The ITO, Ward-5(1), Baroda V. M/s. Saket Corporation, Baroda

ITA 1464/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60216 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-03-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 08-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ANIL R SHAH
• Keywords: Unexplained investment; Principle of natural justice; Corroborative evidences
• Section: 143(3); 80IB

Judgement Text

ITA NO.1 464/AHD/2009 WITH C.O. NO.109/AHD/200 9 ASSESSME NT YEAR 2006- 07 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AH MEDABAD (BEFORE SHRI G.C.GUPTA V. P. & SHRI ANIL CHATURVED I, A.M.) I.T.A. NO. 1464/AHD/2009 (ASSESSMENT YEAR: 2006- 07 ) INCOME TAX OFFICER, WARD 5(1), AAYAKAR BHAVAN, RACE COURSE, BARODA. (APPELLANT) VS. M/S. SAKET CORPORATION, A-25/116, KRISHNA INDL ESTATE, G.I.D.C., GORWA, BARODA. (RESPONDENT) C.O. N O.109/AHD/2009 (ARISING OUT OF I.T.A. NO. 1464/AHD/2009 ) (ASSESSMENT YEAR: 2006- 07 ) M/S. SAKET CORPORATION, A-25/116, KRISHNA INDL ESTATE, G.I.D.C., GORWA, BARODA. (APPELLANT) VS. INCOME TAX OFFICER, WARD 5(1), AAYAKAR BHAVAN, RACE COURSE, BARODA. (RESPONDENT) PAN: ABDFS 9216Q APPELLANT BY : SHRI SAMIR TEKRIWAL, SR. D.R . RESPONDENT BY : SHRI ANIL R. SHAH. ( )/ ORDER ITA NO.1 464/AHD/2009 WITH C.O. NO.109/AHD/200 9 ASSESSME NT YEAR 2006- 07 . 2 DATE OF HEARING : 20-3-2012 DATE OF PRONOUNCEMENT : 4-4-2012 PER: SHRI ANIL CHATURVEDI, A.M. THIS APPEAL IS FILED BY THE REVENUE, DIRECTED AGAI NST THE ORDER CIT (A)-V, BARODA DATED 5-2-2009 FOR THE ASSESSMENT YEAR 2006-07. 2. THE ONLY EFFECTIVE GROUND TAKEN BY THE REVENUE I S AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT (A) HAS ERRED IN DELETING THE ADDI TION OF RS.11,00,000/- MADE ON ACCOUNT OF UNEXPLAINED INVES TMENT U/S. 69 OF THE I.T. ACT IN MUTUAL FUND. (THE ISSUE IS N OT COVERED U/S. 80IB (10) AS WRONGLY STATED BY CIT (A) IN THE FIRST PARA OF HIS ORDER.). 3. THE GROUNDS RAISED BY THE ASSESSEE IN C.O. ARE A S UNDER:- 1. THE APPEAL FILED BY THE ITO AGAINST THE ORDER OF THE LD. CIT(A) REQUIRES TO BE DISMISSED SINCE THE ADDITION MADE IN THE ASSESSMENT ORDER WAS NOT U/S. 69 AND THE RELIEF GIVEN BY THE CIT (A) IS ALSO NOT U/S.69 AND THEREFORE, TH E GROUND OF APPEAL TAKEN BY THE ITO BEFORE THE HONBLE TRIBU NAL IS INFRUCTUOUS AND REQUIRES TO BE CANCELLED. 2. WITHOUT PREJUDICE YOUR APPELLANT SUBMI TS THAT THE LD. CIT (A) HAS RIGHTLY HELD THAT RS.11,00,000/- INVESTED I N MUTUAL FUNDS IS DULY SUPPORTED BY EVIDENCE AND IS NOT LIAB LE TO BE INCLUDED IN THE TOTAL INCOME OF THE RESPONDENT. ITA NO.1 464/AHD/2009 WITH C.O. NO.109/AHD/200 9 ASSESSME NT YEAR 2006- 07 . 3 3. THE LD. CIT (A) RIGHTLY HELD THAT THE ITO HAD NO T GIVEN SUFFICIENT AND PROPER OPPORTUNITY TO PRODUCE EVIDEN CE IN SUPPORT OF THE CONTENTION OF THE RESPONDENT AND THA T IT WAS FOR GOOD AND VALID REASONS THAT THE LD. CIT (A) KEEPING IN MIND THE FACTS OF THE CASE TOOK ON RECORD EVIDEN CE WHICH WAS ALSO OTHERWISE AVAILABLE ON THE FILE OF T HE ITO BASED ON WHICH HE RIGHTLY DELETED THE ADDITION OF RS.11,00,000/- MADE BY THE ITO. 4. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES REL IEF CLAIMED BY THE RESPONDENT BE ALLOWED AND THE APPEAL FILED B Y THE ITO BE DISMISSED. 4 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF DEVELOPING OF HOUSING RE SIDENTIAL UNITS. THE RETURN OF INCOME FOR THE YEAR ENDED 2006 I.E. F OR THE ASSESSMENT YEAR 2006-07 WAS FILED ON 22-12-2006 DECLARING TOTA L INCOME AT RS. NIL. