M/s. Satilal C.Chokshi & Co., Ahmedabad V. The ITO, Ward-10(4), Ahmedabad

ITA 2522/AHD/2011

• Counselvise Citation: 252220514 RSA 2011
• Duration Of Justice: 1 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 10-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: M K PATEL
• Keywords: Opportunity of being heard

Judgement Text

, , , , , , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD .., BEFORE SHRI B.P.JAIN, ACCOUNTANT MEMBER !./ I.T.A.NO.2522/AHD/2011 ( # $%# # $%# # $%# # $%# / / / / ASSESSMENT YEAR : 2008-09 ) M/S.SATILAL C.CHOKSHI & CO. 202, ASHOKA CHAMBERS NR.LIONS HALL MITHAKHALI ELLISBRIDGE, AHMEDABAD / VS. THE ITO WARD-10(4) AHMEDABAD & !./' !./ PAN/GIR NO. : ALYPM 0485 G ( &( / // / APPELLANT ) .. ( )*&( / RESPONDENT ) &( + / APPELLANT BY : SHRI M.K.PATEL, AR )*&( , + / RESPONDENT BY : SHRI B.L. YADAV, SR.DR -$. , /0 / / / / DATE OF HEARING : 19/09/2013 12% , /0 / DATE OF PRONOUNCEMENT : 19/09/2013 3 / O R D E R THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE LD.CIT(APPEALS)-XVI, AHMEDABAD DATED 18/08/2011 FOR THE ASSTT.YEAR 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GRO UNDS OF APPEAL:- (1) THAT THE LEARNED CIT(APPEALS) HAS GRIEVOUSLY ERRED IN PASSING EX-PARTE ORDER AND NOT CONSIDERING THE SUBM ISSION DATED 03/08/2011 FILED ON 16/08/2011 BY THE AUTHORI ZED REPRESENTATIVE. (2) THAT ON FACTS AND IN LAW THE LEARNED CIT(A) HAS GRI EVOUSLY ERRED IN CONFIRMING THE REJECTING OF BOOKS OF ACCOU NTS AND GROSS PROFIT ADDITION OF RS.1,74,103/-. ITA NO.2522/AHD /2011 M/S.SATILAL C.CHOKSHI & CO. VS. THE ITO ASST.YEAR - 2008-09 - 2 - (3) THAT THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN CON FIRMING THE ADDITION OF RS.2,57,038/- MADE U/S.40(A)(IA) OF THE ACT. (4) THE APPELLANT CRAVES LEAVE TO ADD, ALTER,AMEND ANY GROUND OF APPEAL. 2. THE BRIEF FACTS ARE THAT THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF TRADING IN CI PIPES, FITTINGS VALVES IN THE NAME AND STYLE OF M/S.SATILAL C.CHOKSHI & CO. THE ASSESSEE HAS DECLA RED A GROSS PROFIT AT THE RATE OF 20.4% ON THE TOTAL TURNOVER OF RS.50,8 6,005/- AS COMPARED TO GP RATE AT 26.11% ON A GROSS TOTAL TURNOVER OF RS.3 5,44,020/- IN THE IMMEDIATELY PRECEDING YEAR. A SHOW-CAUSE NOTICE DA TED 19/11/2010 WAS ISSUED TO THE ASSESSEE IN WHICH CERTAIN EXPLANATION S WERE CALLED FOR. THE ASSESSEE DOES NOT MAINTAIN A DAY-TO-DAY STOCK REGIS TER IN RESPECT OF VARIOUS QUALITIES OF THE ITEMS ALONG WITH THE QUANT ITY IN WHICH IT DEALS. THE CORRECT POSITION OF THE CLOSING STOCK ALONG WIT H ITS VALUATION CANNOT BE CORRECTLY DEDUCED AND, ACCORDINGLY, THE ASSESSEE HAS INDULGED IN REDUCTION OF G.P. ACCORDINGLY, THE TRADING ACCOU NT RESULT OF THE ASSESSEE-FIRM IS REJECTED U/S.145(3) OF THE ACT BY THE AO AND APPLIED AN AVERAGE GP RATE FOR AYS 2008-09, 2007-08 & 2006-07 AT 23.83% BY MAKING AN ADDITION OF RS.1,74,103/-. 2.1. THE ASSESSEE HAD MADE CERTAIN EXPENSES IN WHIC H TDS PROVISIONS UNDER THE HEAD INSPECTION CHARGES AND INTEREST P AID ARE ATTRACTED. A SHOW-CAUSE WAS GIVEN. THE ASSESSEE SUBMITTED ORALL Y THAT IT HAD RECEIVED FROM NO.15G/15H FROM THE DEPOSITORS, BUT HOWEVER, T HEY COULD NOT BE SUBMITTED DURING THE ASSESSMENT PROCEEDINGS AND THE AO DISALLOWED A ITA NO.2522/AHD /2011 M/S.SATILAL C.CHOKSHI & CO. VS. THE ITO ASST.YEAR - 2008-09 - 3 - SUM OF RS.2,57,058/- U/S.40(A)(IA) OF THE ACT. TH E LD.CIT(A) HAS CONFIRMED THE ACTION OF THE AO. 3. THE LD.COUNSEL FOR THE ASSESSEE MR.M.K.PATEL ARG UED, AT THE OUTSET, THAT NO ADEQUATE OPPORTUNITY WAS GIVEN BY THE LD.CI T(A) AND THE DECISION HAS BEEN MADE EX-PARTE . MOREOVER, THE ASSESSEE COULD NOT PROCURE FORM NO.15G/15H WHICH WERE LATER ON PROCURED, BUT THE AS SESSEE DID NOT GET ANY CHANCE TO PRESENT THE SAME BEFORE THE LD.CIT(A) IN THE ABSENCE OF ANY OPPORTUNITY RECEIVED TO PRESENT THE CASE. MOR EOVER, THE ASSESSEE IS HAVING THE DETAILS OF BILLS WHICH WERE PURCHASED IN THE SAME FORM IN WHICH THEY WERE SOLD BUT THE ASSESSEE DID NOT GET A NY OPPORTUNITY TO PRESENT THE MATTER BEFORE THE AO AS WELL AS CIT(A). THE LD.COUNSEL FOR THE ASSESSEE THEREFORE PRAYED TO SET ASIDE THE MATT ER TO THE FILE OF AO AND IT WILL NOT SERVE ANY USEFUL PURPOSE IF THE MATTER IS SET ASIDE TO THE FILE OF CIT(A) SINCE THE CIT(A) AGAIN HAS TO ASK THE REMAN D REPORT FROM THE AO. 4. ON THE OTHER HAND, LD.DR OF THE REVENUE RELIED U PON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE FACTS OF THE CASE. I AM CONVINCED WITH THE ARGUMENTS MADE BY MR.M.K.PA TEL, LD.COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE COULD NOT PROCUR E FORM NO.15G/15H AND THE SAME COULD NOT BE PRESENTED BEFORE THE ASSE SSING AUTHORITY OR LD.CIT(A) FOR THE REASONS MENTIONED HEREINABOVE. I AM ALSO CONVINCED THAT IF THE MATTER IS RESTORED TO THE FILE OF LD.CI T(A) WHO HAS PASSED THE ORDER EX-PARTE WILL NOT SERVE ANY PURPOSE SINCE THE LD.CIT(A) HAS TO ITA NO.2522/AHD /2011 M/S.SATILAL C.CHOKSHI & CO. VS. THE ITO ASST.YEAR - 2008-09 - 4 - GET THE REMAND REPORT AND THE ASSESSEE HAS TO APPE AR BEFORE THE AO AGAIN IN THE REMAND PROCEEDINGS. THEREFORE, IN THE INTER EST OF JUSTICE AND IN THE CIRCUMSTANCES AND FACTS OF THE CASE, I SET ASIDE TH E WHOLE MATTER TO THE FILE OF AO WHO WILL ADJUDICATE THE MATTER DE NOVO , AFTER PROVIDING AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THUS, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED BU T FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- ( .. ) ( B.P. JAIN ) ACCOUNTANT MEMBER AHMEDABAD; DATED 19 / 09 /2013 60.., $.../ T.C. NAIR, SR. PS 3 , )/7 87%/ 3 , )/7 87%/ 3 , )/7 87%/ 3 , )/7 87%// COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT. 3. !! / -9 / CONCERNED CIT 4. -9() / THE CIT(A)-SVI, AHMEDABAD 5. 7$:; )/ , , / DR, ITAT, AHMEDABAD 6. ;<# =. / GUARD FILE. 3- 3- 3- 3- / BY ORDER, *7/ )/ //TRUE COPY// > >> >/ // / ! ! ! ! ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD