The ITO, Ward-6(4), Surat V. M/s. Siddhapara Textiles, Surat

ITA 29/AHD/2010

• Counselvise Citation: 2920514 RSA 2010
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 04-04-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 04-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ILAVARASI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO.29 / AHD/2010 (ASSESSMENT YEAR 2006-07.) ITO, WARD 6(4), SURAT VS. M/S. SIDDHAPARA TEXTILES, C-1/2, HOZIWALA ESTATE, SACHIN UDYOGNAGAR SAHAKARI SANGH, AT & PO SACHIN TAL. CHORYASI, DISTT. SURAT PAN/GIR NO. : AAIFM4055F C.O.27/AHD/2010 M/S. SIDDHAPARA TEXTILES VS. ITO, WARD 6(4), C-1/2 HOZIWALA ESTATE, SURAT SACHIN UDOGNAGAR SAHAKARI SANGH, AT & PO SACHIN TALK. CHORYASI, DISTT. SURAT (APPELLANT) .. (RESPONDENT) APPELLANT BY: MS. ILAVARASI, SR. DR RESPONDENT BY: NONE DATE OF HEARING: 04.04.2012 DATE OF PRONOUNCEMENT: 04.04.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL IS FILED BY THE REVENUE AND THE CROSS OBJECTION IS FILED BY THE ASSESSEE WHICH ARE DIRECTED AGAINST THE ORDE R OF LD. CIT(A) IV, SURAT DATED 14.09.2009 FOR THE ASSESSMENT YEAR 2006 -07. FOR THE SAKE OF CONVENIENCE, BOTH ARE BEING DISPOSED OFF BY WAY OF THIS COMMON ORDER. 2. BOTH THE APPEAL AND THE CO WERE FIXED FOR HEARIN G ON 04.04.2012 AND THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY RPAD WHICH HAS DULY BEEN SERVED ON THE ASSESSEE AS PER THE ACKNOWL EDGMENT AVAILABLE ON I.T.A.NO.29 /AHD/2010 C.O.NO.27/AHD/2010 2 RECORD AND HENCE, WE PROCEED TO DECIDE THIS APPEAL AND THE C.O. EX-PARTE QUA THE ASSESSEE. SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE APPOINTED DATE OF HEARING IN SPITE OF SERVICE OF NO TICE AND THERE IS NO REQUEST FOR ADJOURNMENT, , IT IS INFERRED THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING HIS C.O. AND HENCE, THE SAME IS LIABLE TO BE DISMISSED FOR NON PROSECUTION. IN OUR ABOVE VIEW, WE FIND SUPPORT FRO M THE FOLLOWING DECISIONS:- IN THE CASE OF CIT VS B.N. BHATTACHARGEE AND ANOTHE R, REPORTED IN 118 ITR 461 (RELEVANT PAGES 477 AND 478) WHEREIN TH EIR LORDSHIPS HAVE HELD THAT THE APPEAL DOES NOT MEAN MERELY FIL ING OF THE APPEAL BUT EFFECTIVELY PURSUING IT. IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS C IT 223 ITR 480 (M.P.) WHILE DISMISSING THE REFERENCE MADE AT THE I NSTANCE OF THE ASSESSEE IN DEFAULT MADE FOLLOWING OBSERVATION IN T HEIR ORDER:- IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS M ADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFERENC E, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. IN THE CASE OF CIT VS MULTIPLAN INDIA LIMITED; 38 ITD 320 (DEL), THE APPEAL WAS FILED BY THE REVENUE BEFORE THE TRIB UNAL, WHICH WAS FIXED FOR HEARING. BUT ON THE DATE OF HEARING, NOB ODY REPRESENTED THE REVENUE/APPELLANT NOR ANY COMMUNICATION FOR ADJ OURNMENT WAS RECEIVED. THERE WAS NO COMMUNICATION OR INFORMATIO N AS TO WHY THE REVENUE CHOSE TO REMAIN ABSENT ON DATE. THE TR IBUNAL ON THE BASIS OF INHERENT POWERS, TREATED THE APPEAL FILED BY THE REVENUE AS UNADMITTED IN VIEW OF THE PROVISIONS OF RULE 19 OF THE APPELLATE TRIBUNAL RULES, 1963. 3. IN THE RESULT, C.O. OF THE ASSESSEE STANDS DISMI SSED. 4. NOW, WE TAKE UP THE APPEAL FILED BY THE REVENUE. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: I.T.A.NO.29 /AHD/2010 C.O.NO.27/AHD/2010 3 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A)-IV, SURAT HAS ERRED IN DELETING THE ADDITION MADE BY THE A.O. OF RS.9,19,100/- U/S 68 OF THE INCOME T AX ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LD. CIT(A) IV SURAT OUGHT TO HAVE UPHELD THE OR DER OF THE A.O. 3. IT IS, THEREFORE, PRAYED THAT THE ORDERS OF THE LD. CIT(A) IV SURAT MAY BE SET ASIDE AND THAT OF THE A.O. RESTORE D. 5. LD. A.R. SUPPORTED THE ASSESSMENT ORDER. AT THI S JUNCTURE, IT WAS POINTED OUT BY THE BENCH THAT THIS ISSUE REGARDING INTRODUCTION OF CAPITAL BY THE PARTNER IN THE FIRM, IS COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDE RED IN THE CASE OF CIT VS PANKAJ DYESTUFF INDUSTRIES LTD. IN I.T. REFE RENCE NO.241OF 1993 ORDER DATED 06.07.2005. LD. D.R. OF THE REVENUE HA D NOTHING TO SAY. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. D. R. AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. SINCE THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT O F HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF P ANKAJ DYESTUFF (SUPRA), WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). THE A.O. IS AT LIBERTY TO TAKE ACTION AGAINST THE PARTNERS AS PER LAW AS H AS BEEN HELD BY HONBLE GUJARAT HIGH COURT IN THE ABOVE CITED CASE BUT THE ADDITION MADE IN THE HANDS OF THE FIRM IN RESPECT OF THE FRESH CAPITAL I NTRODUCED BY THE PARTNERS IS NOT SUSTAINABLE AND HENCE, WE DECLINE TO INTERFE RE IN THE ORDER OF LD. CIT(A). 7. IN THE RESULT, THE REVENUES APPEAL AND THE CROS S OBJECTION OF THE ASSESSEE BOTH ARE DISMISSED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP I.T.A.NO.29 /AHD/2010 C.O.NO.27/AHD/2010 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 04/04/2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER4/4.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 4/4/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.9/4 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 10/4/12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .