The ITO,Vapi Ward-3, Vapi V. Shri Rakesh D. Tiwari, Vapi

ITA 1209/AHD/2011

• Counselvise Citation: 120920514 RSA 2011
• Duration Of Justice: 4 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 14-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 25-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI RAJPAL YADAV, JUDICIAL MEMBER ITA NO. 1209/AHD/2011 & CO NO.192/AHD/2011 / ASSESSMENT YEAR: 2007-08 ITO WARD-3, VAPI VS SHRI RAKESH D. TIWARI PLOT NO.6140, NEAR PEPSI GODOWN, 4 TH PHASE GIDC, VAPI PAN : ACXPT 1887 B / // / (APPELLANT) / // / (RESPONDENT/CROSS- OBJECTOR) REVENUE BY : SHRI B.L. YADAV, SR. DR. ASSESSEE(S) BY : SHRI RAJESH M. UPADHYAY, AR !' # $% !' # $% !' # $% !' # $% / DATE OF HEARING : 14/05/2015 &' # $% / // / DATE OF PRONOUNCEMENT: 22/05/2015 () () () ()/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THIS IS AN APPEAL FILED BY THE REVENUE AND THE CROS S-OBJECTION FILED BY THE ASSESSEE, BOTH AGAINST THE ORDER OF THE COMM ISSIONER OF INCOME TAX (APPEALS), VALSAD DATED 28.12.2010, PERTAINING TO ASSESSMENT YEAR 2007-08. 2. IN THIS APPEAL BY THE REVENUE, FOLLOWING GROUNDS WERE RAISED:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.3,5 9,788/-, OUT OF TOTAL ADDITION OF RS.3,70,846/- MADE U/S 37. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.28, 46,923/- OUT OF TOTAL ADDITION OF RS.3,585,625/- MADE ON ACCOUNT OF SUNDR Y CREDITORS U/S 68. ITA NO. 1209/AHD/2011 & CO 192/AHD/2011 ITO VS. SHRI RAKESH D. TIWARI AY 2007-08 2 3. IN THE CROSS-OBJECTIONS, THE ASSESSEE RAISED THE FOLLOWING GROUNDS:- 1. LR. CIT(APPLS) HAS ERRED IN LAW AND ON FACTS TO SUS TAIN ADDITION OF RS.11,058/- OUT OF BUSINESS EXPENSE CLAIMED. 2. LR. CIT(APPLS) HAS ERRED IN LAW AND ON FACTS TO SUS TAIN ADDITION OF RS7,38,702/- UNDER THE HEAD SUNDRY CREDITORS FROM WHOM SCRAP WAS PURCHASED DURING THE YEAR UNDER APPEAL. WHEN PURCHA SES OF SCRAP BEING ACCEPTED, CREDITORS FROM WHOM PURCHASES ARE MADE AR E ALSO REQUIRED TO BE ACCEPTED. 3. LR. CIT(APPLS) HAS ERRED IN LAW AND ON FACTS TO ADD AN AMOUNT OF RS.4,45,000/- CREDITED TO CAPITAL A/C BECAUSE IT IS DIFFERENCE IN CLOSING CAPITAL A/C IN EARLIER PRECEDING YEAR AND OPENING B ALANCE SHOWN IN THE YEAR UNDER ASSESSMENT. 4. CROSS APPEAL IS DELAYED BY 114 DAYS BECAUSE APPELLA NT WAS AT HIS NATIVE PLACE VILLAGE-AMBHAT, TALUKA-MAU, DISTT.-CHITRAKU T TO LOOK AFTER HIS FATHER WHO WAS HOSPITALIZED. 4. AT THE TIME OF HEARING BEFORE US, IT WAS SUBMITT ED BY THE LD. DEPARTMENTAL REPRESENTATIVE THAT ON BOTH THE ISSUES THE CIT(A) ALLOWED SUBSTANTIAL RELIEF TO THE ASSESSEE. THE ASSESSEE HA D NOT FURNISHED ANY EVIDENCE BEFORE THE ASSESSING OFFICER. THE ASSESSEE FURNISHED VARIOUS FRESH EVIDENCES BEFORE THE CIT(A) WHO CONSIDERED THE SAME AND ALLOWED THE RELIEF TO THE ASSESSEE IN VIOLATION OF PROVISION OF RULE 4 6A. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, FAIRLY ADMITTED THAT THE FRESH EVIDENCES WERE FILED BEFORE THE CIT( A); HE, HOWEVER, STATED THAT IN THE GROUNDS OF APPEAL RAISED BEFORE THE ITA T, THE REVENUE HAS NOT CHALLENGED THE ADMISSION OF ADDITIONAL EVIDENCES. M OREOVER, BEFORE THE ITA NO. 1209/AHD/2011 & CO 192/AHD/2011 ITO VS. SHRI RAKESH D. TIWARI AY 2007-08 3 CIT(A), THE ASSESSING OFFICER APPEARED AND HE ALSO NEVER OBJECTED TO THE CONSIDERATION OF ADDITIONAL EVIDENCES BY THE CIT(A) . HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE CIT(A) MAY BE SUSTA INED; IN ALTERNATIVE, HE SUGGESTED THAT IF THE BENCH IS OF THE OPINION THAT THE CIT(A) WRONGLY CONSIDERED THE ADDITIONAL EVIDENCES WITHOUT STRICTL Y FOLLOWING THE PROVISIONS OF RULE 46A, THEN THE MATTER MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER SO THAT THE ASSESSEE MAY PRODUCE ALL THE EVIDENCES BEFORE THE ASSESSING OFFICER AND HE MAY RE-ADJUDICATE BOTH THE ISSUES RAISED IN THIS APPEAL BY THE REVENUE. HE ALSO SUBMITTED THAT IF T HE ISSUES RAISED IN THE REVENUES APPEAL ARE SET ASIDE, THEN THE ISSUE RAIS ED IN THE ASSESSEES CROSS- OBJECTION SHOULD ALSO BE SET ASIDE BECAUSE OUT OF T HREE ISSUES RAISED IN THE CROSS-OBJECTION, TWO ARE COMMON TO THE REVENUES AP PEAL, BECAUSE ON BOTH THE ISSUES PART RELIEF IS ALLOWED BY THE CIT(A). IN RESPECT OF ONE MORE ISSUE RAISED BY THE ASSESSEE IN THE CROSS-OBJECTION, SOME RECONCILIATION IS REQUIRED WITH THE EARLIER YEAR WHICH THE ASSESSEE WILL BE AB LE TO SUBMIT IF THE MATTER IS SENT BACK TO THE FILE OF THE ASSESSING OFFICER. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NO OBJECTION IN SENDING THE MATT ER BACK TO THE FILE OF THE ASSESSING OFFICER. 6. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDE S AND FACTS OF THE CASE, WE ARE OF THE OPINION THAT IT WOULD BE IN THE INTEREST OF JUSTICE IF THE ISSUES RAISED BY THE REVENUE IN ITS APPEAL AND IN T HE CROSS-OBJECTION BY THE ASSESSEE ARE SET ASIDE AND RESTORED TO THE FILE OF THE ASSESSING OFFICER. WE ORDER ACCORDINGLY AND DIRECT THE ASSESSING OFFICER TO ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALS O DIRECT THE ASSESSEE TO PRODUCE ALL THE EVIDENCES AS WELL AS EXPLANATION BE FORE THE ASSESSING OFFICER IN RESPECT OF ALL THE ISSUES MENTIONED IN T HE REVENUES APPEAL AS WELL ITA NO. 1209/AHD/2011 & CO 192/AHD/2011 ITO VS. SHRI RAKESH D. TIWARI AY 2007-08 4 AS HIS CROSS OBJECTION. THEREAFTER, THE ASSESSING O FFICER IS DIRECTED TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE REVENUES APPEAL AS WELL AS A SSESSEES CROSS- OBJECTION, BOTH ARE DEEMED TO BE ALLOWED FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 22 ND MAY, 2015 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 22/05/2015 BIJU T., PS () # $* +(*$ () # $* +(*$ () # $* +(*$ () # $* +(*$/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ,, $ !- / CONCERNED CIT 4. !- ( ) / THE CIT(A) 5. *01 $ , , / DR, ITAT, AHMEDABAD 6. 1 3' / GUARD FILE . ()! ()! ()! ()! / BY ORDER, TRUE COPY 4 44 4/ // / ,5 ,5 ,5 ,5 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD