The DCIT, Circle-9, Ahmedabad V. Shri Babulal K.Daga, Ahmedabad

ITA 2517/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0533 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 07-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: PF JAIN
• Keywords: Income from undisclosed sources; Difference of opinion; Change of opinion

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , .. , '# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R.MEENA, ACCOUNTANT MEMBER ./ I.T.A. NO.2517/AHD/2012 ( % & '& / ASSESSMENT YEAR : 2006-07) DCIT CIRCLE-9 AHMEDABAD % / VS. SHRI BABULAL K. DAGA PROP.OF PORBANDAR ROAD LINES P.B.PAREKH TOWER OPP.VANIJYA BHAVAN KANKARIA, AHMEDABAD ./ ./ PAN/GIR NO. : ADQPD 8962 R ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI D.K.SINGH, SR. D.R. / RESPONDENT BY : SHRI P.F.JAIN / DATE OF HEARING : 07/03/2013 !'# / DATE OF PRONOUNCEMENT : 15/3/13 $% / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE ARISING FRO M THE ORDER OF LD.CIT(A)-XV AHMEDABAD DATED 22/08/2013 PASSED F OR A.Y. 2006-07 AND THE SUBSTANTIVE GROUND RAISED IS REPRODUCED BEL OW:- 1) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV , AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.77,01,958/- MADE ON ACCOUNT OF U NPAID FREIGHT EXPENSES ON ACCOUNT OF UNDISCLOSED INCOME U /S.69C OF THE ACT. ITA NO.2517/AHD /2012 DCIT VS. SHRI BABULAL K.DAGA ASST.YEAR 2006-07 - 2 - 2. AT THE OUTSET, WE HAVE BEEN INFORMED THAT THE P ROCEEDINGS WERE STARTED BY THE AO IN CONSEQUENCE UPON AN ORDER PASS ED U/S.263 BY THE LD.COMMISSIONER. THEREFORE, THE IMPUGNED ASSESSMEN T ORDER NOW IN QUESTION BEFORE US WAS MADE U/S.143(3) R.W.S. 263 O F IT ACT DATED 09/12/2011. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, IT WAS NOTED BY THE LD.CIT(A) THAT THE S AID ORDER PASSED U/S.263 HAS ALREADY BEEN QUASHED BY THE TRIBUNAL. RELEVANT PARAGRAPH NO.5 OF CIT(A) REFERRING THE ORDER OF THE TRIBUNAL IS REPRO DUCED BELOW:- 5. I HAVE PERUSED THE FACTS OF THE CASE AS ENUMERA TED BY A.O. IN THE ORDER AND AS SUBMITTED BY APPELLANT. I HAVE PERUSED THE ORDER DT.31.07.12 OF HONBLE ITAT AHMEDABAD IN THE CASE OF APPELLANT AGAINST THE ORDER OF THE CIT IV AHMEDABAD U/S.263 OF THE ACT IN ITA NO.1368/AHD/2011. AFTER CAREFUL CON SIDERATION OF FACTS, SUBMISSION AND CONTENTION OF THE APPELLANT T HAT AFTER THE ORDER OF HONBLE ITAT AHMEDABAD DT. 31.07.12 WHEREI N THE ORDER U/S.263 OF THE ACT OF THE CIT IV WAS QUASHED, THERE REMAIN NO LEGAL SANCTITY OF THE ORDER PASSED BY A.O. U/S.143( 3) R.W.S. 263 OF THE ACT. HONBLE ITAT AHMEDABAD C BENCH IN ITS O RDER DT. 31.07.12 AT PARA 6 HELD THAT: WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELO W AND HEARD THE ARGUMENTS FROM BOTH THE SIDES. THE SURVEY DISC LOSURE HAS BEEN CONSIDERED BY THE A.O. HE HAS CONSIDERED UNP AID FREIGHT AND LIABILITY AND NO ADDITION WAS MADE ON ACCOUNT O F OUTSTANDING LIABILITY FROM UNACCOUNTED INCOME U/S.6 9C OF THE ACT. THE CIT HAS PASSED THE ORDER U/S.263 ON THE B ASIS OF LIABILITY OF RS.1,03,24,530/- HAS BEEN SHOWN AS UNP AID FREIGHT AS ON 31.03.2006 AND LIABILITY PAID RS.77,01,958/- DUR ING THE F.Y.05-06, WHICH HAS BEEN CONSIDERED BY THE A.O. T HE LD.CIT HAS FRAMED DIFFERENT OPINION ON SIMILAR FACTS CONSI DERED BY THE A.O. IN ASSESSMENT ORDER. THEREFORE, THE CIT ORDER U/S.263 IS A CHANGE OF OPINION. ACCORDINGLY WE SET ASIDE THE OR DER OF CIT DATED 10.03.2011. IT IS THEREFORE, THE IMPUGNED ORDER UNDER APPEAL IN COMPLIANCE OF THE ORDER U/S.263 OF THE ACT BECOME INFRUCTUOUS AND ADJUDICATION ITA NO.2517/AHD /2012 DCIT VS. SHRI BABULAL K.DAGA ASST.YEAR 2006-07 - 3 - ON MERIT BECOME ACADEMIC. CONSIDERING THE HONBLE ITAT ORDER, GROUND OF APPEAL THEREFORE, DOES NOT REQUIRE ADJUDI CATION ON MERIT SINCE BECOME ACADEMIC. 3. NOW BEFORE US, THE SAID ORDER OF THE ITAT C BE NCH AHMEDABAD BEARING ITA NO.1368/AHD/2011 FOR A.Y. 2006-07 DATED 31/07/2007 TITLED AS BABULAL K.DAGA VS. CIT HAS BEEN PLACED ON RECORD. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTA NCES OF THE CASE AND SPECIALLY WHEN A VIEW HAS ALREADY BEEN TAKEN BY THE RESPECTED CO- ORDINATE BENCH, THEREFORE WE FIND NO FALLACY IN THE DECISION TAKEN BY THE LD.CIT(A), THE SAME IS HEREBY APPROVED AND WE FIND NO FORCE IN THE GROUND OF THE REVENUE. GROUND IS DISMISSED. 4. IN THE RESULT, REVENUES APPEAL IS DISMISSED. SD/- SD/- ( &..'# ) ( ' ' ( ) $ )* $ ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 15/ 03 /2013 &.., .*../ T.C. NAIR, SR. PS ') * +,- .'-' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. , -. / / CONCERNED CIT 4. / () / THE CIT(A)-XV, AHMEDABAD 5. 234 **-., -.#, 5'$,$ / DR, ITAT, AHMEDABAD 6. 467 8 / GUARD FILE. ')% / BY ORDER, 2 * //TRUE COPY// // 0 ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD