The DCIT, Circle-2, JUNAGADH V. Shri H.B. Shah (Individual), Una

ITA 217/RJT/2011

• Counselvise Citation: 21724914 RSA 2011
• Duration Of Justice: 2 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-06-2013
• Assessment Year: 1987-1988
• Appeal Filed On: 11-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJIV RANADE
• Assessee Lawyers: J C RANPURA
• Keywords: Unexplained investment
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL: RAJKOT BENCH: RAJKOT BEFORE SHRI T K SHARMA, JM AND SHRI D K SRIVASTAVA, AM ITA NO. 189 /RJ T/2011 ASSESSMENT YEAR : 1987 - 88 SHRI HIMATLAL B SHAH, NR. HARSHAD MATAJIS TEMPLE, UNA PAN : AIHPS 9282 L V. DCI T, JUNAGADH CIRCLE - 1, JUNAGADH ITA NO. 217/RJT/2011 ASSESSMENT YEAR : 1987 - 88 DCIT, CIRCLE - 2 , JUNAGARH V. SHRI HIMATLAL B SHAH DATE OF HEARING : 12.06 .2013 DATE OF PRONOUNCEMENT : 21 .0 6 .2013 ASSESSEE BY : SH RI J C RANPURA , CA REVENUE BY : SHRI RAJIV RANADE, DR ORDER D K SRIVASTAVA: BOTH THE PARTIES , NAMELY, THE REVENUE AND THE ASSESSEE ARE IN APPEAL AGAINST THE ORDER PASSED BY THE LD CIT(A) - IV, RAJKOT ON 24.02.2011. BEING CROSS - APPEALS, BOTH OF THEM ARE BEING DISPOSED OF BY A CONSOLIDATED ORDER. 2. IN ITA NO.189/RJT/2011 , THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: - 1. THE GROUNDS OF APPEAL MENTIONED HEREUNDER ARE WITHOUT PREJUDICE TO ONE ANOTHER. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - IV, RAJKOT [HEREINAFTER REFERRED TO AS THE CIT(A)] ERRED ON FACTS AS ALSO IN LAW IN ESTIMATING INTEREST INCOME OF THE APPELLANT @24% ON ADVANCES OF RS.5,00,000/ - AND THEREBY ENHANCING INCOME BY RS.1,20,000/ - . THE ADDITION BEING U NJUSTIFIED ON FACTS AS ALSO IN LAW MAY KINDLY BE DELETED. 3. THE LD. CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CONFIRMING THE ADDITION OF RS.5,04,455/ - MADE U/S 69A OF THE ACT ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN SILVER ARTICLES. THE ADDITION BEI NG UNJUSTIFIED ON FACTS AS ALSO IN LAW MAY KINDLY BE DELETED. 4. YOUR HONOURS APPELLANT CRAVES LEAVE TO ADD, TO AMEND, ALTER, OR WITHDRAW ANY OR MORE GROUNDS OF APPEAL ON OR BEFORE THE HEARING OF APPEAL. 2 ITA 189 & 217 /RJT/2011 3. IN ITA NO.217/RJT/2011, THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.36,000/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH FOUND DURING THE SEARCH PROCEEDINGS, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORDS BY THE AO. 2. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.9,26,988/ - MADE BY THE AO ON ACCOUNT OF THE VALUE OF UNEXPLAINED GOLD ORNAMENTS FOUND DURING THE SEARCH PROCEEDINGS, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD S BY THE AO. 3. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1,02,000/ - AND RS.9,200/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN FDRS, NSCS AND IBPS, FOUND DURING THE SEARCH PROCEEDINGS, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORDS BY THE AO. 4. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.2,56,560/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED PROMISSORY NOTES FOUND DURING THE SEARCH PROCEEDINGS, WITHOUT APPRECIATING THE FACTS BRO UGHT ON RECORDS BY THE AO. 5. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1,22,000/ - MADE BY THE AO AS UNEXPLAINED AGRICULTURAL INCOME, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORDS BY THE AO. 6. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.3,02,500/ - MADE BY THE AO AS UNEXPLAINED INVESTMENTS IN GODOWNS/SHOPS, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORDS BY THE AO. 7. ON THE FACTS OF THE CASE AND IN LAW THE LD CIT(A) OUGHT TO HAVE UPHE LD THE ORDER OF THE AO. 3 ITA 189 & 217 /RJT/2011 8. ANY OTHER GROUND THAT THE REVENUE MAY RAISE BEFORE OR DURING HEARING PROCEEDINGS BEFORE THE HONBLE ITAT. 9. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE CIT(A) - IV, RAJKOT MAY KINDLY BE SET - ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. 4. AT THE TIME OF HEARING , THE LD . AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FILED AN APPLICATION SEEKING ADMISSION OF ADDITIONAL GROUNDS OF APPEAL. THE SAID APPLICATION READS AS UNDER: - IN CONNECTION WITH THE ABOVE, YOUR HONOURS APPELL ANT MOST RESPECTFULLY BEGS TO SUBMIT AS UNDER: - 1. THE APPELLANT FILED AN APPEAL BEFORE THE INCOME - TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT [ITAT] ON 04.05.2011 WHICH IS FIXED FOR HEARING ON SEPTEMBER 25, 2012. 2. AT THE TIME OF FILING THE APPEAL BEF ORE THE HONBLE ITAT, GROUND RELATED TO TIME BARRING ASSESSMENT WAS REMAINED TO BE TAKEN. 3. THEREFORE, THE APPELLANT WISH TO RAISE THE FOLLOWING ADDITIONAL GROUND OF APPEAL AND REQUESTS THE HONBLE TRIBUNAL TO ADMIT THE SAME AND DECIDE ON MERITS: THE A SSESSMENT FINALIZED U/S 143(3) R.W.S 254 R.W.S 245HA(1) VIDE ORDER DATED 23.03.2009 IS BARRED BY LIMITATION AND THEREFORE BAD IN LAW AND VOID - AB - INITIO. THE AO OUGHT TO HAVE FINALIZED THE ASSESSMENT BEFORE 31.07.2008, WHICH HE FAILED TO FINALIZED AND THERE FORE THE SAME IS REQUIRES TO BE QUASHED, MAY KINDLY BE CANCELED. 4. THE ABOVE ADDITIONAL GROUND OF APPEAL WAS NOT TAKEN BEFORE THE FIRST APPELLATE AUTHORITY, HOWEVER, SINCE THE SAME IS ON LEGAL ISSUE AND GOING TO THE ROOT OF THE MATTER AND REQUIRING NO F URTHER FACTUAL INVESTIGATION MAY KINDLY BE ADMITTED AND DECIDE IT ON MERITS. IN THIS CONNECTION RELIANCE IS PLACED ON THE DECISIONS OF (I) HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL 4 ITA 189 & 217 /RJT/2011 POWER CO LTD VS. CIT (1998) 229 ITR 383 (SC), (II) HONBLE ALLA HABAD HIGH COURT IN THE CASE OF CIT VS. B. HILL & CO P LTD (1983) 142 ITR 185 AND (III) HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. D S SCREENS (P) LTD. 5. AT THE TIME OF HEARING , THE LD AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE PRESSED FOR ADMISSI ON OF ADDITIONAL GROUND OF APPEAL FOR THE DETAILED REASONS GIVEN IN THE APPLICATION. HE ALSO INVITED OUR ATTENTION TO THE ORDER PASSED BY THIS TRIBUNAL ON 28.09.2012 IN THE ASSESSEES OWN APPEAL FOR ASSESSMENT YEARS 1973 - 74 TO 1983 - 84 IN WHICH THE ISSUE R AISED IN THE ADDITIONAL GROUND OF APPEAL WAS RESTORED TO THE FILE OF THE LD CIT(A) FOR A FRESH DECISION. 6. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED THEIR SUBMISSIONS. THE ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE GOES TO THE ROOT OF THE MA TTER. IT IS A LEGAL GROUND. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS GIVEN COGENT REASONS FOR ADMISSION OF ADDITIONAL GROUND OF APPEAL. IN THIS VIEW OF THE MATTER, THE ADDITIONAL GROUND OF APPEAL IS ADMITTED. 7. THE ISSUE RAISED IN THE ADDI TIONAL GROUND OF APPEAL HAS BEEN RAISED FOR THE FIRST TIME. IT WAS NOT TAKEN BEFORE THE CIT(A) AND THEREFORE THE CIT(A) HAD NO OCCASION TO CONSIDER AND ADJUDICATE UPON THE ISSUE OF LIMITATION AS RAISED IN THE ADDITIONAL GROUND OF APPEAL. IN THIS VIEW OF TH E MATTER, THE ORDER PASSED BY THE CIT(A) IS SET ASIDE WITH THE DIRECTION TO CONSIDER THE ISSUE RAISED IN THE ADDITIONAL GROUND OF APPEAL BY THE ASSESSEE BEFORE THIS TRIBUNAL AND ADJUDICATE UPON THE SAME IN CONFORMITY WITH LAW. OTHER GROUNDS OF APPEAL TAKEN BY THE ASSESSEE BEFORE HIM WILL ALSO BE DECIDED AFRESH. WHILE PASSING THE APPELLATE ORDER AFRESH, THE CIT(A) SHALL ALSO DECIDE DE NOVO ALL THE ISSUES RAISED BY THE REVENUE IN ITS APPEAL BEFORE THIS TRIBUNAL . REASONABLE OPPORTUNITY OF HEARING SHALL BE GIVE N TO BOTH THE PARTIES. IN VIEW OF THE FOREGOING, B OTH THE A PPEAL S ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 21 . 06 . 201 3 SD/ - SD/ - (T. K. SHARMA) ( D. K. SRIVASTAVA) JUDICIAL MEMBER ACCOUNTANT M EMBER RAJKOT: 21 .0 6 .2013 B T 5 ITA 189 & 217 /RJT/2011 COPY OF ORDER FORWARDED TO: - 1 . APPELLANT SHRI HIMATLAL B SHAH, NR. HARSHAD MATAJIS TEMPLE, UNA 2 . RESPONDENT - DCIT, JUNAGADH CIRCLE - 1/CIRCLE - 2, JUNAGADH 3 . CONCERNED CIT - II I, RAJKOT 4 . CIT (A) - IV , RAJKOT 5 . D R, ITAT, RAJKOT 6 . GUARD FILE. BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT