The ITO, Ward-5(1), Surat V. Shri Gautamkumar Jain, Surat

ITA 1973/AHD/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67621 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 20-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 08-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J P JANGID
• Keywords: Gift
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.1973/AHD/2010 A.YS: 2006-07 ITO WARD 5(1), SURAT. VS SHRI GAUTAM KUMAR JAIN, PROP: OF M/S. VIMAL SILK MILLS, S-I-32, HARI OM TEXTILE MARKET, RING ROAD, SURAT. PAN: ACBPJ 6238Q (APPELLANT) (RESPONDENT) REVENUE BY : SHRI J.P. JANGID, SR.D.R. ASSESSEE(S) BY : NONE. / // / DATE OF HEARING : 20/08/2013 / DATE OF PRONOUNCEMENT: 23/08/2013 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE ARISING FRO M AN ORDER OF LEARNED CIT(A)-IV, SURAT, DATED 18.3.2010. THE G ROUNDS RAISED BY THE REVENUE ARE REPRODUCED BELOW: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A)-IV, SURAT HAS ERRED IN DELETING THE ADDITION OF RS.78,720/- MADE BY THE AO ON ACCOUNT OF ESTIMATION OF GP. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A)-IV, SURAT HAS ERRED IN ALLOWING THE DISALLOW ANCE OF RS.45,330/- BEING 25% MADE BY THE AO OUT OF TOTAL E XPENSES. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A)-IV, SURAT HAS ERRED IN DELETING THE ADDITION OF RS.5,49,228/- MADE BY THE AO ON ACCOUNT OF BOGUS LIABILITY SHOWN AS ADVANCE FROM THE CUSTOMERS. ITA NO.1973/AHD/2010 ITO VS. SHRI GAUTAM KUMAR JAIN A. Y. 2006-07 - 2 - 2. AT THE OUTSET, WE HAVE NOTED THAT IN THE PAST; F EW NOTICES HAVE BEEN ISSUED BY THE REGISTRY BUT NO ONE HAS REP RESENTED THIS APPEAL OF THE RESPONDENT-ASSESSEE. THEREFORE, IT WA S DIRECTED TO ISSUE NOTICE THROUGH REVENUE DEPARTMENT. A COMPLIAN CE REPORT IS NOW PLACED BEFORE US. ACCORDING TO WHICH, IT IS INF ORMED THAT A NOTICE OF HEARING DATED 26 TH OF JUNE, 2013, FIXING THE DATE OF HEARING ON 20 TH OF AUGUST, 2013 HAS BEEN SERVED ON THE ASSESSEE ON 18 TH OF JULY, 2013. LEARNED SR.D.R. OF THE REVENUE DEPA RTMENT HAS THEREFORE FORWARDED THE REPORT OF THE SERVICE O F NOTICE AND PLEADED TO PROCEED WITH THE CASE EX-PARTE QUA THE A SSESSEE. CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES AND T HE NON CO- OPERATION ATTITUDE OF THE RESPONDENT ASSESSEE, WE H AVE DECIDED TO PROCEED WITH THIS CASE. HENCE HEARD LEARNED DR. 3. LEARNED SR.D.R., MR. J.P. JANGID, HAS PLEADED TH AT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS NEVER PRODUCED THE BOOKS OF ACCOUNT AS NOTED BY THE AO IN THE IMPUGNED ASSESSMENT ORDER PASSED U/S. 143(3) DATED 24.12.2008. IN THE ABSENCE OF BOOKS OF ACCOUNT AND RELATED BILL S AND VOUCHERS, THE AO HAD ESTIMATED THE GP @ 10% OF THE ASSESSEE. LIKEWISE CERTAIN EXPENSES, GIFT AND LIABILITIES HAVE BEEN DI SALLOWED. HOWEVER, WHEN THE ISSUE WAS CARRIED BEFORE THE LEAR NED CIT(A), THE ASSESSEES BOOKS OF ACCOUNT HAVE BEEN ENTERTAIN ED BY LEARNED CIT(A) THAT TOO WITHOUT PROVIDING AN OPPORTUNITY TO THE REVENUE DEPARTMENT. THE MAIN CONTENTION OF LEARNED SR.D.R. BEFORE US IS THAT THE RELIEF WAS GRANTED BY LEARNED CIT(A) BY AD MITTING NEW ITA NO.1973/AHD/2010 ITO VS. SHRI GAUTAM KUMAR JAIN A. Y. 2006-07 - 3 - EVIDENCES, HENCE, COMPLETELY INFRINGED THE PROVISIO NS OF RULE 46A OF IT RULES. 4. HAVING HEARD THE SUBMISSIONS OF LEARNED SR.D.R., MR. J.P. JANGID, AND ON DUE EXAMINATION OF THE ORDER OF THE LEARNED CIT(A), IT IS APPARENT THAT CERTAIN NEW EVIDENCES H AVE BEEN ENTERTAINED BY LEARNED CIT(A) WITHOUT GRANTING AN O PPORTUNITY TO THE REVENUE DEPARTMENT. EVEN NO REMAND REPORT WAS C ALLED FOR FROM THE END OF THE AO. BECAUSE OF THIS REASON, WE HEREBY HOLD THAT THE PROCEDURE LAID DOWN UNDER RULE 46A HAS NOT BEEN FOLLOWED BY LEARNED CIT(A). THIS RULE PROVIDES THAT AN APPELLANT SHOULD NOT BE ENTITLED TO PRODUCE BEFORE LEARNED CI T(A) ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY; OTHER THAN T HE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF ASSESSMENT PRO CEEDINGS. HOWEVER, UNDER CERTAIN CIRCUMSTANCES LEARNED CIT(A) CAN ADMIT SUCH EVIDENCE BUT ONLY AFTER ALLOWING A REASONABLE OPPORTUNITY TO AO TO EXAMINE THOSE EVIDENCES. SINCE, THIS PROCEDUR E HAS NOT BEEN FOLLOWED, THEREFORE, WE DEEM IT PROPER TO REST ORE ALL THE GROUNDS BACK TO THE FILE OF THE FIRST APPELLATE AUT HORITY TO BE DECIDED DE NOVO, NEEDLESS TO SAY AFTER PROVIDING AN OPPORTUNITY TO THE REVENUE DEPARTMENT. WE HEREBY ALSO DIRECT THE R ESPONDENT ASSESSEE TO PRESENT HIMSELF EITHER PERSONALLY OR TH ROUGH AN AUTHORIZED REPRESENTATIVE WITHIN 30 DAYS ON RECEIPT OF THIS ORDER OF THE TRIBUNAL WITHOUT WAITING FOR ANY NOTICE OF HEAR ING FROM THE OFFICE OF THE LEARNED CIT(A), SO THAT THIS APPEAL C AN BE FINALIZED AT AN EARLY DATE. IN ANY EVENT, LEARNED CIT(A) IS AT L IBERTY TO PROCEED AS PER LAW TO GET THIS APPEAL DECIDED AS EARLY AS P OSSIBLE. ITA NO.1973/AHD/2010 ITO VS. SHRI GAUTAM KUMAR JAIN A. Y. 2006-07 - 4 - RESULTANTLY, ALL THE GROUNDS BEING RESTORED BACK FO R DE NOVO CONSIDERATION, HENCE, TO BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE ONLY. 5. IN THE RESULT, THIS APPEAL OF THE REVENUE MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE ONLY. SD/- SD/- (A.K. GARODIA ) (MUK UL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMB ER AHMEDABAD; DATED 23/08/2013 PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY / 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. *./ 0 / GUARD FILE. / BY ORDER, 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD