SHRI SURESH AHUJA, RAIPUR (CG) V. THE DY. COMMISSIONER OF INCOME TAX 1(1), BHILAI(CG)

ITA 24/BIL/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4821 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 08-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RITUPARAN NAMDEO
• Assessee Lawyers: R B DOSHI
• Keywords: Principle of natural justice
• Section: 69

Judgement Text

1 ITA NO. 23 & 24/BIL/2016 IN THE INCOME TAX APPE LLATE TRIBUNAL RAIPUR BENCH: RAIPUR BEFORE SHRI R. K. PANDA, ACCOUNTANT ME MBER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A .NO. 23/RPR /2016 (A.Y 2012-13) RAJESH AHUJA C/O. R.B. DOSHI & CO. CHARTERED ACCOUNTANTS, SADANI CHOWK, SADANI BUILDING, 1 ST FLOOR, SADAR BAZAR RAIPUR (CG) ACGPA3442E (APPELLANT) VS DY. COMMISSIONER OF INCOME TAX 1(1) 32/32 BUNGALOWS BHILAI BHILAI (CG) (RESPONDENT) I.T.A .NO. 24/RPR/201 6 (A.Y 2012-13) SURESH AHUJA C/O. R. B. DOSHI & CO. CHARTERED ACCOUNTANTS, SADANI CHOWK, SADANI BUILDING, 1 ST FLOOR, SADAR BAZAR RAIPUR (CG) ACGPA3440G (APPELLANT) VS DY. COMMISSIONER OF INCOME TAX- 1(1)] 32/32 BUNGALOWS BHILAI BHILAI (CG) (RESPONDENT) APPELLANT BY SH. R. B. DOSHI, CA RESPONDENT BY SH. RITUPARAN NAMDEO, DR ORDER PER SUCHITRA KAMBLE, JM THESE TWO APPEALS ARE FILED BY TWO DIFFERENT ASSESS ESES AGAINST THE ORDERS DATED 16/12/2015 & 14/12/2015 PASSED BY CIT(A)-II R AIPUR (CG) FOR ASSESSMENT YEAR 2012-13. THE ISSUE CONTESTED IN THE PRESENT APPEALS ARE IDENTICAL. DATE OF HEARING 13.08.2018 DATE OF PRONOUNCEMENT 23.10.2018 2 ITA NO. 23 & 24/BIL/2016 2. THE GROUNDS OF APPEAL ARE AS UNDER: I.T.A .NO. 23/RPR/2016 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD.CIT(A) ERRED IN CONFIRMING FOLLOWING ADDITIONS MADE BY A.O, INVOKIN G SECTION 69, ON ACCOUNT OF CASH FOUND DURING SEARCH CONDUCTED BY CENTRAL EX CISE DEPARTMENT:- A) ADDITION OF RS.70,00,000/- EXPLAINED TO BE ADVA NCE RECEIVED AGAINST SALE OF LAND AND; B) AUDITION OF RS.15,00,000/- EXPLAINED TO BE CASH BALANCE PERTAINING TO APPELLANTS WIFE SMT. REKHA AHUJA AND, C) RS. 13,88,000/- EXPLAINED TO BE CASH BALANCE PER TAINING TO VARIOUS FAMILY MEMBERS AND BUSINESS CONCERNS OF APPELLANT. LD.CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDIT IONS MADE BY THE A.O. I.T.A .NO. 24/RPR/2016 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN CONFIRMING FOLLOWING ADDITIONS MADE BY THE A.O, INVOKING SECTION 69, ON ACCOUNT OF CASH FOUND DURING SEARCH CONDUCTED BY CE NTRAL EXCISE DEPARTMENT:- A) ADDITION OF RS.30,00,000/- EXPLAINED TO BE ADVAN CE RECEIVED AGAINST SALE OF LAND AND; B) RS. 12,64,000/-EXPLAINED TO BE CASH BALANCE PERT AINING TO VARIOUS FAMILY MEMBERS AND BUSINESS CONCERNS OF APPELLANT. LD.CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDIT IONS MADE BY THE A.O. 3. THESE TWO APPEALS ARE ON IDENTICAL ISSUES, THERE FORE, WE ARE TAKING THE LEAD CASE OF RAJESH AHUJA BEING ITA NO. 23/RPR/2016 FIRST. THE ASSESSEE, SHRI RAJESH AHUJA, IS A DIRECTOR IN M/S ORIENTAL IS PAT PVT. LTD. AND M/S P. S. STEEL TUBES PVT. LTD. HE ALSO DERIVES INCOME FROM BHILAI STRUCTURE AND ORIENT STEEL RE-ROLLING MILLS WHICH IS A PARTNERSHIP CONCE RN. DURING THE FINANCIAL YEAR, THE CENTRAL EXCISE DEPARTMENTS CONDUCTED A SE ARCH ON 24/12/2011 AND 3 ITA NO. 23 & 24/BIL/2016 25/12/2011 IN THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE. DURING THE COURSE OF THE SEARCH PROCEEDINGS CASH AMOUNTING TO RS.1,13,83,000/- WAS FOUND AND SEIZED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE. THE SEIZED MATERIAL, RELATED DOCUMENTS INCLUDING THE STATEMENT RECORDED BY THE CENTRAL EXCISE AUTHORITIES WAS FORWARDED TO THE DCIT, CIRCL E 1(1), BHILAI. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCES OF THE CASH AMOUNTING TO RS.113.83 LACS FOUND AND SEIZED AT HIS RESIDENTIAL PREMISES. THE ASSESSEE FURNISHED DETAI LED SUBMISSIONS IN THIS REGARD EXPLAINING THE SOURCES OF THE CASH AND TO WH OM IT PERTAINS. THE ASSESSING OFFICER MADE ASSESSMENT AND ADDED RS. 15 LACS U/S 69 IN RESPECT OF UNEXPLAINED CASH IN THE HANDS OF THE ASSESSEE. 4. BEING AGGRIEVED BY THE SAME, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON 16/12/2015. 5. IN RELATION TO CASH FOUND AND SEIZED MATERIAL, T HE EXCISE AUTHORIZES ALSO CARRIED OUT PROCEEDINGS IN THE CASE OF P.S STEEL TU BES PVT. LTD. WHEREIN THE ASSESSEE IS A DIRECTOR. IT WAS ALLEGATION OF THE E XCISE DEPARTMENT THAT THE CASH SO FOUND REPRESENTS UNACCOUNTED SALE PROCEEDS. THE EXCISE ASSESSING AUTHORITY, ASSISTANT COMMISSIONER CUSTOMS AND CENTR AL EXCISE, DIVISION-1, BHILAI TREATED THE CASH SO FOUND AS SALE PROCEEDS A ND RAISED DEMAND FOR EXCISE DUTY THEREON. THE ISSUE WAS CARRIED BY P.S STEEL TU BES PVT. LTD. BEFORE COMMISSIONER (APPEALS), CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, RAIPUR WHO DECIDED THE APPEAL VIDE ORDER DATED 29/4/2016. THE EXPLANATION OF THE CASH FOUND DURING SEARCH REPRESENTING CASH BALANCE OF DI FFERENT FAMILY MEMBERS/ BUSINESS CONCERN WAS ACCEPTED BY THE COMMISSIONER ( APPEALS) CENTRAL EXCISE, CUSTOMS AND SERVICE TAX AND THE LEVY OF EXCISE DUTY BY THE ASSESSING AUTHORITY WAS CANCELLED. THE LD. AR RELIED UPON TH E ORDER DATED 29/4/2016 PASSED BY THE COMMISSIONER (APPEALS), CENTRAL EXCIS E, CUSTOM AND SERVICE TAX, RAIPUR AND SUBMITTED BEFORE US THAT THE SAME W AS NOT TAKEN INTO ACCOUNT BY THE CIT(A) AS THE ORDER OF THE CIT(A) IS PRIOR T O THE ORDER PASSED BY THE 4 ITA NO. 23 & 24/BIL/2016 COMMISSIONER (APPEALS), CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, RAIPUR. DURING THE HEARING, THE LD. AR SUBMITTED THAT THE T RIBUNAL HAS CALLED FOR REMAND REPORT IN CASE OF SHRI RAJESH AHUJA, BHILAI. THE ASSISTANT COMMISSIONER, INCOME TAX, 1(1) HAS PLACED REMAND RE PORT DATED 2/1/2018 BEFORE US WHEREIN, THE LD. AR POINTED OUT THAT THE ASSESSING OFFICER HAS FOUND THE ORDER OF THE COMMISSIONER (APPEALS), CENTRAL EX CISE CUSTOM AND SERVICE TAX, RAIPUR TENABLE. 6. THE LD. DR RELIED UPON THE ORDER OF THE ASSESSIN G OFFICER AS WELL AS THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD BEFORE US. IT WILL BE APPROPRIATE AT THIS S TAGE TO REMAND BACK THIS ISSUE TO THE FIE OF THE ASSESSING OFFICER AS THE ORDER OF THE COMMISSIONER (APPEALS), CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, RAIPUR WAS NOT AVAILABLE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE CIT(A). TH E FACT THAT THE ASSESSING OFFICER VIDE REMAND REPORT DATED 2/1/2018 FOUND THE SAID ORDER OF COMMISSIONER (APPEALS), CENTRAL EXCISE CUSTOM AND S ERVICE TAX TENABLE IS IN OUR OPINION NEEDS TO BE PROPERLY VERIFIED AT THE LE VEL OF THE ASSESSING OFFICER TO TAKE PROPER COGNIZANCE OF THE ACTUAL FACTS OF THE C ASE. THEREFORE, WE REMAND BACK THIS ISSUE TO THE FILE OF THE ASSESSING OFFICE R AND SET ASIDE THE ORDER OF THE CIT(A). NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPP ORTUNITY OF HEARING BY FOLLOWING PRINCIPAL OF NATURAL JUSTICE. THEREFORE, ITA NO. 23/RPR/2016 IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. AS REGARDS ITA NO. 24/RPR/2016, THERE ALSO THE R EMAND REPORT WAS CALLED BY US AND THE ASSESSING OFFICER THEREIN HAS ALSO FOUND THE ORDER OF THE COMMISSIONER (APPEALS), CENTRAL EXCISE CUSTOMS AND SERVICE TAX TENABLE. THEREFORE, IN THIS APPEAL, AS WELL THE IS SUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH THE IDENTICAL DIRECTIONS AS GIVEN IN ITA NO. 23/RPR/2016. HENCE, ITA NO. 24/RPR/2016 IS PARTLY ALLOWED FOR STATISTICAL 5 ITA NO. 23 & 24/BIL/2016 PURPOSE. 9. IN RESULT, BOTH THE APPEALS ARE PARTLY ALLOWED F OR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD OCTOBER, 2018 . SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 23/10/2018 *R.N COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT PRIVATE SECRETARY.. RAIPUR BENCH, RAIPUR. 6 ITA NO. 23 & 24/BIL/2016 DATE OF DICTATION 22.10.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22.10.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS .10.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT .10.2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .10.2018 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER 7 ITA NO. 23 & 24/BIL/2016