Shri Yagnesh Tulsibhai Manapara, Surat V. The Income Tax Officer, Ward 9(4), Surat

ITA 2289/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9549 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-01-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 12-09-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Recovery proceedings; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 142(1); 143(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2289/AHD/2013 / ASSTT. YEAR: 2008-2009 SHRI YAGNESH TULSIBHAI MANAPARA 18, SHIVAM ROW HOUSE NR. DHARAM NAGAR SOCIETY MAHADEV CHAWK, SATELLITE ROAD MOTA VARACHHA, SURAT 394 101. PAN : APOPM 2931 F VS ITO, WARD - 9(4) SURAT. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI M.J. SHAH REVENUE BY : SHRI K. MADHUSUDAN, SR.DR / DATE OF HEARING : 03/01/2017 / DATE OF PRONOUNCEMENT: 09 /01/2017 $%/ O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-V, SURAT DATED 3.6.2011 PASSED FOR THE ASSTT.YEAR 2008 -09. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.9,04,613/-. 3. BRIEF FACTS OF THE CASE ACCORDING TO THE AO ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 25.9.2008 DECLARING T OTAL INCOME AT RS.1,79,713/-. ACCORDING TO THE AO, THE CASE OF TH E ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE UNDER SECTION 143(2) WAS ISSUED ON 28.3.2009 WHICH WAS SERVED UPON THE ASSESSEE ON 2.9.2009. TH E ASSESSEE DID NOT RESPOND TO THE NOTICE ISSUED BY THE LD.AO UNDER SEC TION 142(1) AND 143(2) OF ITA NO.2289/AHD/2012 2 THE ACT. ACCORDINGLY, THE LD.AO HAS PASSED EX PARTE ORDER UNDER SECTION 144 OF THE ACT. HE FOUND THAT THERE WERE PURCHASES OF RS.32,59,756/- WHICH REMAINED UNVERIFIED, THEREFORE, HE DISALLOWED 25% O F THE PURCHASES WHICH COMES TO RS.8,14,936/-. HE ALSO DISALLOWED 25% OF THE TOTAL EXPENDITURE CLAIMED BY THE ASSESSEE, AND ACCORDINGLY, ADDITION OF RS.9,04,613/- HAS BEEN MADE. 4. DISSATISFIED WITH THE ADDITION, THE ASSESSEE CAR RIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. HE CONTENDED THAT HE IS A SALARIED PERSON. HE HAS NEVER DONE ANY BUSINESS. HE HAS NO T FILED HIS RETURN AS ALLEGED BY THE AO. THE LD.FIRST APPELLATE AUTHORIT Y HAS CALLED FOR REMAND REPORT FROM THE AO. COPY OF THE REMAND REPORT DATE D 12.12.2013 HAS BEEN PLACED ON RECORD. AFTER GOING THROUGH REMAND REPO RT, THE LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE, AND CONCUR WI TH THE AO. 5. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTS ET STATED THAT THE LD.CIT(A) HAS NOT ADDRESSED THE ISSUE WHETHER THE A SSESSEE HAS CARRIED OUT ANY BUSINESS ACTIVITY OR HAS FILED THIS RETURN OF I NCOME OR NOT. THE FINDING OF THE LD.CIT(A) IS BASED ON ASSUMPTION AND PRESUMPTIO N. HE TOOK ME THROUGH REMAND REPORT AND PRAYED THAT ORDERS OF THE REVENUE AUTHORITIES BE SET ASIDE AND THIS ISSUE BE RESTORED TO THE FILE OF THE AO FO R RE-ADJUDICATION. ON THE OTHER HAND, THE LD.DR RELIED UPON THE ORDER OF THE LD.CIT(A). 6. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GON E THROUGH THE RECORD. IT DEEM PERTINENT TO TAKE NOTE OF THE RELEVANT PART OF REMAND REPORT. IT READS AS UNDER: KINDLY REFER TO THE ABOVE. ITA NO.2289/AHD/2012 3 2. VIDE ABOVE REFERRED LETTER, YOUR HONOUR HAS DIRECTED TO SUBMIT THE REQUIRED REPORT IN THE ABOVE MENTIONED CASE AFTER V ERIFYING THE FOLLOWING POINTS:- (I) THE ASSESSEE HAS STATED THAT HE HAS SALARIED EM PLOYEE. GIVEN ALL DOCUMENTS PERTAINS TO INCOME -TAX RETURN TO THE ASS ESSEE AND TAKE AN AFFIDAVIT ON FACTS FROM ASSESSEE. SAME IS VERIFYING FROM THE ASSESSEE. (II.) THE INCOME -TAX RETURN WAS SELECTED FOR SCRU TINY UNDER CASS. ON WHICH POINTS THE CASE WAS SELECTED UNDER CASS. WHET HER THE ASSESSEE'S CASE WAS BELONGS TO CASS SELECTION OR NOT. PLEASE D EPUTE THE INSPECTOR TO SECRETLY VERIFYING THE OLD AND NEW ADDRESS OF ASSES SEE AND FIND OUT WHETHER THE BUSINESS ACTIVITIES WERE DONE OR WORKING OR NOT , BY THE ASSESSEE IN THE AREA. .. (III) THE INCOME TAX RETURN WAS SELECTED FOR SCRUTI NY UNDER CASS ON SCORE BASED. HENCE, THERE IS NO REASON FOR SELECTION IN S CRUTINY. (COPY ENCLOSED HEREWITH AS PER ANNEXURE-'A'). (IV) THE INSPECTOR ATTACHED TO THIS OFFICE WAS DEPU TED FOR SECRETLY VERIFYING THE OLD ADDRESS & NEW ADDRESS OF ASSESSEE AND FIND OUT REGARDING BUSINESS ACTIVITIES OF ASSESSEE IN PRESENT OR PAST. THE INSPECTOR ATTACHED TO THIS OFFICE HAS REPORTED THAT PLOT NO. 18, SHIVAM ROW HOUSE, VARACHHA MAIN ROAD, VARACHHA, SURAT, THI S IS NOT COMPLETE ADDRESS AND THERE IS NO BUILDING NAMELY SHIVAM ROW HOUSE, AT VARACHHA MAIN ROAD, VARACHHA, SURAT. THE SHIVAM ROW HOUSE IS FALLS IN THE AREA OF MOTA VARRACHHA, SURAT. THE ASSESSEE'S ANOTHER ADDRE SS 402, SETHBANDH /ANKUR CHAR RASTA, A.K. ROAD, SURAT, AT PRESENT, TH ERE IS RESIDING BY SHRI KARMISHIBHAI J. RAKHOLIYA. THE ASSESSEE'S PRESENT A DDRESS 18, SHIVAM ROW HOUSE, MOTA VARACHHA, SURAT IS CORRECT ADDRESS. THE ASSESSEE HAS DELIBERATELY SHOWN WRONG ADDRESS IN HIS RETURN OF I NCOME. FURTHER, INSPECTOR HAS REPORTED THAT THERE IS NO BUSINESS AC TIVITIES FOUND AT THE OLD & NEW ADDRESS OF THE ASSESSEE. (V) FURTHER, AFTER VERIFICATION OF THE CASE RECORDS , IT IS FOUND THAT THE ASSESSEE'S PAN ADDRESS IS 402, SETUBANDH APARTMENT, ANKUR CHAR RASTA, A.K. ROAD, SURAT. ON THIS ADDRESS ASSESSEE WAS RECI PIENT OF VARIOUS NOTICES U/S 143(2) & 142(1) OF LI. ACT & SHOW CAUSE NOTICE. ACTUALLY, THIS ADDRESS IS BELONGS TO ASSESSEE'S COUSIN BROTHER SHR I JIGNESHBHAI DEVASANBHAI SAVANI, AS STATED BY ASSESSEE VIDE HIS STATEMENT DATED 02.01.2013, BEFORE UNDERSIGNED. IT MEANS THE ASSESS EE HIMSELF MENTIONED THE ADDRESS 402, SETUBANDH APARTMENT, ANKUR CHAR RA STA, A.K. ROAD, SURAT IN HIS PAN APPLICATION AND HE WAS WELL KNOWN ABOUT ASSESSMENT PROCEEDINGS FOR A.Y. 2008-09 AND DELIBERATE LY HE DID NOT ATTENDED AT THE TIME OF ASSESSMENT PROCEEDINGS. ITA NO.2289/AHD/2012 4 (VII) FURTHER, THE ASSESSEE HAS NEVER ATTENDED DURI NG RECOVERY PROCEEDINGS, IT MEANS ASSESSEE WAS NEVER CO-OPERATIVE WITH THE D EPARTMENT. ON BASIS OF ABOVE FACTS, I WOULD BRING TO YOUR KIND NOTICE FROM THE RECORDS, IT IS SEEN THAT THE, ASSESSEE HAD NOT ATTENDED DURI NG THE ASSESSMENT PROCEEDINGS AS WELL AS RECOVERY PROCEEDINGS. THE AS SESSEE WAS NOT CO- OPERATIVE WITH THE DEPARTMENT. THEREFORE, THE APPEA L OF THE ASSESSEE MAY KINDLY BE DECIDED ON MERITS OF THE CASE AND FACTS R ECORDED IN THE ASSESSMENT ORDER. 6. THE LD.CIT(A) APPEARS TO HAVE BEEN INFLUENCED BY OBSERVATION OF THE AO THAT THE ASSESSEE HAS SHOWN HIS ADDRESS OF HIS C OUSIN MENTIONED IN THE PAN WITH THE DEPARTMENT. THEREFORE, IT SUGGESTS TH AT THE ASSESSEE HAS DELIBERATELY WITHHELD THE INFORMATION FROM THE DEPA RTMENT AND FILED THE RETURN BY MENTIONING INCORRECT ADDRESS. TO MY MIND THIS T YPE OF FINDING OF FACT SHOULD BE BASED ON CONCRETE EVIDENCE IN THE REMAND REPORT. THE AO HAS OBSERVED THAT THE ASSESSEE HAS NOT CARRIED OUT ANY ACTIVITY. IT IS TO BE ASCERTAINED WHETHER THIS RETURN OF INCOME WAS ACTUA LLY FILED BY THE ASSESSEE OR NOT. WHETHER, THE ASSESSEE HAS DONE ANY BUSINESS A CTIVITY OR NOT. IF THE ASSESSEE HAS NOT FILED RETURN OF INCOME, THEN WHO H AS PLAYED FRAUD WITH THE DEPARTMENT. THE LD.AO SHALL CARRY OUT A DETAILED I NQUIRY IN THIS REGARD AND IF HE FEELS NECESSARY, THEN REGISTER AN FIR FOR FINDIN G OUT WHO HAS COMMITTED A FRAUD WITH THE DEPARTMENT. AFTER ASCERTAINING THIS FACT, HE SHALL DECIDE WHETHER ANY TAXABLE INCOME IS ASSESSABLE IN THE HAN DS OF THE ASSESSEE OR NOT. APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 9 TH JANUARY, 2017 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 09/01/2017