Gangadhar Narsingdas Agrawal(HUF), V. ACIT Central Circle Panaji Goa, Panaji

ITA 155/PAN/2008

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93551 (ITAT-PANAJI)
• Duration Of Justice: 6 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-07-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 18-11-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHA DESAI LD
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI, HON'BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NOS. 153 TO 155/PNJ/2008 : (A.YS 2004 - 05 TO 2006 - 07) GANGADHAR NARSINGDAS AGRAWAL (HUF), ANAND BHAVAN, OLD STATION ROAD, MARGAO, GOA. PAN : AABHG4804R ( APPELLANT) VS. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, PANAJI, GOA (RESPONDENT) ITA NO. 156/PNJ/2008 : (A.Y 2006 - 07) ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, PANAJI, GOA (APPELLANT) VS. GANGADHAR NARSINGDAS AGRAWAL (HUF), ANAND BHAVAN, OLD STATION ROAD, MARGAO, GOA. PAN : AABHG4804R ( RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SMT. ASHA DESAI, LD. DR DATE OF HEARING : 08/07/2015 DATE OF PRONOUNCEMENT : 08/07/2015 O R D E R PER GEORGE MATHAN : 1. ITA NO. 153/PNJ/2008 IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - VI, BANGALORE IN ITA NO. 41/ACIT/CC PANAJI/CIT(A) - VI/BLR/2008 - 09 DT. 1.9.2008 FOR THE A.Y 2004 - 05. ITA NO. 154/PNJ/2008 IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - VI, BANGALORE IN ITA NO. 42/ACIT/CC PANAJI/CIT(A) - VI/BLR/2008 - 09 DT. 1.9.2008 FOR THE A.Y 2005 - 06. ITA NOS. 155/PNJ/2008 AND 156/PNJ/2008 A RE APPEALS FILED BY THE 2 ITA NOS. 153 TO 156/PNJ/2008 (A.YS : 2004 - 05 TO 2006 - 07) ASSESSEE AND REVENUE RESPECTIVELY AGAINST THE ORDER OF CIT(A) - VI, BANGALORE IN ITA NO. 43/ACIT/CC PANAJI/CIT(A) - VI/BLR/2008 - 09 DT. 1.9.2008 FOR THE A.Y 2006 - 07. NONE REPRESENTED ON BEHALF OF THE ASSESSEE AND SMT. ASHA DESAI, LD. ST ANDING COUNSEL APPEARED ON BEHALF OF THE REVENUE. 2. IT WAS SUBMITTED BY THE LD. STANDING COUNSEL THAT ORIGINALLY THESE FOUR APPEALS HAD BEEN DISPOSED OFF BY THE TRIBUNAL AND THE SAME HAD BEEN THE SUBJECT MATTER OF AN APPEAL BEFORE THE HON'BLE HIGH COURT OF BOMBAY AT GOA. IT WAS THE SUBMISSION THAT THE HON'BLE HIGH COURT HAD RESTORED ALL THE FOUR APPEALS TO THE FILE OF THE TRIBUNAL FOR RE - ADJUDICATING THE SAME ON MERITS AFTER ASCERTAINING ALL THE FACTS AND FIGURES. IT WAS THE SUBMISSION BY THE LD. STANDING COUNSEL THAT THERE WAS A SEARCH AND SEIZURE IN THE PREMISES OF THE ASSESSEE ON 18.10.2005. CONSEQUENT TO THE SEARCH, SEIZED MATERIALS AND OTHER RELEVANT PAPERS HAD BEEN CONSIDERED WHILE MAKING THE ASSESSM ENT. IT WAS THE SUBMISSION THAT THAT ONE OF THE MAIN CONTENTIONS IN THE ASSESSMENT WAS IN RESPECT OF THE CLOSING STOCK OF LUMPY ORES AS PER THE BOOKS MAINTAINED BY THE ASSESSEE AT THE MINE AND AT THE HEAD OFFICE. IT WAS THE SUBMISSION THAT THE CLOSING ST OCK OF LUMPY ORES AS PER THE BOOKS MAINTAINED AT THE MINE SHOWED HIGHER QUANTITY THAN THAT RECORDED IN THE BOOKS OF THE ASSESSEE AT THE HEAD OFFICE. AT THIS POINT, THE LD. STANDING COUNSEL WAS REQUESTED TO SHOW THE DETAILS OF THE SAID DIFFERENCES AS PER E VIDENCES OBTAINED IN THE COURSE OF THE SEARCH. FURTHER, THE LD. STANDING COUNSEL WAS ALSO REQUESTED TO SHOW US THE COPY OF THE 132(5) ORDERS. THE LD. STANDING COUNSEL EXPRESSED HER INABILITY TO PRODUCE THE SAID EVIDENCES IMMEDIATELY. THIS BEING THE FACT S, AS IT IS ALSO NOTICED THAT THESE ARE VERY OLD APPEALS AND AS IT IS NOTICED THAT THE ENTIRE FACTS HAVE NOT BEEN PLACED BEFORE US, WE ARE OF THE VIEW THAT THE ISSUES IN THESE APPEALS ARE LIABLE TO BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR RE - ADJUDICAT ION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS CASE AND AFTER GETTING THE 3 ITA NOS. 153 TO 156/PNJ/2008 (A.YS : 2004 - 05 TO 2006 - 07) NECESSARY REMAND REPORT FROM THE AO AND VERIFICATION OF THE SEARCH RECORDS. WE ARE COMPELLED TO DO THIS BECAUSE THE FACTS AND FIGURES HAVE NOT BEEN PRODUCE D BY EITHER SIDE BEFORE US. ADMITTEDLY, THE ASSESSEE HAS FILED PAPER BOOK CONTAINING 127 PAGES IN ONE PAPER BOOK AND 51 PAGES IN A SUPPLEMENTARY PAPER BOOK. HOWEVER, THESE ARE ONLY THE BALANCE - SHEETS AND TRADING AND PROFIT & LOSS ACCOUNT. THE CORE DOCUM ENTS BEING THE SEIZED MATERIAL WHICH ARE BEING RELIED UPON BY THE AO AND THE LD. CIT(A) ARE NOT BEFORE US. 3. ONE OF THE GROUNDS RAISED BY THE ASSESSEE IS ALSO THAT THE LD. CIT(A) HAS NOT ISSUED ANY SHOW CAUSE NOTICE TO THE ASSESSEE IN RESPECT OF THE EN HANCEMENT MADE BY HIM. A PERUSAL OF THE ORDER OF THE LD. CIT(A) ALSO DOES NOT SHOW ANY CORRESPONDENCE OR SHOW CAUSE NOTICE IN RESPECT OF THE ENHANCEMENT OF THE QUANTITY AND THE VALUE OF THE CLOSING STOCK. IN THESE CIRCUMSTANCES, TAKING INTO CONSIDERATION THAT THE FACTS HAVE NOT BEEN ASSIMILATED PROPERLY, THE ORDERS OF THE LD. CIT(A) IN RESPECT OF THE THREE ASSESSMENT YEARS RELEVANT TO THE FOUR APPEALS ARE SET ASIDE AND ALL THE ISSUES IN THE APPEALS ARE RESTORED TO THE FILE OF THE LD. CIT(A) FOR RE - ADJUDIC ATION AFTER ASCERTAINING ALL THE FACTS AND AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS CASE. 4. IN THE RESULT, THE APPEALS OF THE ASSESSEE AND THE APPEAL OF THE REVENUE STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONO UNCED IN THE OPEN COURT ON 08/07/2015. S D / - (N.S. SAINI) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 0 8 /07/ 201 5 *SSL* 4 ITA NOS. 153 TO 156/PNJ/2008 (A.YS : 2004 - 05 TO 2006 - 07) COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 5 ITA NOS. 153 TO 156/PNJ/2008 (A.YS : 2004 - 05 TO 2006 - 07) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 08/07/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 08/07/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 0 9 /07/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 0 9 /07/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 0 9 /07/2015 SR.PS 6. DATE OF PRONOUNCEMENT 08/07/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 0 9 /07/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER