The ACIT, 3(1), V. M/s Rukmani Amuesment Ltd.,

ITA 291/IND/2006

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1475 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-11-2009
• Assessment Year: misc
• Appeal Filed On: 26-04-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K SINGH
• Assessee Lawyers: M C MEHTA; H CHIMNANI
• Keywords: Depreciation; Principle of natural justice; Additional evidence; Set aside

Judgement Text

- 1 - IN THE INCOME TAX APPELATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH AND SHRI V.K. GUPTA, AM ITA NO. 291/IND/06 A.Y. 2001-02 ASSTT. COMMR. OF INCOME TAX 3(1) BHOPAL APPELLANT VS. M/S RUKMANI AMUSEMENT LIMITED BHOPAL RESPONDENT PAN AABCR 8389 R APPELLANT BY SHRI K.K. SINGH, CIT DR RESPONDENT BY S/SHRI MC MEHTA AND H.CHIMNANI, CA O R D E R PER JOGINDER SINGH, JM THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE CIT(A)-I, BHOPAL, DATED 21.12.2005 ON THE FOLLOWING GROUNDS : - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN 1. DELETING THE ADDITIONS OF RS. 1,25,417/- + RS. 25,0 81/- RIGHTLY MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNRECOR DED INVESTMENT & INCOME THEREOF IN PURCHASE OF ICE CREA M - 2 - 2. DELETING THE ADDITIONS OF RS.25,000/- RIGHTLY MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ON THE BASIS OF LOO SE PAPER FOUND DURING THE COURSE OF SURVEY. 3. DELETING THE ADDITIONS OF RS. 6,17,446/- RIGHTLY M ADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNRECORDED INVESTME NT BY THE WAY OF CASH PAYMENT 4. DELETING THE ADDITIONS OF RS. 27,00,000/- RIGHTLY M ADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNPROVED SHARE APPL ICATION MONEY TREATING IT AS INCOME OF ASSESSEE COMPANY FRO M UNDISCLOSED SOURCES. 5. DELETING THE ADDITIONS OF RS. 19,82,554/- RIGHTLY M ADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNRECORDED INVESTME NT IN CONSTRUCTION. 6. DELETING THE ADDITIONS OF RS. 67,500/- RIGHTLY DISA LLOWED BY THE ASSESSING OFFICER ON ACCOUNT OF DEPRECIATION CL AIMED BY THE ASSESSEE COMPANY 7. DELETING THE ADDITIONS OF RS. 1,00,000/- RIGHTLY MA DE BY THE ASSESSING OFFICER ON ACCOUNT OF UNPROVED LOAN OF SH RI GOVIND PATIDAR 8. DELETING THE ADDITIONS OF RS. 20,000/- RIGHTLY DISA LLOWED BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISSION PAYM ENT. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I K.K. SINGH, LEARNED CIT DR AND SHRI M.C.MEHTA ALONG WITH SHRI H . CHIMNANI, LEARNED COUNSELS FOR THE ASSESSEE. AT THE OUTSET I T WAS POINTED OUT BY THE LEARNED CIT DR THAT THE ADDITIONAL EVIDENCE HAS BEEN ADMITTED BY THE LEARNED FIRST APPELLATE AUTHORITY WITHOUT SEEKI NG REMAND REPORT FROM THE ASSESSING OFFICER, THEREFORE, IT IS A CLEAR VIO LATION OF PRINCIPLES OF NATURAL JUSTICE TO THE REVENUE. IT WAS ALSO POINTE D OUT THAT IN IDENTICAL SITUATION IN ITA NO. 438/IND/05 THE TRIBUNAL REMAND ED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER. THE LD. CIT DR STRONGLY DEFENDED THE ASSESSMENT ORDER. HOWEVER, THE LEARNED COUNSEL FOR THE ASSESSEE - 3 - FAIRLY AGREED THAT THE ADDITIONAL EVIDENCE WAS ADMI TTED BY THE LEARNED FIRST APPELLATE AUTHORITY WITHOUT PROVIDING OPPORTU NITY TO THE REVENUE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE ARGUME NTS PUT-FORTH BY THE LEARNED RESPECTIVE COUNSELS, WE HAVE FOUND THAT THE LEARNED FIRST APPELLATE AUTHORITY ADMITTED THE ADDITIONAL EVIDENC E THAT TOO WITHOUT SEEKING REMAND REPORT FROM THE ASSESSING OFFICER. EVEN OTHERWISE, THE FACTS HAVE ALSO NOT BEEN CONSIDERED IN THE REQUIRED MANNER, THEREFORE, KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, THIS APPEAL OF THE REVENUE IS SET ASIDE TO THE FILE OF THE ASSESSING O FFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. NEEDLESS TO M ENTION HERE THAT DUE OPPORTUNITY BE PROVIDED TO THE ASSESSEE. THE ASSES SEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CL AIM. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF BOTH THE SIDES ON 25 TH NOVEMBER, 2009. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER 25 TH NOVEMBER, 2009 COPY TO APPELLANT/RESPONDENT/CIT/CIT(A)/DR *DN/