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSME NT WAS FINALIZED ON 10-10-2008 BY MAKING AN ADDITION OF RS.11 LAKHS AS UNEXPLAINED INVESTMENT AND THE TOTAL INCOME WAS ACCORDINGLY DET ERMINED AT RS.11 LAKHS. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFI CER THE ASSESSEE FILED APPEAL BEFORE THE CIT (A). BEFORE THE CIT (A) THE ASSESSEE CONTENDED THAT THE A.O. DID NOT GIVE SUFFICIENT TIM E TO EXPLAIN THE MATTER AND THE ORDER U/S. 143(3) WAS PASSED WITHOUT GIVING PROPER OPPORTUNITY AND THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. CIT (A) IN HIS ORDER ACCEPTED THE FACT THAT ASSESSING O FFICER HAD VIOLATED THE PRINCIPLES OF NATURAL JUSTICE AND SHOULD HAVE C ONSIDERED THE SUBMISSION MADE BY THE ASSESSEE. HE WAS OF THE VIEW THAT THE ASSESSING OFFICER SHOULD HAVE GIVEN ONE MORE OPPORT UNITY TO EXPLAIN ITA NO.1 464/AHD/2009 WITH C.O. NO.109/AHD/200 9 ASSESSME NT YEAR 2006- 07 . 4 THE MATTER. CIT (A) FURTHER, ON THE BASIS OF SUBMIS SION AND DETAILS FILED BEFORE HIM CONCLUDED THAT THE INVESTMENT OF R S.11 LAKHS MADE IN MUTUAL FUND WAS FULLY EXPLAINED AND THEREFORE DELET ED THE ADDITION. THE REVENUE IS NOW IN APPEAL BEFORE US AND THE ASSE SSEE HAS ALSO FILED CROSS OBJECTION. 5. BEFORE US THE LD. DR POINTED OUT THAT THE CIT (A ) HAS NOT DISCUSSED THE ISSUE ON MERITS BEFORE GRANTING RELI EF. HE FURTHER URGED THAT THE SUPPORTING EVIDENCE RELIED UPON BY CIT (A) SHOULD HAVE BEEN MADE AVAILABLE TO A.O. FOR EXAMINATION. HE THEREFOR E, URGED THAT THE MATTER BE SET ASIDE TO THE FILE OF A.O. FOR VERIFIC ATION OF ALL THE FACTS AND NECESSARY DIRECTIONS. THE A.R. DID NOT SERIOUSL Y OBJECTED TO THE PLEA OF LD. D.R. 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE DETA ILS FILED. IT IS AN ADMITTED FACT THAT THE EVIDENCE FURNISHED BY ASSESS EE BEFORE CIT (A) HAS NOT BEEN VERIFIED BY A.O. WE ARE OF THE VIEW, T HAT WHEN THE A.O. DID NOT EXAMINE THE RELEVANT EVIDENCE, THEN IN THE INTEREST OF JUSTICE AND FAIR PLAY IT IS NECESSARY THAT VERIFICATION AND EXAMINATION OF THE EVIDENCE IS DONE AT THE LEVEL OF A.O. THEREFORE, WE ARE OF THE VIEW THAT THE ISSUE BE SET ASIDE TO THE FILE OF A.O. FOR VER IFICATION AND EXAMINATION OF THE RELEVANT EVIDENCE TO BE PRODUCED BY THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE AS PER LAW. THE A.O . SHALL ALLOW ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA NO.1 464/AHD/2009 WITH C.O. NO.109/AHD/200 9 ASSESSME NT YEAR 2006- 07 . 5 7. SINCE THE APPEAL OF THE REVENUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER THE CROSS OBJECTION FILED BY THE ASSESSEE DO NOT REQUIRE ADJUDICATION. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES AND CROSS OBJECTION OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN OPEN COURT ON 4 - 4 - 2012. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) V, BARODA. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. ITA NO.1 464/AHD/2009 WITH C.O. NO.109/AHD/200 9 ASSESSME NT YEAR 2006- 07 . 6 1.DATE OF DICTATION 20 - 3 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 30 / 3 / 2012 MEMBER .OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 4 - 4 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 4 - 4 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 4 - 4 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 4 - 4 -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..