Shri Akhilesh G.Dwivedi, Ahmedabad V. The Income tax Officer,Ward-9(4), Ahmedabad

ITA 1230/AHD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6933 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-11-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 26-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Assessee Lawyers: PF JAIN
• Keywords: Opportunity of being heard; Revised return

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.1230/AHD/2011 ( / ASSESSMENT YEAR : 2006-07) SHRI AKHILESH G.DWIVEDI P/29, DHWANI TENAMENTS ISANPUR, AHMEDABAD / VS. THE INCOME TAX OFFICER WARD-9(4), AHMEDABAD ' ./ ./ PAN/GIR NO. : AERPD 9446 E ( '% / APPELLANT ) .. ( &''% / RESPONDENT ) '%( / APPELLANT BY : SHRI P.F. JAIN, AR &''%)( / RESPONDENT BY : SHRI V.K. SINGH, SR.DR *) / DATE OF HEARING 28/11/2014 +,-.) / DATE OF PRONOUNCEMENT 19/12/2014 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XV, AHMEDABA D (CIT(A) IN SHORT) DATED 19/01/2011 PERTAINING TO ASSESSMEN T YEAR (AY) 2006-07. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF A PPEAL:- 1. THE LD.CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER OF LOSS OF RS.8,10,566 INCURRED IN THE BUSINESS OF M/S.PEE GEE DATA SOURCI NG WITHOUT PROPERLY APPRECIATING THE FACTS OF THE APPELLANT. 2. SHE HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADVERSE INFERENCE DRAWN BY THE ASSESSING OFFICER SIMPLY BECAUSE THE F ACT OF LOSS OF ITA NO.1230 /AH D/2011 SHRI AKHILESH G.DWIVEDI VS. ITO ASST.YEAR 2006-07 - 2 - ANOTHER BUSINESS WAS NOT MENTIONED IN TAX AUDIT REP ORT RELATING TO TRANSPORT BUSINESS. 3. SHE HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE CONTENTION OF ASSESSING OFFICER FOR IGNORING THE LOSS WITHOUT VER IFYING THE ACCOUNTS OF APPELLANT. 4. ON THE FACTS THE LOSS OUGHT TO HAVE BEEN ALLOWED AS THE DISALLOWANCE OF IT IS BASED ON SUSPICION. 5. THE APPELLANT CRAVES LEAVE TO ADD/TO ALTER AND/OR M ODIFY ANY GROUNDS OF APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE A SSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 31/12/2008, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE DISALLOWANCE OF RS.41,703/- OUT OF UNEXPLAINED UNSE CURED LOAN AND ALSO MADE ADHOC DISALLOWANCE OF 1/5 TH EXPENDITURE ON PETROL EXPENSES, MOBILE EXPENSES, MISCELLANEOUS EXPENSES, ETC. FURTHER, TH E AO DISALLOWED THE CLAIM OF LOSS OF RS.8,10,566/- FROM THE DATA SOURCI NG OF THE BUSINESS ACTIVITY. AGAINST THIS, THE ASSESSEE FILED AN APPE AL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS PARTLY ALLOWE D THE APPEAL. THE LD.CIT(A) DELETED THE ADDITION OF RS.14,703/- MADE ON ACCOUNT OF UNSECURED LOAN AND ALSO REDUCED THE ADHOC DISALLOWA NCE. AGAINST THIS, NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. THE ONLY EFFECTIVE GROUND RAISED IN THE ASSESSEE S APPEAL IS AGAINST IN CONFIRMING THE LOSS OF RS.8,10,566/- INCURRED IN THE BUSINESS OF M/S.PEE GEE DATA SOURCING. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW DID NOT APPRECIATE THE F ACTS IN RIGHT PERSPECTIVE. HE SUBMITTED THAT DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, THE ITA NO.1230 /AH D/2011 SHRI AKHILESH G.DWIVEDI VS. ITO ASST.YEAR 2006-07 - 3 - ASSESSEE PROPOSED TO REVISE ITS RETURN AS IN THE OR IGINAL RETURN LOSS IN RESPECT OF DATA SOURCING ENTRY WAS NOT CONSIDERED. THE LD.COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE AO HAS RECORDED THE F ACT OF REVISION OF THE RETURN IN ITS ASSESSMENT ORDER, WHEREIN THE AO HAS OBSERVED THAT THE ASSESSEE FILED THE REVISED RETURN ON 12/12/2007. H E SUBMITTED THAT THE ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY OF BE ING HEARD, THEREBY MISCARRIAGE OF JUSTICE IS CAUSED TO THE ASSESSEE. 4. ON THE CONTRARY, LD.SR.DR SUBMITTED THAT ALONG W ITH ORIGINAL RETURN AND AUDIT REPORT WERE FILED BY THE ASSESSEE, WHEREI N THERE IS NO MENTION OF THE SEPARATE BUSINESS ACTIVITY IS BEING CARRIED OUT BY THE ASSESSEE. THE ENTIRE CLAIM IS BASED ON AN AFTERTHOUGHT TO REDUCE THE TAX LIABILITY. HE SUBMITTED THAT THE LD.CIT(A) HAS GIVEN A FINDING TH AT THERE IS NO AUDIT REPORT ALONG WITH THE REVISED RETURN. THEREFORE, T HE AUTHORITIES BELOW WERE JUSTIFIED IN NOT ACTING UPON THE REVISED RETU RN. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE AO DISALLOWED THE CLAIM OF LOSS BY OBSERVING THAT THERE IS NO WHISPER OF ANY OTHER BUSINESS CARRIED OUT BY THE ASSESSEE AND SHOWN IN THE ORIGINAL RETURN AND THE AO DID NOT CONSIDER THE REVISED RETURN. THE LD.CIT(A) HAS GIVEN A FINDING ON FACT THAT THERE WA S NO AUDIT REPORT ALONG WITH THE REVISED RETURN. BEFORE US, DURING THE C OURSE OF HEARING, THE LD.COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TOWA RDS PAGE NO.16 OF THE PAPER-BOOK, WHEREIN THE AUTHORIZED REPRESENTATIVE O F THE ASSESSEE HAS POINTED OUT THAT THE ASSESSEE IS ALSO RUNNING A BUS INESS OF DATA SOURCING. ITA NO.1230 /AH D/2011 SHRI AKHILESH G.DWIVEDI VS. ITO ASST.YEAR 2006-07 - 4 - IN THE PAPER-BOOK, THE ASSESSEE HAS ENCLOSED COPY O F BALANCE-SHEET, PROFIT & LOSS ACCOUNT ALONG WITH LEDGER ACCOUNT O F PARTIES, EXTRACT OF CASH BOOK IN RESPECT OF PEE GEE DATA SOURCING. THE AUTHORISED REPRESENTATIVE HAS CERTIFIED THAT THESE DOCUMENTS W ERE PLACED BEFORE THE LOWER AUTHORITIES. WE FIND THAT NEITHER THE LD.AO NOR THE LD.CIT(A) HAS GIVEN ANY FINDING ON THESE DOCUMENTS. THEREFORE, THE ORDER OF THE LD.CIT(A) ON THIS ISSUE IS HEREBY SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE FILE OF AO FOR DECISION AFRESH. NEEDLESS TO SAY THAT THE AO WOULD PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. THUS, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTI CAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 19 TH DAY OF DECEMBER, 2014 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 19/ 12 /2014 2..,.../ T.C. NAIR, SR. PS ITA NO.1230 /AH D/2011 SHRI AKHILESH G.DWIVEDI VS. ITO ASST.YEAR 2006-07 - 5 - !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &''% / THE RESPONDENT. 3. 345 6 / CONCERNED CIT 4. 6 ( ) / THE CIT(A)-XV, AHMEDABAD 5. 78 & 45 , 45. , 3 / DR, ITAT, AHMEDABAD 6. 8:;<* / GUARD FILE. / BY ORDER, '7 & //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..11.12.14 (DICTATION-PAD 8- PA GES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 11.12.14 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BA CK TO THE SR.P.S./P.S. 19.12.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLE RK 19.12.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLER K ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER