M/s. Hotel Sai Amar International, Mumbai V. The Income tax Officer,Ward-4, Daman

ITA 133/AHD/2013

• Counselvise Citation: 13320514 RSA 2013
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-10-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 14-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: S N SOPARKAR
• Keywords: Revision of order; Depreciation
• Section: 143(3); 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SRI D.K TYAGI, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEM BER M/S HOTEL SAI AMAR INTERNATIONAL, 201/A, HARDWARD, GREENWOOD COMPLEX, GHOD BUNDER ROAD, THANE (WEST)- 400607 PAN: AADFH4191G (APPELLANT) VS ITO WARD 4, DAMAN, VAPI (RESPONDENT) REVENUE BY: SRI O.P. BATHEJA, SR.D.R. ASSESSEE BY: SRI S.N. SOPARKAR, A.R. DATE OF HEARING : 27-11-2013 DATE OF PRONOUNCEMENT : 20-12-20 13 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A), VALSAD DATED 24-10-2012. ITA NO. 133/AHD/2013 ASSESSMENT YEAR 2004-05 I.T.A NO. 133/AHD/2013 A.Y. 2004-05 PAGE N O M/S HOTEL SAI AMAR INTERNATIONAL VS. ITO 2 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPE AL:- 1 ON THE FACT AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT (APPEALS) ERRED IN DISMISSING THE APPEA LS ON THE GROUND OF DELAY 2 THE LEARNED CIT (APPEALS) FAILS TO APPRECIATE T HE FACT THAT A) THE ORDER PASSED U/S 144 FOR THE ASSESSMENT YEA R IS BAD IN LAW AS IT IS BEING PASSED WITHOUT ISSUING PROPER NOTICE U/ S 142 (1) OR 143 (2) OF THE INCOME TAX ACT 1961. B) THE ASSESSING OFFICER HAVE NOT SERVED THE NOTIC ES PROPERLY FOR THE ASSESSMENT YEAR 2005-06 ALSO C) THE ASSESSING OFFICER HAS ASSESSED THE ORDER U/ S 144 WITHOUT HAVING JURISDICTION OVER THE ASSESSEE AS THE REGIST ERED OFFICE OF THE APPELLANT FIRM IS SITUATED AT THANE, MAHARASHTRA WH ERE THE APPELLANT IS BEING ASSESSED. 3 THE LEARNED CIT (APPEALS) FAILS TO CONSIDER THE FACT THAT THE ASSESSMENT IS COMPLETED ON THE BASES OF THE FORGED RETURNS WHICH THE APPELLANT, HAS NEVER FILED. THE APPELLANT HAD FILED COMPLAINT BEFORE THE LOCAL POLICE IN DAMAN. THE APPELLANT IS PERUSIN G THE MATTER WITH THE POLICE STATION TO GET THE FACT FINDING REPORT F ROM THE POLICE STATION AND BECAUSE OF THE DELAY IN GETTING SUCH REPORT THE APPELLANT COULD NOT FILE THE APPEAL IN TIME. 4 THE LEARNED CIT (APPEALS) FAILS TO CONSIDERED T HE FACT THAT THE APPELLANT HAS NEVER RECEIVED THE ORIGINAL ASSESSMEN T ORDER AND DEMAND NOTICE. THE APPELLANT GOT ALL SUCH DOCUMENT S UNDER RTI ACT WHICH IS CONSIDERED AS INFORMATION ONLY AND NOT THE SERVICE OF THE ASSESSMENT ORDER. 5 THE LEARNED CIT (APPEALS) ALSO FAILS TO CONSIDE RER THE FACT THE ASSESSING OFFICER HAS ERRED IN PASSING THE ASSESSME NT ON THE FOLLOWING GROUNDS A) THE ASSESSING OFFICER HAS INVOKED THE PROVISION OF SECTION 68 WHICH PROVIDED FOR ADDITION OF THE UNEXPLAINED TRAN SACTION DURING THE YEAR. HOWEVER THE ASSESSING OFFICER KNOWING THE FAC T THAT RS. 47,90,000 IS THE OPENING BALANCE IN THE PARTNERS CAPITAL ACCOUNTS, HAS ADDED THE SAME U/S 68 WHICH IS UNWARRANTED AND UNJUSTIFIABLE B) SIMILARLY THE ASSESSING OFFICER HAS MADE ADDITIO N OF 20% OF THE TOTAL EXPENSES WHICH IS ALSO UNWARRANTED AND UNJUST IFIABLE I.T.A NO. 133/AHD/2013 A.Y. 2004-05 PAGE N O M/S HOTEL SAI AMAR INTERNATIONAL VS. ITO 3 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS RUN NING A HOTEL AT NANI DAMAN. RETURN OF INCOME DECLARING TOTAL INCOME AT RS. (-)556 WAS FILED ON 14-11-2005. THIS RETURN WAS PROCESSED U/S. 143(1) OF THE ACT WITHOUT ANY CHANGE TO THE INCOME RETURNED. THEREAFTER CASE WAS SELECTED FOR SCRUTINY ASSESSMENT U/S. 143(3) OF THE ACT. WHILE COMPLETIN G ASSESSMENT U/S. 144 OF THE ACT, THE AO MADE ADDITION ON ACCOUNT OF EXPENSE S, CAPITAL INTRODUCTION AND DEPRECIATION AMOUNTING TO RS. 3,07,282/-, 47,90 ,000/- AND RS. 3,55,000/- RESPECTIVELY AND DETERMINED THE TOTAL INCOME AT RS. 54,51,726/-. AGAINST THIS ORDER OF AO, APPEAL WAS FILED BEFORE LD. CIT(A ) WHICH WAS LATE BY MORE THAN 46 MONTHS. LD. CIT(A) DID NOT CONDONE TH IS DELAY IN FILING APPEAL BEFORE HIM AND THEREBY DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT DECIDING THE OTHER GROUNDS ON MERITS. 4. AGGRIEVED BY THIS ORDER OF LD. CIT(A) NOW THE AS SESSEE IS IN APPEAL BEFORE US AND HAS TAKEN THE ABOVE GROUNDS. 4. DURING THE APPELLATE PROCEEDINGS BEFORE US IT WA S BROUGHT TO OUR NOTICE THAT PAN NO. AADFH4191G WAS ALLOTTED TO THE ASSESSEE ACCORDING TO WHICH JURISDICTION OF THE ASSESSEE LIES WITH ITO WARD-1(4) THANE. IT WAS FURTHER BROUGHT TO OUR NOTICE THAT ASSESSEE FILED I NCOME TAX RETURN ALONG WITH BALANCE SHEET AND PROFIT AND LOSS ACCOUNT FOR ASSES SMENT YEAR 2004-05, 2005-06 & 2006-07 WITH OFFICE JOINT/ADDITIONAL CIT RANGE I THANE. IN SUPPORT OF THIS SUBMISSION RELIANCE WAS PLACED ON C OPY OF PAN AND ITS ALLOTMENT LETTER AND COPIES OF RETURN ALONG WITH BA LANCE SHEET AND PROFIT AND LOSS ACCOUNT FOR ASSESSMENT YEAR 2004-05, 2005-06 & 2006-07 FILED WITH THE OFFICE OF JOINT/ADDITIONAL CIT RANGE-1 THANE AND AR E AVAILABLE FROM PAGE 1- I.T.A NO. 133/AHD/2013 A.Y. 2004-05 PAGE N O M/S HOTEL SAI AMAR INTERNATIONAL VS. ITO 4 13 OF THE PAPER BOOK FILED BY ASSESSEE BEFORE US. IT WAS FURTHER SUBMITTED THAT ASSESSMENT HAS BEEN COMPLETED BY THE AO ON THE FORGED RETURN FILED BY SOMEBODY AGAINST WHICH COMPLAINT WAS FILED BY THE A SSESSEE BEFORE THE LOCAL POLICE. DURING THE APPELLATE PROCEEDINGS IT ALSO C AME TO THE NOTICE OF THE BENCH THAT IN THIS CASE ASSESSEE ALSO FILED PETITIO N U/S. 264 OF THE ACT BEFORE THE CIT VALSAD WHICH WAS SUBSEQUENTLY WITHDRAWN. I N THE LIGHT OF THESE PECULIAR FACTS LD. DR WAS ASKED TO OBTAIN A REPORT FROM THE AO ABOUT THE FACTUAL POSITION OF THIS CASE. IN REPLY THE AO HAS MENTIONED AS UNDER:- 2. ON VERIFICATION OF THE OFFICE RECORDS, IT IS SEEN THAT IN THE CASE OF M/S. HOTEL SAI AMAR INTERNATIONAL, DAMAN FOR A.Y , 2004-05, ASSESSES HAS FILED APPLICATION U/S 264 BEFORE THE H ON'BLE CIT, VALSAD AND IT IS ALSO GATHERED FROM THE OFFICE OF THE CIT, VALSAD THAT THE ASSESSEE HAD APPLIED FOR WITHDRAWAL OF ITS APPLICAT ION REGARDING U/S 264 DATED 16.03.2010. THE COPY OF THE SAME HAS BEEN OBTAINED FROM THE OFFICE OF THE HON'BLE CIT, VALSAD (COPY ENCLOSE D). THEREFORE, THE ORDER U/S 264 OF THE ACT HAS NOT BEEN PASSED BY THE HON'BLE CIT, VALSAD. 3. ON VERIFICATION OF THE THIS OFFICE RECORD IT IS SEEN THAT THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME AFTER A .Y. 2005-06. NO ANY ACTION HAS BEEN TAKEN BY THE DEPARTMENT DUE TO PAN JURISDICTION OF THE ASSESSEE IS LYING WITH THE ITO WARD-1(4), TH ANE. 4. IN THIS CASE, THE ASSESSEE HAS DOING BUSINE SS ACTIVITY OF HOTEL IN DAMAN NAME AND STYLE AS M/S HOTEL SAL AMAR INTERNAT IONAL. THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR A.Y. 2004-05 AND A.Y. 2005-06 WITH THIS OFFICE ON 14.11.2005. AT THAT TIM E PAN JURISDICTION NOT AVAILABLE HENCE MANUAL RETURN OF INCOME FOR BOT H THE YEARS WERE FILED WITH THIS WARD. NOW, ON VERIFICATION OF THE P AN JURISDICTION IT IS SEEN THAT THE PAN JURISDICTION OF THE ASSESSEE IS P ERTAIN WITH THE ITO, THANE. THEREFORE, AS PER PAN THE CURRENT JURISDICTI ON REST WITH THE I.T.O. WARD-1(4), THANE . IN VIEW OF THE ABOVE WE ARE OF THE CONSIDERED OPINI ON THAT IN THIS CASE CONSOLIDATION OF ASSESSEES RECORD IS REQUIRED AND AFTER CONSOLIDATION OF I.T.A NO. 133/AHD/2013 A.Y. 2004-05 PAGE N O M/S HOTEL SAI AMAR INTERNATIONAL VS. ITO 5 RECORD ASSESSMENT OF THE ASSESSEE BE COMPLETED AT T HE PLACE WHERE ASSESSEES JURISDICTION RESTS. FOR THIS PURPOSE THE MATTER IS RESTORED BACK TO THE FILE OF AO FOR NECESSARY ACTION. 5. IN THE RESULT, ASSESSEES APPEAL IS 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 20/12/2013 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/ , / ,