT, CENTRAL CIRCLE- 2(4), AHMEDABAD (APPELLANT) VS M/S SAVVY HOMES CO. (EARLIER KNOWN AS DESAI & CO) SANSKAR APARTMENT, OPP. KARNAVATI CLUB, VEJALPUR, AHMEDABAD PAN: AABFD4205B (RESPONDENT) M/S SAVVY HOMES CO. (EARLIER KNOWN AS DESAI & CO) SANSKAR APARTMENT, OPP. KARNAVATI CLUB, VEJALPUR, AHMEDABAD PAN: AABFD4205B (CROSS OBJECTOR) VS ACIT, CENTRAL CIRCLE- 2(4), AHMEDABAD (RESPONDENT) REVENUE BY: SRI D.S. KALYAN, CIT-D.R. ASSESSEE BY: SRI S.N. SOPARKAR, A.R. DATE OF HEARING : 28-11-2013 DATE OF PRONOUNCEMENT : 29-11-20 13 / ORDER IT(SS)A NO. 30 & 31/AHD/2010 ASSESSMENT YEAR 2006-07 & 2007-08 CO NO. 72 & 73/AHD/20 (IN IT(SS)A NO. 30 & 31/AHD/2010) ASSESSMENT YEAR 2006-07 & 2007-08 I.T.(SS)A NO.30 & 31 /AHD/2010 & CO NO. 72 & 73/AH D/2010 A.Y. PAGE NO ACIT VS. M/S SAVVY HOMES CO. 2 PER : D.K. TYAGI, JUDICIAL MEMBER:- THESE REVENUES APPEALS AND COS OF ASSESSEE FOR A SSESSMENT YEAR 2006-07 & 2007-08 HAVE BEEN FILED AGAINST THE CONS OLIDATED ORDER OF LD. CIT(A)-I DATED 12-11-2009. 2. IN BOTH THE APPEALS, REVENUE HAS TAKEN IDENTICAL GROUNDS WHICH READ AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS AND C IRCUMSTANCES OF THE CASE IN DIRECTING ASSESSING OFFICER TO DELETE T HE WORKING OF CAPITAL GAIN AND TAX ENTIRE BUSINESS INCOME AND NOT TO TREA T ANY PART THERE OF AS CAPITAL GAIN. 3. IN BOTH THE COS ARE ALSO SIMILAR GROUNDS WHICH READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) SHOULD HAVE UPHELD THE ASSESSEE'S CONTENTION THAT I T WAS NOT AT ALL A FIT CASE FOR INVOKING THE PROVISIONS OF SECTION 153A FO R ANY OF THE YEARS INVOLVED. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE RESPONDENT'S CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN NOT A DJUDICATING UPON THE RESPONDENT'S ALTERNATIVE PLEA BEFORE HIM REGARD ING VALUE TO BE ADOPTED FOR THE PURPOSE OF SECTION 45(2) OF THE I.T . ACT, ON THE GROUND THAT HE HAD ORDERED FOR THE DELETION OF THE ADDITIO N ITSELF AND DIRECTED TO DELETE THE WORKING OF CAPITAL GAIN. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN NOT ACCEPTING THE ASSESSEE'S PLEA THAT IT WAS NOT AT ALL A FIT CASE FOR LEVY OF INTEREST U/S. 234A, 234B AND 2 34C OF THE I.T. ACT. 4. DURING THE APPELLATE PROCEEDINGS BEFORE US, ASSE SSEE FILED THREE COMPILATIONS. IN REPLY TO THE QUERY OF THE BENCH, IT WAS STATED THAT ALL THE DOCUMENTS FILED IN COMPILATIONS WERE BEFORE AO AS W ELL AS LD. CIT(A). TO I.T.(SS)A NO.30 & 31 /AHD/2010 & CO NO. 72 & 73/AH D/2010 A.Y. PAGE NO ACIT VS. M/S SAVVY HOMES CO. 3 VERIFY THE SAME, ASSESSMENT RECORDS WERE CALLED FOR AND IT WAS FOUND THAT CERTAIN DOCUMENTS CLAIMED TO HAVE BEEN FILED BEFORE AO WERE NOT PART OF THE ASSESSMENT RECORD. LEARNED COUNSEL OF THE ASSESSEE WAS FAIR ENOUGH TO CONCEDE THAT THE PAPERS WHICH ARE NOT PART OF ASSES SMENT RECORDS MAY BE TREATED AS ADDITIONAL EVIDENCE BEFORE LD. CIT(A) AN D THEREFORE MATTER MAY BE SENT BACK TO THE FILE OF LD. CIT(A) FOR FRESH AD JUDICATION AFTER OBTAINING REMAND REPORT FROM THE AO ON THIS ADDITIONAL EVIDEN CE. LD. DR DID NOT OBJECT TO THIS SUBMISSION OF THE ASSESSEES COUNSEL . THEREFORE, THE MATTER IS HEREBY RESTORED BACK TO THE FILE OF LD. CIT(A) ACCO RDINGLY. 5. IN THE RESULT, REVENUES APPEALS AS WELL AS 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/- (T.R. MEENA) ( D.K. TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 29/11/2013 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,