M/s. Shivam Investment, Mehsana V. The ACIT.,Mehsana Circle, Mehsana

ITA 2069/AHD/2008

• Counselvise Citation: 206920514 RSA 2008
• Duration Of Justice: 3 year(s) 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-12-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 29-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JASBIR S CHOUHAN
• Assessee Lawyers: S N DIVATIA
• Keywords: Income from undisclosed sources; Loose papers; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 2069/ AHD/2008 (ASSESSMENT YEAR 2004-05) M/S. SHIVAM INVESTMENT, C/O SHRI VIJAY P. PATEL, 29, UMIYES NAGAR SOCIETY. DAIRY ROAD, MEHSANA -2 VS. ACIT, MEHSANA CIRCLE, MEHSANA PAN/GIR NO. : AAHFS1665P (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI S N DIVATIA, AR RESPONDENT BY: SHRI JASBIR S CHOUHAN, SR. D.R. DATE OF HEARING: 19.12.2011 DATE OF PRONOUNCEMENT: 30.12.2011 O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) GANDHINAGAR DATED 29.02.2008 FOR THE ASSESSM ENT YEAR 2004-05. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THE ORDER PASSED U/S 250 DT. 29.02.2008 ON 29. 02.2008 BY CIT (A) GNR FOR A.Y. 2004-05 CONFIRMING THE ADDITION OF RS.61,01,104/-MADE BY AO IS WHOLLY ILLEGAL, UNLAWFU L AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2.1 THE LD' CIT (A) HAS GRIEVOUSLY ERRED IN LAW AND /OR ON FACTS IN PASSING THE ORDER IN A CRYPTIC MANNER AND FAILING T O CONSIDER FULLY AND PROPERLY THE SUBMISSIONS MADE AS WELL AS EVIDEN CE PRODUCED. 2.2 THE LD' CIT (A) HAS GRIEVOUSLY ERRED IN LAW AND/OR FACTS IN FAILING TO APPRECIATE THAT THE PROCEEDING U/S 153C OF THE ACT WERE ILLEGAL, UNLAWFUL AND BARRED IN LAW. 2.3 THAT I N FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN THE LAW THE LD' CIT (A) I.T.A.NO. 2069 /AHD/2008 2 OUGHT TO HAVE HELD THAT THE PROCEEDINGS INITIATED B Y AO U/S 153C WERE ILLEGAL AND BARRED IN LAW. 3.1 THE LD. CIT (A) HAS FAILED TO APPRECIATE T HAT THE EX-PARTY ASSESSMENT FRAMED BY AO WAS ILLEGAL AND BARRED IN L AW. 3.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN THE LAW THE LD' CIT (A) OUGHT TO HAVE APPRECIATE TH AT THERE WAS A SUFFICIENT- CAUSE FOR FAILURE TO ATTEND OR PRODUCE BOOKS OF ACCOUNTS ETC. TO AO. IN AS MUCH AS THERE WERE DISPUTES, CRIM INAL PROCEEDINGS AGAINST FIRM AND AMONGST ITS PARTNERS AND THE BOOKS OF ACCOUNTS ETC. SEIZED WITH THE COURT. 3.3 THE OBSERVATIONS MADE AND CONCLUSION REACH ED BY CIT (A) IN UPHOLDING THE ORDER OF AO ARE NOT ADMITTED BY TH E APPELLANT AND LIABLE TO BE DELETED. 4.1 THE LD' CIT (A) HAS GRIEVOUSLY ERRED IN LA W AND/OR FACTS IN UPHOLDING THAT THE NOTING ON THE LOOSE PAPERS 24 TO 28 AGGREGATION TO RS.61,01,1047- WAS UNACCOUNTED INCOME OF THE FIR M. 4.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD' CIT (A) OUGHT NOT TO HAVE HELD THAT TH E SEIZED LOOSE PAPERS DISCLOSED UNACCOUNTED INCOME OF THE APPELLAN T FIRM. 2. IT IS NOTED THAT IN THE PRESENT CASE, THE ASSESS MENT ORDER IS PASSED BY THE A.O. U/S 144 AND THE ORDER OF LD. CIT(A) IS ALSO EX-PARTE QUA THE ASSESSEE. IT WAS THE SUBMISSION OF THE LD. A.R. BE FORE US THAT IN THE FIRST ROUND, THE ASSESSEE COULD NOT MAKE PROPER REPRESENT ATION BEFORE THE AUTHORITIES BELOW BECAUSE THERE WAS DISPUTE BETWEEN PARTNERS OF THE ASSESSEE FIRM AND IT WAS REQUESTED THAT IF ONE MORE OPPORTUNITY IS PROVIDED TO THE ASSESSEE, THE ASSESSEE WILL MAKE PR OPER REPRESENTATION BEFORE THE A.O. LD. D.R. SUBMITTED THAT SUFFICIENT OPPORTUNITY WAS PROVIDED BY THE AUTHORITIES BELOW AND HENCE, ASSESS EE SHOULD NOT BE PROVIDED ANY FURTHER OPPORTUNITY. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON THIS ASPECT AND IN THE INTEREST OF JUSTICE, WE ARE OF THE CONSIDERED OPINI ON THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THERE WAS DISPUTE GOING ON BETWEEN THE PARTNERS OF THE ASSESSEE FIRM, THE ASSE SSEE SHOULD BE PROVIDED ONE MORE OPPORTUNITY. HENCE, WE SET ASIDE THE ORDE R OF LD. CIT(A) AND I.T.A.NO. 2069 /AHD/2008 3 RESTORE THE ENTIRE MATTER BACK TO THE FILE OF THE A .O. FOR A FRESH DECISION ON ALL ISSUES. 4. REGARDING VARIOUS SPECIFIC GROUNDS RAISED BY THE ASSESSEE, WE DO NOT FIND ANY REASON TO ADJUDICATE AT THIS STAGE BEC AUSE WE ARE RESTORING BACK THE ENTIRE MATTER TO THE FILE OF THE A.O. FOR A FRESH DECISION. WE DO NOT EXPRESS ANY OPINION ON THESE GROUNDS RAISED BY THE ASSESSEE BE F ORE US. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (G. C. GUPTA) (A. K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER SP ORDER PRONOUNCED ON 30.12.2011 SD./- SD./- (G.C.GUPTA)VP (B.P.JAIN)AM COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED BY ORDER 4. THE LD. CIT (APPEALS) 5. AR,ITAT,AHMEDABAD 6. GUARD FILE THE DR, AHMEDABAD 1. DATE OF DICTATION 21/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22/12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.23/12 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 30/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.30/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30/12/2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..