Shree Sai Developers, SILVASSA V. The ACIT.,Cent.Circle-2, Surat

ITA 2637/AHD/2009

• Counselvise Citation: 263720514 RSA 2009
• Duration Of Justice: 2 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 19-03-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 24-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K GUPTA
• Assessee Lawyers: K N BHATT
• Keywords: Search and seizure; Principle of natural justice
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO.2637/AHD/2009 ASSESSMENT YEAR:2006-07 SHREE SAI DEVELOPERS, AVDHESH MANSION, PWD ROAD, SILVASSA -396 230 U.T. OF DADRA & NAGAR HAVELI PAN NO.AAMFS7210E / V/S . ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2, ROOM NO.504, AAYAKAR BHAVAN, SURAT-1 / APPELLANTT .. / RESPONDENT /BY APPELLANT SHRI K.N.BHATT, AR /BY RESPONDENT SHRI S.K.GUPTA, CIT-DR / DATE OF HEARING 19-03-2012 /DATE OF PRONOUNCEMENT 23-03-2012 !' !' !' !' / // / O R D E R PER T.R.MEENA, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-II, AHMEDABAD IN APPEAL NO. CIT(A)- II/CC.2/542/2008-09 DATED 27-08-2009. THE ASSESSMEN T WAS FRAMED BY THE ACIT, CENTRAL CIRCLE-2 SURAT VIDE HIS ORDER DATED 3 0-12-2008 FOR THE ASSESSMENT YEAR 2006-07. THE GROUNDS RAISED BY THE ASSESSEE AS UNDER:- 01 ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN NOT ADMITTING THE APPEAL FILED BY THE APPELLANT SOLELY BASED ON THE REASON THAT THE APPELLANT HAS NOT PAID THE TAX DUE ON THE RETURNED INCOME AT THE TIME OF FILING OF APPEAL. THE LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) MAY KINDLY BE DIRECTED TO ADMIT THE APPEA L AND ADJUDICATE THE SAME AS PER LAW. 02. ALTERNATIVELY AND WITHOUT PREJUDICE TO THE ABOV E ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE ITA NO.2637/AHD/2009 A.Y. 2006-07 SHREE SAI DEVELOPERS V. ACIT CC-2 SRT PAGE 2 FACT THAT THE APPELLANT HAS SUBSEQUENTLY PAID THE T AX DUE ON THE RETURNED INCOME DURING THE COURSE OF APPEAL PROCEED INGS. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) MAY KINDLY BE DIRECTED TO ADMIT THE APPEAL IN THE INTEREST OF NATURAL JUSTICE. 2. FACTS IN BRIEF ARE THAT A SEARCH AND SEIZURE OP ERATIONS U/S. 132 OF THE INCOME-TAX ACT, 1961 WAS CARRIED OUT AT THE RESIDEN TIAL PREMISES OF THE ASSESSEE BELONGING TO THE CHAUHAN GROUP OF SILVASSA . SUBSEQUENTLY, SURVEY PROCEEDINGS U/S. 133A WERE CONDUCTED AT THE FACTORY /BUSINESS PREMISES OF GROUP CONCERN ON 27-12-2006. THE ASSESSING OFFICER ISSUED NOTICE U/S. 153C OF THE ACT ON 05-03-2008 CALLING FOR THE RETURN OF INCOME FOR THE INSTANT A.Y. 2006-07 BEING CARRYING OUT OF THE SIX ASSESSMENT YE ARS I.E. A.Y. 2001-02 TO 2006-07. IN RESPONSE THERETO NOTICE U/S. 153C OF TH E ACT THE ASSESSEE FILED RETURN OF INCOME AT RS.1,41,36,090/- ON 28-03-2008. SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND A NOTICE U /S. 143(2) ON 28-04-2008 ALONG WITH ANNEXED DETAILED QUESTIONNAIRE DULY SERV ED UPON THE ASSESSEE. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF LAND DEA LING. THE ASSESSING OFFICER CALCULATED TOTAL TAX AT RS.1,82,44,783/- (T AX RS.1,19,95,107 + INTEREST RS.62,49,676/0) AND GAVE CREDIT OF RS.41 LAKH. 3. AGGRIEVED BY THIS ORDER ASSESSEE FILED APPEAL B EFORE LD. CIT(A). THE LD. CIT(A) PASSED ORDER ON 27-08-2009 OBSERVED THAT THE RETURN OF INCOME OF THE ASSESSEE WAS AT RS.1,41,36,090/- AND TOTAL TAX PAYA BLE WAS RS.60,07,324/- (TAX RS.42,58,208 + INTEREST U/S. 234A /234B /234C) RS.12,49,116/- WHEREAS ADMITTED TAX PAID IS ONLY RS.41 LAKH TILL THE DATE OF FILING OF THE APPEAL I.E. ON 31-12-2008. 4. THE LD. AR OF THE ASSESSEE CONTENDED THAT THE A SSESSEE HAD PAID TAX OF RS.46 LAKH UP TO 22-01-2009, WHEREAS THE DATE OF FI LING OF APPEAL WAS 29-01- 2009. THE AR OF THE ASSESSEE ALSO PRODUCED THE COPY OF CERTIFICATE ISSUED BY GUJARAT INDUSTRIAL CO-OPERATIVE BANK LTD. DATED 22- 02-2012 WHICH SHOWS THAT THE ASSESSEE HAD PAID RS.10 LAKH ON 12-06-2006 FOR INCOME-TAX. THE ITA NO.2637/AHD/2009 A.Y. 2006-07 SHREE SAI DEVELOPERS V. ACIT CC-2 SRT PAGE 3 REMAINING PAYMENT OF TAX HAS ALSO BEEN PAID BY THE ASSESSEE. THE LD. AR ALSO RELIED UPON VARIOUS CASE LAWS AS UNDER:- I) CIT V. KALIPADA GHOSH (1987) 167 ITR 173 (ORISS A) II) CIT V. SMT. NANHIBAI JAISWAL (1988) 171 ITR 64 6 (MP) III) SHYAM ELECTRIC WORKS V. CIT (2006) 284 ITR 41 3 (MP) IV) JAGDISH RAJ CHAUHAN V. CIT (2007) 311 ITR 303 (P&H) V) CIT V. PAWAN KUMAR LADDHA (2010) 324 ITR 324 (S C) VI) CIT V. SMT. DEIVAMALAR (2009) 309 ITR 249 (MAD ) VII) D.KAMALAKSHI V DCIT (2007) 292 ITR 99 (KAR) IN WHICH THE HONBLE COURTS HAVE DIRECTED TO THE LD . CIT(A) TO ADMIT THE APPEAL AND DECIDE THE CASE ON MERITS. THE LD. AR FURTHER R ELIED UPON THE CASE LAW IN THE CASE OF CIT V. MANOJKUMAR BERIWAL (2008) 217 CTR 407 (BOM), WHERE THE HONBLE BOMBAY HIGH COURT HAS HELD THAT FOR PUR POSE OF SECTION 249(4) THE TAX DOES NOT INCLUDE INTEREST. 5. ON THE CONTRARY, LD. CIT-DR ARGUED THAT I TAT B BENCH AHMEDABAD IN THE CASE OF KHUSHMANLAL HIRALAL V. ACIT IN ITA NO.1041/AHD/1993 ORDER DATED 16-11-1995 HELD THAT THE ASSESSEE HAD NOT PAI D TAX DUE ON RETURN OF INCOME BY THE DATE OF FILING OF APPEAL AGAINST THE ASSESSMENT, THE LD. CIT(A) WAS RIGHT IN HOLDING THAT APPEAL WAS NOT MAINTAINAB LE BECAUSE OF NON- COMPLIANCE WITH THE PROVISIONS OF SECTION 249(4)(A) OF THE ACT. THE ITAT B BENCH AHMEDABAD HAS ALSO CONSIDERED VARIOUS HONBLE HIGH COURTS CASES IN ABOVE JUDGMENT AND AFTER CONSIDERING THE VARIOUS DE CISIONS OF HONBLE HIGH COURTS THE APPEAL IS TO BE DISMISSED. 6. WE HAVE PERUSED THE MATERIALS AVAILABLE ON RECORD, SUBMISSIONS OF THE BOTH SIDES AND ORDERS OF AUTHORITIES BELOW. THE SECTION 249(4) WHICH IS REPRODUCED AS UNDER:- 249(1) (2) (3) .. (4) NO APPEAL UNDER THIS CHAPTER SHALL BE ADMITTED UNLESS AT THE TIME OF FILING OF THE APPEAL (A) WHERE A RETURN HAS BEEN FILED BY THE ASSESSEE, THE ASSESSEE HAS PAID THE TAX DUE ON THE INCOME RETURNED BY HIM; OR ITA NO.2637/AHD/2009 A.Y. 2006-07 SHREE SAI DEVELOPERS V. ACIT CC-2 SRT PAGE 4 (B) WHERE NO RETURN HAS BEEN FILED BY THE ASSESSEE , THE ASSESSEE HAS PAID AN AMOUNT EQUAL TO THE AMOUNT OF ADVANCE T AX WHICH WAS PAYABLE BY HIM : PROVIDED THAT, [IN A CASE FALLING UNDER CLAUSE (B) AND] ON AN APPLICATION MADE BY THE APPELLANT IN THIS BEHALF, T HE [COMMISSIONER (APPEALS)] MAY, FOR ANY GOOD AND SUFF ICIENT REASON TO BE RECORDED IN WRITING, EXEMPT HIM FROM T HE OPERATION OF THE PROVISIONS OF [THAT CLAUSE]] AS PER THE SECTION 249(4) THE ASSESSEE HAS TO PAY A DMITTED TAX BEFORE FILING OF THE APPEAL, PRIMA FACIE IN THIS CASE, THE ASSESSEE HAD PAID RS.46 LAKH BEFORE FILING OF THIS APPEAL I.E. ON 29-01-2009. THE REMAI NING PART OF TAX WHICH INCLUDED INTEREST WAS PAID UP TO 31-03-2009 AND TOT AL TAX OF RS.68.25 LAKH WAS PAID UP TO 31-03-2009. THIS ASPECT WAS ALSO CONTEND ED BEFORE THE LD. CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS BUT SAME HAS NOT BEEN CONSIDERED BY HIM. WE FIND THAT FOR THE INTEREST OF NATURAL JU STICE THE MATTER IS SET ASIDE TO THE FILE OF LD CIT(A) TO VERIFY THE PAYMENTS FIRST, IF CONTENTION OF THE ASSESSEE IS FOUND CORRECT THEN ADMIT THE APPEAL AND ADJUDICATE THE APPEAL ON MERIT. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23/03/2012 SD/- SD/- (MUKUL KUMAR SHAWART) (T.R.MEENA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) #!$%- 23 /03/2012 )!! * DKP* !' !' !' !' ++, ++, ++, ++, -, -, -, -, / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $$+0 1 / CONCERNED CIT 4. 1- / CIT (A) 5. ,45 +++0, +0, )!! / DR, ITAT, AHMEDABAD 6. 589 :; / GUARD FILE. BY ORDER/ !' , /TRUE COPY/