The ACIT, Circle-6, Ahmedabad V. M/s. Navdurga Specific Family Trust, Ahmedabad

ITA 2202/AHD/2009

• Counselvise Citation: 220220514 RSA 2009
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 13-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K VOHRA
• Assessee Lawyers: S N SOPARKAR
• Keywords: Additional evidence
• Section: 144

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , , , , !'# !'# !'# !'#, , , , $ $ $ $ %% % & %% % & %% % & %% % &, , , , ' ' ' ' ( # ( # ( # ( # BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND MUKUL KR. SHRAWAT, JUDICIAL MEMBER) ITA NO.2202/AHD/2009 [ASSTT. YEAR : 2006-2007] ACIT, CIR.6 AHMEDABAD. /VS. M/S.NAVDURGA SPECIFIC FAMILY TRUST NATRAJ INDUSTRIAL ESTATE OPP: UMA INDUSTRIAL ESTATE, SANAND AHMEDABAD. PAN : AAATN 0704 A ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ' . / (/ REVENUE BY : SHRI R.K. VOHRA 1& . / (/ ASSESSEE BY : SHRI S.N. SOPARKAR DATE OF HEARING : 14 TH SEPTEMBER, 2011 DATE OF PRONOUNCEMENT : 16 TH SEPTEMBER, 2011 (2 / O R D E R PER G.D. AGARWAL , VICE-PRESIDENT : THIS IS REVENUES APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEAL S)-XI, AHMEDABAD DATED 03.04.2009 ARISING OUT OF THE ORDER OF THE ASSESSIN G OFFICER UNDER SECTION 144 OF THE INCOME TAX ACT, 1961. 2. IN THIS APPEAL THE FOLLOWING GROUNDS ARE RAISED: 1. THE LD. COMMISSIONER OF INCOME TAX (A) - XI, AHMEDA BAD HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF R S.1,48,000/-MADE ON ACCOUNT OF MISCELLANEOUS WORK. 2. THE LD. COMMISSIONER OF INCOME TAX (A) - XI, AHMEDA BAD HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF R S.27,479/MADE ON ACCOUNT OF EMPLOYEE PF. 3. THE LD. COMMISSIONER OF INCOME TAX (A) - XI, AHMEDA BAD HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF R S.11, 925/-MADE ON ACCOUNT OF BONUS. 4. THE LD. COMMISSIONER OF INCOME TAX (A) - XI, AHMEDA BAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE OF RS.6,53,000/- ON ACCOUNT OF MANUFACTURING AND ADMIN ISTRATIVE ITA NO.2202/AHD/2009 -2- EXPENSES. 5. THE LD. COMMISSIONER OF INCOME TAX (A) - XI, AHMEDA BAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE OF RS.60,00,000/- ON ACCOUNT OF UNSECURED LOAN. 6. THE LD. COMMISSIONER OF INCOME TAX (A) - XI, AHMEDA BAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE OF RS.6,58,095/- ON ACCOUNT OF INTEREST. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) -XI, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 8. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CO MMISSIONER OF INCOME TAX (A) - XI, AHMEDABAD MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED DR THAT BEFORE THE AO THE ASSESSEE DID NOT FURNISH ANY DETA ILS. EVEN HE DID NOT APPEAR BEFORE THE AO, THEREFORE, THE ASSESSMENT WAS COMPLE TED UNDER SECTION 144. BEFORE THE CIT(A), THE ASSESSEE FURNISHED THE DETAI LS WHICH WOULD BE EVIDENT FROM THE ASSESSEES PAPER BOOK, PRODUCED BEFORE THE TRIBUNAL, WAS SUBMITTED BEFORE THE CIT(A) BUT NOT BEFORE THE AO. THAT AS P ER THE RULE 46A, IF THE ASSESSEE SUBMITS ANY FRESH EVIDENCE BEFORE THE CIT( A) HE OUGHT TO HAVE ALLOWED AN OPPORTUNITY TO THE AO TO EXAMINE THESE M ATERIAL AND ALSO PRODUCE ANY EVIDENCE IN REBUTTAL THEREOF. ADMITTEDLY, THE CIT(A) HAS NOT FOLLOWED THE RULE 46A. HE THEREFORE SUBMITTED THAT EITHER THE O RDER OF THE CIT(A) SHOULD BE REVERSED AND THAT OF THE AO MAY BE RESTORED, OR THE MATTER SHOULD BE SET ASIDE TO THE FILE OF THE AO AND THE ASSESSEE SHOULD BE DI RECTED TO FURNISH ALL THE EVIDENCES BEFORE THE AO SO THAT THE AO CAN MAKE THE ASSESSMENT FRESH IN THE LIGHT OF THE EVIDENCE NOW PRODUCED BY THE ASSESSEE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE COULD NOT R EBUT THE CONTENTIONS MADE BY THE LEARNED DR. HE, HOWEVER, OBJECTED TO T HE SUBMISSIONS OF THE LEARNED DR THAT THE ORDER OF THE CIT(A) SHOULD BE R EVERSED AND THAT OF THE AO BE RESTORED. HE SUBMITTED THAT THE CIT(A) HAS CONS IDERED ALL THE MATERIALS AND THEREAFTER ADJUDICATED THE MATTER ON MERIT, THEREFO RE, AT THE MOST, THE MATTER CAN BE SET ASIDE TO THE FILE OF THE AO FOR RE-EXAMINATI ON. HE ALSO ASSURED THAT IF THE ITA NO.2202/AHD/2009 -3- MATTER IS SET ASIDE TO THE FILE OF THE AO, THE ASSE SSEE WILL FURNISH ALL THE MATERIALS BEFORE THE AO. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. ADMITTEDLY, IN THIS CASE THE ASSESSEE HAS PRODUCED FRESH EVIDENCE BEFORE THE CIT(A) WHICH HAS BEEN ADMITTED BY HIM. SUB-RULE (3) OF RULE 46A READS AS UNDER: (3) THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CA SE MAY BE, THE COMMISSIONER (APPEALS) SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE ASSESSING OF FICER HAS BEEN ALLOWED A REASONABLE OPPORTUNITY-- (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS -EXAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITN ESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. ADMITTEDLY, THE CIT(A) HAS NOT FOLLOWED THE ABOVE S UB-RULE (3) OF RULE 46A BECAUSE HE HAS NOT ALLOWED ANY OPPORTUNITY TO THE A O TO EXAMINE THE FRESH EVIDENCE FURNISHED BEFORE HIM. WE THEREFORE DEEM I T PROPER TO SET ASIDE THE ORDER OF THE AUTHORITIES BELOW AND RESTORE THE MATT ER BACK TO THE FILE OF THE AO. WE DIRECT THE ASSESSEE TO PRODUCE ALL THE EVIDENCES AND EXPLANATIONS BEFORE THE AO. WE ALSO DIRECT THE AO TO ALLOW ADEQUATE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE AND THEREAFTER ADJUDICATE THE ISSUE AFRESH AFTER CONSIDERING THE EVIDENCE THAT MAY BE PRODUCED BEFORE HIM BY THE ASS ESSEE. 6. IN THE RESULT, REVENUE APPEAL IS DEEMED TO BE AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT THE DATE MENTIONED O N THE FIRST PAGE OF THIS ORDER. SD/- SD/- ( %% % & %% % & %% % & %% % & /MUKUL KR. SHRAWAT ) ' ' ' ' /JUDICIAL MEMBER ( . .. . . .. . G.D. AGARWAL) !'# !'# !'# !'# /VICE-PRESIDENT