Shri Samir S.Sheth, Baroda V. The ACIT.,Cent.Circle-2, Baroda

ITA 1309/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60314 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-03-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 23-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARTAR SINGH
• Assessee Lawyers: S N SOPARKAR
• Keywords: Principle of natural justice; Validity of assessment
• Section: 153A

Judgement Text

ITA NO.1 309 & 1311/AHD/2009 ASSESSME NT YEAR 2001- 02 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T.A. NO.1309 /AHD/2009 (ASSESSMENT YEAR: 2001 - 02) SHRI SAMIR S. SHETH, C/O. PLASTICHEMIX INDUSTRIES, 6 TH FLOOR, KIRTI TOWERS, TILAK ROAD, SAYAJI GUNJ, BARODA. (APPELLANT) VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRALCIRCLE-2, AAYAKAR BHAVAN, NEAR RACE COURSE CIRCLE, BARODA. (RESPONDENT) PAN: AFOPS8295Q I.T.A. NO.1311/AHD/2009 (ASSESSMENT YEAR: 2001 - 02) SHRI MAYUR S. SHETH, C/O. PLASTICHEMIX INDUSTRIES, 6 TH FLOOR, KIRTI TOWERS, TILAK ROAD, SAYAJI GUNJ, BARODA. (APPELLANT) VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRALCIRCLE-2, AAYAKAR BHAVAN, NEAR RACE COURSE CIRCLE, BARODA. (RESPONDENT) PAN: AFOPS8296P APPELLANT BY : SHRI S.N.SOPARKAR, SR. ADVOC ATE RESPONDENT BY : SHRI KARTAR SINGH, CIT (D.R.) ITA NO.1 309 & 1311/AHD/2009 ASSESSME NT YEAR 2001- 02 . 2 ( )/ ORDER DATE OF HEARING : 15-3-2012 DATE OF PRONOUNCEMENT : 4-5-2-2012 PER: SHRI ANIL CHATURVEDI,A.M. THESE TWO APPEALS ARE DIRECTED AGAINST THE ORDER O F CIT (A)-IV, BARODA DATED 11-12-2008 FOR THE ASSESSMENT YEAR 200 1-02. 2. THE GROUNDS OF APPEAL RAISED IN THESE TWO APPEAL S ARE AS UNDER:- GROUNDS OF APPEAL IN ITA NO.1309/AHD/2009. 1. LD. CIT (A) HAS ERRED IN LAW IN CONFIRMING THE ACT OF A.O. IN FRAMING ASSESSMENT BY INVOKING THE PROVISIONS OF SE CTION 153A OF THE ACT WHICH IS BAD IN LAW AND WITHOUT JURISDIC TION. LD. CIT (A). LD. CIT (A) OUGHT TO HAVE QUASHED THE SAME AS A PROVISION OF SEC. 153A OF THE ACT IS NOT AT ALL APPLICABLE TO THE FACTS OF THE PRESENT CASE. 2. LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NO T APPRECIATING THAT THE ASSESSMENT U/S. 153A OF THE ACT IS RESTRIC TED TO THE MATERIALS AND EVIDENCES FOUND DURING THE COURSE OF THE SEARCH ITA NO.1 309 & 1311/AHD/2009 ASSESSME NT YEAR 2001- 02 . 3 AND NOT BEYOND. ITEMS IN THE NATURE OF REGULAR ADDI TIONS CAN NOT BE MADE PART OF S. 153A OF THE ACT. 3. LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ACTION OF ASSESSING OFFICER IN DISALLOWING INTEREST EXPENDITURE AMOUNTING TO RS.51,51,565/- U/S. 57(III) AS ALSO U/ S. 36(1)(III) OF THE ACT. 4. BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN NOT PROPERLY APPRECIATING AND CONSIDERING VARIOUS S UBMISSIONS, EVIDENCES AND SUPPORTING PLACED ON RECORD DURING TH E COURSE OF THE ASSESSMENT PROCEEDINGS AND NOT PROPERLY APPRECI ATING VARIOUS FACTS AND LAW IN ITS PROPER PERSPECTIVE AND FURTHER ERRED IN PASSING ORDERS IN GROSS VIOLATION OF THE PRINCIP LES OF NATURAL JUSTICE. 5. LD. CIT (A) HAS ERRED IN LAW IN CONFIRMING THE L EVY OF INTEREST U/S. 234A/B/C OF THE ACT. 6. LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN UPH OLDING THE ACTION OF A.O. IN INITIATING PENALTY UNDER SECTION 271(1)(C ) OF THE ACT WITHOUT RECORDING MANDATORY SATISFACTION AS CON TEMPLATED UNDER THE ACT. ITA NO.1 309 & 1311/AHD/2009 ASSESSME NT YEAR 2001- 02 . 4 7. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, EDIT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE TIME OF OR BEFORE THE HEARING OF THE APPEAL. GROUNDS OF APPEAL IN ITA NO.1311/AHD/2009. 1. LD. CIT (A) HAS ERRED IN LAW IN CONFIRMING THE ACT OF A.O. IN FRAMING ASSESSMENT BY INVOKING THE PROVISIONS OF SE CTION 153A OF THE ACT WHICH IS BAD IN LAW AND WITHOUT JURISDIC TION. LD. CIT (A). LD. CIT (A) OUGHT TO HAVE QUASHED THE SAME AS PROVISIONS OF SEC. 153A OF THE ACT IS NOT AT ALL APPLICABLE TO TH E FACTS OF THE PRESENT CASE. 2. LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN NO T APPRECIATING THAT THE ASSESSMENT U/S. 153A OF THE ACT IS RESTRIC TED TO THE MATERIALS AND EVIDENCES FOUND DURING THE COURSE OF THE SEARCH AND NOT BEYOND. ITEMS IN THE NATURE OF REGULAR ADDI TIONS CAN NOT BE MADE PART OF S. 153A OF THE ACT. 3. LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ACTION OF ASSESSING OFFICER IN DISALLOWING INTEREST EXPENDITURE AMOUNTING TO RS.39,26,168/- U/S. 57(III) AS ALSO U/ S. 36(1)(III) OF THE ACT. 4. BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN NOT PROPERLY APPRECIATING AND CONSIDERING VARIOUS S UBMISSIONS, ITA NO.1 309 & 1311/AHD/2009 ASSESSME NT YEAR 2001- 02 . 5 EVIDENCES AND SUPPORTING PLACED ON RECORD DURING TH E COURSE OF THE ASSESSMENT PROCEEDINGS AND NOT PROPERLY APPRECI ATING VARIOUS FACTS AND LAW IN ITS PROPER PERSPECTIVE AND FURTHER ERRED IN PASSING ORDERS IN GROSS VIOLATION OF THE PRINCIP LES OF NATURAL JUSTICE. 5. LD. CIT (A) HAS ERRED IN LAW IN CONFIRMING THE L EVY OF INTEREST U/S. 234A/B/C OF THE ACT. 6. LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN UPH OLDING THE ACTION OF A.O. IN INITIATING PENALTY UNDER SECTION 271(1)(C ) OF THE ACT WITHOUT RECORDING MANDATORY SATISFACTION AS CON TEMPLATED UNDER THE ACT. 7. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, EDIT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE TIME OF OR BEFORE THE HEARING OF THE APPEAL. 3. SINCE THE FACTS AND ISSUES INVOLVED ARE IDENTICA L FOR BOTH THE ASSESSEE AND APPEALS ARE HEARD TOGETHER, THESE ARE BEING DISPOSED BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIE NCE. 4. THE FIRST GROUND OF THE ASSESSEE IN BOTH THE APP EALS IS CHALLENGING THE VALIDITY OF ASSESSMENT FRAMED BY TH E A.O. U/S. 153A OF THE I.T. ACT. AS PER THE LD. A.R. THE ASSESSEE HAD NOT TAKEN THIS GROUND EARLIER EITHER BEFORE THE A.O. OR BEFORE THE CIT (A). THE ITA NO.1 309 & 1311/AHD/2009 ASSESSME NT YEAR 2001- 02 . 6 ASSESSEE HAS RAISED THIS GROUND FOR THE FIRST TIME BEFORE US. SINCE THE ISSUE HAS NOT BEEN CONSIDERED BY CIT (A) WHILE PASS ING THE IMPUGNED ORDER, IN THE INTEREST OF JUSTICE AND FAIR PLAY, TH E SAME IS RESTORED TO THE FILE OF CIT (A) FOR ADJUDICATION AS PER LAW. 5. IN VIEW OF THIS DIRECTION, REMAINING GROUNDS OF APPEAL ARE ALSO NOT ADJUDICATED BY US AND ARE RESTORED TO THE FILE OF CIT (A) TO DECIDE IT AFRESH IN ACCORDANCE WITH LAW. THE CIT (A) WILL PROVIDE DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. 6. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 4 - 5 - 2012. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. ITA NO.1 309 & 1311/AHD/2009 ASSESSME NT YEAR 2001- 02 . 7 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-IV, BARODA. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 15 - 3 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 23 / 4 / 2012 MEMBER .OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 3 - 5 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 4 - 5 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 4 - 5 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7 - 5 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..