Jigna Shah, NY 11375 V. The ADIT.,Intnl.Taxation, Ahmedabad

ITA 2332/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0294 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 03-08-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SAKAR SHARMA SMT NEETA SHAH
• Keywords: Deemed to accrue or arise in india
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI D.C.AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 01/10/2009 DRAFTED ON: 1 4/10/2009 APPEAL(S) BY SL. NO(S). ITA NO(S) ASSESSMENT YEAR(S) APPELLANT RESPONDENT 1. 2332/AHD/2009 1999-2000 JIGNA SHAH 108-07, 65 TH ROAD #6E FOREST HILLS NY 11375 PAN : BWFPS 8832 L THE ADIT INTERNATIONAL TAXATION AHMEDABAD 2. 2333/AHD/2009 2000-01 -DO- -DO- 3. 2334/AHD/2009 2001-02 -DO- -DO- 4. 2335/AHD/2009 2002-03 -DO- -DO- 5. 2336/AHD/2009 2003-04 -DO- -DO- 6. 2337/AHD/2009 2004-05 -DO- -DO- 7. 2338/AHD/2009 2005-06 -DO- -DO- ASSESSEE BY : SHRI SAKAR SHARMA REVENUE BY : SMT. NEETA SHAH, SR.DR O R D E R PER BENCH :- THESE ARE SEVEN APPEALS FILED BY THE ASSESSEE AGA INST THE ORDER OF THE LEARNED CIT(APPEALS)-GANDHINAGAR DATED 18/05/2009 PASSED FOR ASSESSMENT YEARS 1999-2000 TO 2005-06 BY RAISING FOLLOWING COMMON GROUNDS:- ITA NOS.2332 TO 2338/AHD/2009 JIGNA SHAH VS. ADIT (INTERNATIONAL TAXATION),AHD. ASST.YEARS - 1999-2000 TO 2005-06 - 2 - FROM ASSESSMENT YEAR 2001-02 YOUR APPELLANT BEING DISSATISFIED WITH THE ORDER PA SSED BY THE LD.CIT(A), GANDHINAGAR PRESENTS THIS APPEAL AGAINST THE SAME ON THE FOLLOWING GROUNDS. 1. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN DIS MISSING APPEAL EX-PARTE. 2. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CON FIRMING ACTION OF ASSESSING OFFICER MAKING ASSESSMENT U/S.1 53C OF THE ACT. 3. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CON FIRMING ADDITION OF RS.5,77,000/- ON ACCOUNT OF ALLEGED EAR NING OF INTEREST INCOME ON OLD ADVANCE GIVEN FOR ACQUIRING LAND/PROPERTIES PART OF WHICH REMAINED UNRECOVERED. 4. THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CON FIRMING ADDITION OF RS.2,00,000/- U/S.69A AS DEEMED INCOME OF THE APPELLANT WITHOUT APPRECIATING THAT THE AMOUNT SO R EALIZED IS NOTHING BUT PART RECOVERY OF PRINCIPAL AMOUNT SO ADVANCED. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER AND/OR AM END ALL OR ANY OF GROUNDS BEFORE THE FINAL HEARING OF APPEAL. 2. SINCE THE ISSUES INVOLVED IN ALL THESE APPEALS A RE COMMON, THEY ARE DISPOSED OF TOGETHER FOR THE SAKE OF CONVENIENC E. 3. IN THIS CASE, SEARCH U/S.132 OF THE I.T. ACT, 1 961 WAS CONDUCTED AT THE BUSINESS PREMISES ON M/S.J.P. CONS TRUCTION AT ISCON ITA NOS.2332 TO 2338/AHD/2009 JIGNA SHAH VS. ADIT (INTERNATIONAL TAXATION),AHD. ASST.YEARS - 1999-2000 TO 2005-06 - 3 - CENTRE, SHIVRANJNI CHAR RASTA, AHMEDABAD ON 09/02/2 005. THE ASSESSING OFFICER NOTED THAT CERTAIN LOOSE-PAPERS W ERE SEIZED IN THE SEARCH BEING PAGE NOS.50, 51 & 52 OF ANNEXURE A-1 O UT OF WHICH PAGE NO.52 GAVE THE DETAILS OF SHERAFI TRANSACTIONS CARRIED OUT DURING THE PERIOD FROM FEBRUARY-1996 TO OCTOBER-2003. THE RE IS A STATEMENT BY MR. JIGEN H.SHAH REGARDING THE TRANSACTIONS NOTE D ON PAGE NO.52 RELATED TO MS.JIGNA BIPIN SHAH, I.E. ASSESSEE. ACC ORDINGLY, PROCEEDINGS U/S.153C R.W.S. 143(3) OF THE I.T. ACT , 1961 WERE INITIATED. THE ASSESSING OFFICER AFTER GIVING AN O PPORTUNITY OF BEING HEARD TO THE ASSESSEE TAXED INTEREST INCOME CALCUL ATED @ 12% ON OUTSTANDING AMOUNT WITH MR.JIGEN H.SHAH. THE ASSES SEE FILED AN APPEAL BEFORE THE LEARNED CIT(APPEALS) WHO DISMISSE D THE SAME ON ACCOUNT OF NON-PROSECUTION, BY OBSERVING AS UNDER:- THESE ARE APPEALS FILED AGAINST ORDERS U/S.143(3) R.W.S.153C OF THE I.T. ACT PASSED BY ADIT, INTERNATIONAL TAXAT ION, AHMEDABAD. THESE APPEALS HAVE BEEN FILED BY SHRI N ARESH KAPADIA, P.A.O. HOLDER OF THE APPELLANT. THE APPEA LS WERE FIXED FOR HEARING VIDE NOTICE DATED 20/03/2009 ISSU ED IN THE NAME OF SHRI NARESH KAPADIA AS P.A.O. HOLDER OF THE APPELLANT SMT.JIGNA B.SHAH, WHO HAD FILED THE APPEALS. THE S AID NOTICES CAME BACK UNSERVED WITH THE REMARK REFUSED. CONS EQUENTLY, ANOTHER SET OF NOTICES WERE ISSUED BY 04/05/2009 FI XING THE CASE FOR 15/05/2009. THE SAID NOTICES STAND SERVED AT THE ADDRESS LISTED IN FORM NO.35 AND THE ACKNOWLEDGEMEN T IS ON ITA NOS.2332 TO 2338/AHD/2009 JIGNA SHAH VS. ADIT (INTERNATIONAL TAXATION),AHD. ASST.YEARS - 1999-2000 TO 2005-06 - 4 - RECORD. HOWEVER, ON THE APPOINTED DATE NOBODY HAS ATTENDED. ALSO THERE IS NO WRITTEN COMMUNICATION IN THE CONTE XT. 2. IN VIEW OF THE ABOVE, IT IS MORE THAN CLEAR THAT THE APPELLANT IS NOT WILLING TO PURSUE THE APPEALS FILE D. CONSEQUENTLY I AM LEFT WITH NO ALTERNATIVE BUT TO D ISMISS THE APPEALS, WITHOUT GOING INTO THE MERITS OF THE ISSUE S INVOLVED. 4. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT PROPER OPPORTUNITY OF HEARING HAS N OT BEEN PROVIDED AND THE ASSESSEE HAS BEEN TAXED ON THE BASIS OF STA TEMENT OF THIRD PARTY. NO OPPORTUNITY TO CROSS-EXAMINE THE CONC ERNED PARTIES HAVE ALSO BEEN GIVEN. THE LEARNED CIT(APPEALS) PASSED EX-PARTE ORDER WITHOUT DISCUSSING THE ISSUE(S) ON MERITS. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. AFTER HEARING THE PARTIES, WE RESTORE THE MATTER TO THE FILE OF LEARNED CIT(APPEALS) TO DECIDE THE ISSUE(S) RAISED BY THE ASSESSEE BEFORE HIM, EVENTHOUGH HE MIGHT HAVE BEEN PASSED AN EX-PARTE ORDER. THE RIGHTS AND LIABILITIES OF THE PARTIES S HOULD BE ADJUDICATED BY THE APPELLATE AUTHORITIES WHEN DISPUTED BEFORE H IM, EVENTHOUGH ONE OF THE PARTIES WAS UNABLE TO PRESENT HIMSELF BE FORE THE APPELLATE ITA NOS.2332 TO 2338/AHD/2009 JIGNA SHAH VS. ADIT (INTERNATIONAL TAXATION),AHD. ASST.YEARS - 1999-2000 TO 2005-06 - 5 - AUTHORITIES FOR SOME REASONS OR OTHER. THEREFORE, WE DIRECT THE LEARNED CIT(APPEALS) TO DECIDE THE ISSUE(S) RAISED BEFORE HIM ON MERITS AND ALSO PROVIDE PROPER OPPORTUNITY TO THE A SSESSEE TO EXPLAIN HER STAND. 7. AS A RESULT, ALL THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 16/10/2009. SD/- SD/- ( MAHAVIR SINGH ) ( D.C.AGRAWAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 16/10/2009 T.C. NAIR COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPO NDENT 3. THE CIT CONCERNED. 4. THE LD. CIT(AP PEALS)-GANDHINAGAR 5. THE DR, AHMEDABAD BENCH.6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD