THE ACIT, Central Circle-1(3), Ahmedabad V. WINNERS BUSINESS LINK PVT.LTD., Ahmedabad

ITA 1288/AHD/2006

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9333 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-08-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 19-05-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV AGARWAL
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI T.K.SHARMA, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER DATE OF HEARING : 24/08/09 DRAFTED ON: 2 4/08/09 ITA NO.1288/AHD/2006 ASSESSMENT YEAR : 2003-04 THE ACIT CENTRAL CIRCLE-1(3) AHMEDABAD VS. WINNER BUSINESS LINK P.LTD. JIVAN KAMAL BLDG ABOVE CANARA BANK NR.NAVRANGPURA POLICE STATION AHMEDABAD PAN/GIR NO. : AAACW 1747 P (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI RAJEEV AGARWAL, DR RESPONDENT BY: -NONE- O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER O F THE LD.CIT(APPEALS)-I, AHMEDABAD, DATED 24/03/2006 PAS SED FOR ASSESSMENT YEAR 2003-04 BY TAKING FOLLOWING GROUNDS :- 1. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN NEGATIN G THE FINDINGS OF THE A.O. AS REGARDS REJECTION OF BOOKS OF ACCOUNT OF THE ASSESSEE BY APPLYING THE PROVISIONS OF SECTION 145(3) AND THEREBY DELETING THE ADDITION OF RS.3,53,84,797/- M ADE TO THE ASSESSEES DECLARED INCOME FROM MEMBERSHIP FEES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A. O. ITA NO.1288/AHD /2006 ACIT VS. WINNER BUSINESS LINK P.LTD. ASST.YEAR - 2003-04 - 2 - 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTEN T. 2. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSING OFFICER MADE ADDITION OF RS.3,53,84,797/- AS INCOME OF THE ASSESSEE AFTER REJECTING THE SYSTEM OF ACCOUNTING ADOPTED BY THE ASSESSEE. ON APPEAL, THE LEARNED CIT(APPEALS) ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER:- THE MAIN ADDITION OF RS.3,53,84,797/- IS ON ACCOUN T OF REJECTION OF THE METHOD OF ACCOUNTING FOLLOWED BY THE APPELLANT. THE AO HAS ATTEMPTED TO DISTINGUISH THE CASE FROM THE EARLIER APPELLATE ORDER FOR A.Y. 1999-2000 OF THE CIT(A) ON THE GROUND OF FUTUR E EXPENSES BEING THE DIFFERENTIATING FACTOR. THE- AO HAS ALSO ATTEMP TED TO DIFFERENTIATE THE APPELLANT'S CASE FROM THE SIMILAR CASE OF UNIQU E MERCANTILE SERVICES (P)LTD. ON THE OTHER HAND, THE REPRESENTATIVE OF THE APPELL ANT SHRI R.G.SHAH, FILED A COPY OF THE HON'BLE ITAT, AHMEDABAD BENCH ORDER DATED 23/12/05 IN ITA (SS)NO. 206/AHD/2004, ITA(SS)NO. 30 /AHD/2003,ITA NO. 2197/AHD/2004, AND ITA NO. 2197/AHD/2004 AS WEL L AS ITA NO.3221,3396 AND 3397/AHD/2003 FOR BLOCK PERIODS AN D A.Y. 2001- 02,A.Y. 1998-99,1999-2000 AND 2000-01 IN THE APPELL ANT'S OWN CASE, TO PROVE THAT ALL ASPECTS OF THE CASE HAD BEE N DISCUSSED BY THE HON'BLE ITAT WHILE DISMISSING THE DEPARTMENTAL APPE ALS AND ALLOWING THE APPELLANT'S APPEALS. A PERUSAL OF THE ABOVE TRIBUNAL ORDER IN THE APPELL ANT'S OWN CASE FOR EARLIER YEARS DOES SUPPORT THE APPELLANT'S CONTENTI ON. IN PARAS 28 AND 29 THE HON'BLE ITAT HAS RECORDED THE FACT TH AT THE DR TRIED TO DISTINGUISH THE CASE FROM OTHER CASES. AFTER DISCUS SING THE ISSUE, IN PARA 30 AND 31 THE HON'BLE TRIBUNAL DID NOT ACCEPT THE DR'S SUBMISSIONS AND ALLOWED THE APPEALS OF THE APPELLAN T FOR ALL OF THE EARLIER YEARS AND DISMISSED THE REVENUE'S APPEALS. WHILE DOING SO, ITA NO.1288/AHD /2006 ACIT VS. WINNER BUSINESS LINK P.LTD. ASST.YEAR - 2003-04 - 3 - THE HON'BLE TRIBUNAL REFERRED TO THE JURISDICTIONAL GUJARAT HIGH COURT DECISION IN THE CASE OF SAYAJI IRON & ENGG.CO . VS. CIT IN 253 ITR 749 TO HOLD THAT ON SIMILAR FACTS, THE EARLIER DECISION OF THE TRIBUNAL IS NECESSARILY TO BE FOLLOWED. THE HON'BLE TRIBUNAL ACCORDINGLY DELETED SIMILAR SUCH ADDITIONS AND DIRE CTED THAT METHOD OF ACCOUNTING OF THE APPELLANT BE ACCEPTED. IN VIEW OF THE CLEAR ORDERS DATED 23/12/2005 OF THE HON'BLE ITAT BENCH 'D' AHMEDABAD IN THE APPELLANT'S OWN CASE, GR OUNDS OF APPEAL NO. 1,2,3 & 4 ARE ALLOWED IN SO FAR AS THE M AIN ADDITION OF RS.3,53,84,797/- IS CONCERNED SINCE IT IS RELATED T O THE METHOD OF ACCOUNTING BEING FOLLOWED BY THE APPELLANT AND IS C OVERED BY THE ABOVE ITAT ORDERS OF THE AHMEDABAD TRIBUNAL. 3. BEFORE US, THE ASSESSEE HAS NOT APPEARED IN SPIT E OF SERVICE OF NOTICE THROUGH DEPARTMENTAL REPRESENTATIVE AS EVIDENCED BY THE LETTER DATED 19/08/2009 ADDRESSED TO THE DY.REGISTRAR ITAT, AHME DABAD BY THE DY.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(3), AHMEDABAD PLACED ON RECORD. 4. WE FIND THAT THE DEPARTMENTAL REPRESENTATIVE CO ULD NOT PRODUCE BEFORE US THE COPY OF THE ORDERS OF THE TRIBUNAL WHICH W ERE ALLEGEDLY FOLLOWED BY THE LEARNED CIT(APPEALS). THE LEARNED CIT(APPEALS ) HAS ALSO NOT QUOTED WHAT WAS FACTS IN THE CASE BEFORE THE TRIBUNAL AND, HENCE, THE FACT OF THAT CASE WAS IDENTICAL TO THE FACTS OF THE CASE UNDER PRESEN T APPEAL. IN ABSENCE OF THE RELEVANT DETAILS, WE ARE UNABLE TO PROPERLY APPRECI ATE THE ORDER OF THE LEARNED CIT(APPEALS). IN OUR CONSIDERED OPINION, IT SHAL L BE IN THE INTEREST OF JUSTICE, TO SET ASIDE THE ORDER OF THE LEARNED CIT(APPEALS) AND REMAND THE ISSUE BACK ITA NO.1288/AHD /2006 ACIT VS. WINNER BUSINESS LINK P.LTD. ASST.YEAR - 2003-04 - 4 - TO THE FILE OF LEARNED CIT(APPEALS) FOR PASSING A SPEAKING ORDER AFTER POINTING OUT THE FACTS OF THE CASE WHICH WAS BEFORE THE TRIB UNAL WHOSE DECISION WAS FOLLOWED BY HIM IN THE YEAR UNDER APPEAL. NEEDLE SS TO STATE THAT PROPER OPPORTUNITY OF HEARING SHALL BE ALLOWED TO BOTH THE PARTIES BEFORE DECIDING THE ISSUE AFRESH. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 31/08/2009. SD/- SD/- ( T.K. SHARMA ) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNT ANT MEMBER AHMEDABAD; DATED 31/08/2009 T.C. NAIR COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT 3. THE CIT CONCERNED. 4. THE LD. C IT(APPEALS)-I, AHMEDABAD 5. THE DR, AHMEDABAD BENCH. 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD