M/s. Apollo Computer Education, Surat V. The Income tax Officer,Ward-5(1), Surat

ITA 140/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89431 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 18-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C MISHRA
• Assessee Lawyers: M K PATEL
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI N.S. SAINI ACCOUNTANT MEMBER AND SHRI S.S. GODARA JUDICIAL MEMBER ITA NO .140/ A HD/ 201 2 A. Y .2008 - 09 M/S. APOLLO COMPUTER EDUCATION, 8, MADHUBAN SOCIETY, OPP. LIC QTRS, TIMALIAWAD, NANPURA, SURAT. PAN: AALFA 6748E VS ITO, WARD - 5(1), SURAT. (APPELLANT) (RESPONDENT) REVENUE BY : S HRI D.C. MISHRA , SR. D.R. , ASSESSEE(S) BY : SHRI M.K. PATEL, A.R. / DATE OF HEARING : 8 / 0 5 /201 5 / DATE OF PRONOUNCEMENT: 14/ 0 5 /201 5 / O R D E R PER SHRI S.S. GODARA , JUDICIAL MEMBER TH IS ASSESSEE S APPEAL FOR A.Y. 200 8 - 0 9 , ARISE S FROM AN EX - PARTE OR DER OF THE CIT(A) - I SURAT DATED 28.12.2011 PASSED I N CASE NO .CAS - I/169/2011 - 12 AFFIRMING THE ASSESSING OFFICER S ACTION ADDING A SUM OF RS.7,60,709/ - ON ACCOUNT OF ALLEGED SUPPRESSION OF INCOME, RESTRICTING DISALLOWANCE OF SALARY PAYMENTS @ 25% OF THE TOTA L EXPENSES COMING TO THE RS.1,28,500/ - TO 10% DUE TO LACK OF VERIFICATION AND SECTION 68 ADDITION OF RS.4,27,452/ - IN CAS E OF SUNDRY CREDITS, IN PROCEEDINGS U/S. 143 ( 3 ) OF THE INCOME TAX ACT IN SHORT THE ACT . ITA NO. 140 /AHD/201 2 M/S. APOLLO COMPUTER EDUCATION . FOR A.Y. 200 8 - 09 - 2 - THE ASSESSEE REITERATES ITS PLEADINGS AND ST RONGLY ARGUES THAT THE CIT(A) OUGHT NOT TO HAVE AFFIRMED THE ASSESSING OFFICER S ACTION ABOVESAID MAKING DISALLOWANCE/ADDITIONS IN QUESTION. AND THAT TOO BY AN EX - PARTE ORDER WITHOUT SERVING EVEN A COPY OF THE LOWER APPELLATE HEARING. IT PRAYS FOR ACCEPTAN CE OF ITS APPEAL. THE REVENUE SUPPORTS THE CIT(A) ORDERS. 2. THE ASSESSEE - FIRM PROVIDES STAFF FOR COMPUTER TEACHING. IT FILED ITS RETURN ON 30.3.2008 ADMITTING INCOME OF RS.3,107/ - . THE ASSESSING OFFICER TOOK UP SCRUTINY. HE INTER ALIA NOTICED THE ASSESSE E TO HAVE SHOWN INCOME FROM NEW MODEL SCHOOL, L.H. BOGRA/SISHU VIHAR SCHOOL PER MONTH OF RS.44,577/ - . HE TOOK COGNIZANCE OF THE FACT THAT IT HAD NOT OFFERED ANY INCOME FOR REMAINING EIGHT MONTHS OF THE YEAR. HE FOUND AN OPINION THAT THE ASSESSEE HAD SHOWN LESS RECEIPTS OF RS.7,60,709/ - . HE PUT UP THE ASSESSEE ON NOTICE FOR THIS ALLEGED SUPPRESSION. THEREAFTER HE FRAMED A REGULAR ASSESSMENT ADDING THE AFORESAID AMOUNT IN ASSESSEE S TAXABLE INCOME. 3. THE ASSESSEE PREFERRED AN APPEAL. THE CIT(A) OBSERVES IN HIS ORDER THAT NOTICES WERE ISSUED ON 21.9.2011, 17.10.2011 AND 28.12.2011 RESPECTIVELY UPON THE APPELLANT. HOWEVER, THERE IS NO MODE / PROOF OF SERVICE FORTHCOMING. THE REVENUE FAILS TO REBUT THIS ASPECT IN THE COURSE OF HEARING. IN THESE CIRCUMSTANCES, W E FEEL THAT ITA NO. 140 /AHD/201 2 M/S. APOLLO COMPUTER EDUCATION . FOR A.Y. 200 8 - 09 - 3 - LARGER INTEREST OF JUSTICE WOULD BE MET IN CASE THE ISSUE IN HAND IS REMITTED BACK TO THE ASSESSING OFFICER FOR AFRESH ADJUDICATION. COMING TO THE OTHER TWO ISSUES, WE FIND THAT THE CIT(A) HAS RESTRICTED SALARY DISALLOWANCE FROM THAT MADE @ 2 5% TO 10% OF THE TOTAL EXPENSES AS WELL AS AFFIRMED THE IMPUGNED SECTION 68 ADDITION. THE LOWER APPELLATE ORDER DOES NOT TAKE INTO ACCOUNT ANY EVIDENCE ALREADY AVAILABLE ON RECORD. THEREFORE, THESE TWO GROUNDS ARE ALSO REMANDED BACK FOR AFRESH DECISION. TH E ASSESSEE IS DIRECTED TO CO - OPERATE AND PRODUCE ALL NECESSARY DETAILS ON RECORD. THE ASSESSEE S ALL THREE GROUNDS ARE ACCEPTED FOR STATISTICAL PURPOSES. 4. THE ASSESSEE S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON THIS DAY, THE 14 TH MAY , 201 5 AT AHMEDABAD . SD/ - SD/ - ( N.S. SAINI) ( S.S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 14 / 0 5 / 20 1 5 PRABHAT KR. KESARWANI , SR. P . S . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD