Biharilal T.Patel, Surat V. The Income tax Officer,Ward-6(1), Surat

ITA 3083/AHD/2008

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1249 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 22-06-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 29-08-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Competent authority
• Section: 80HHC; 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ ITA NO. 3083 /AHD/ 2008 / ASSESSMENT YEAR : 2002 - 03 BIHARILAL T. PATEL, PROP. M/S. SHREE ROHINI ENTERPRISES, PLOT NO. 213/6, GIDC, PANDESARA, SURAT PAN : ACHPP 6748 E VS INCOME TAX OFFICER, WARD - 6(1), SURAT ./ ITA NO. 3317 /AHD/ 2008 / ASSESSMENT YEAR : 2002 - 03 INCOME TAX OFFICER, WARD - 6(1), SURAT VS BIHARILAL T. PATEL, PROP. M/S. SHREE ROHINI ENTERPRISES, PLOT NO. 213/6, GIDC, PANDESARA, SURAT PAN : ACHPP 6748 E / (APPELLANT) / (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI SANJAY KUMAR, SR DR / DATE OF HEARING : 22 / 0 6 /201 6 / DATE OF PRONOUNCEMENT: 22 / 06 /201 6 / O R D E R PER R.P. TOLANI , JUDICIAL MEMBER: - THESE CROSS APPEALS BY THE ASSESSEE AND REVENUE ARE DIRECTED AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - IV , SURAT DATED 18 . 07 .20 08 FOR ASSESSMENT YEAR 2002 - 03 . 2. EFFECTIVE GROUNDS RAISED BY THE ASSESSEE ARE TO THE EFFECT THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS : - I ) IN CONFIRMING THE ACTION OF REOPENING ASSESSMENT U/S 147/148 OF THE ACT; ITA NOS. 3088 & 3317/AHD/ 20 08 BIHARILAL T. PATEL VS. ITO - CROSS APPEALS AY : 2002 - 03 2 II ) IN PARTLY CONFIRMING THE ADDITION OF RS.74,10,342/ - OUT OF ADDITION OF RS.1,24,41,472/ - MADE BY THE AO, REJECTING THE BOOK S AND ESTIMATING THE GP. III ) IN CONFIRMING THE ADDITION OF RS.4,39,05,747/ - AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT; IV ) IN CONFIRMING THE DISALLOWANCE OF DEDUCTION U/S 80HHC OF THE ACT. 3 . THE SOLITARY GROUND RAISED IN REVENUES APPEAL READS AS UNDER : - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) - IV, SURAT HAS ERRED IN RESTRICTING THE ADDITION OF RS.1,24,41,472/ - TO RS.74,10,342/ - MADE ON ACCOUNT OF ESTIMATION OF GROSS PROFIT. 4 . IT IS OBSERVED THAT THESE APPEALS HAVE BEEN COMING UP FOR HEARING SINCE OCTOBER 2008 AND HAVE BEEN GOT ADJOURNED ON VARIOUS OCCASIONS BY THE ASSESSEE. BESIDES, SINCE LONG TIME THE ASSESSEE IS ALSO NOT RESPONDING TO THE NOTICES. A USEFUL REFERENCE CAN BE MADE TO THE DIRECTION GIVEN BY THE ITAT TO THE ASSESSEE ON 28.05.2013 WHICH READS AS UNDER: - 33/28.05.2013 APPELLANT BY : SH R. B. SHAH, AR; RESPONDENT BY SHRI D.P GUPTA, CIT - DR HEARING IS ADJOURNED TO 10.07.2013. ASSESSEE WAS ASKED TO INFORM AS TO WHAT HAPPENED CENTRAL EXCISE DEPTT AND THE NEXT DATE OF HEARING BEFORE THE EXCISE TRIBUNAL. PARTIES INFORMED (A/W ITA NO.3317/AHD/2008) THE AFORESAID DIRECTION IS SELF - SPEAKING THAT THE ASSESSMENT WAS FRAMED IN THE WAKE OF VIOLATION OF EXCISE LAW INASMUCH AS THE IMPORTED GOODS WERE SOLD IN THE GREY MARKET. SOME OF THE RELEVANT OBSERVATIONS OF THE LD. AO ARE AS UNDER: - 4.3 IN REPLY THE ASSESSEE HAS SUBMITTED COPY OF THE CERTIFICATED IN ANNEXURE - III ISSUED BY SUPERINTENDENT OF THE CENTRAL EXCISE DEPARTMENT, COPIES OF FORM NO.3 - A ETC BUT NEITHER PRODUCE ANY PARTY OF JOB WORKER OR ANY EVIDENCE ITA NOS. 3088 & 3317/AHD/ 20 08 BIHARILAL T. PATEL VS. ITO - CROSS APPEALS AY : 2002 - 03 3 CAPABLE OF VERIFICATION AND PR OVING THAT THE ASSESSEE HAS ACTUALLY PRODUCED GOODS. IN THIS CASE, IT IS PERTINENT TO NOTE HERE THAT THERE WAS A SEARCH ACTION ON 29.06.2001 CARRIED OUT BY THE EXCISE DEPARTMENT AND ON THE BASIS OF THE ENQUIRIES CONDUCTED BY THE EXCISE DEPARTMENT AND ON T HE BASIS OF MATERIAL FOUND BY THEM FROM THE PREMISES OF THE ASSESSEE THEY HAVE ALSO HELD THAT THE ASSESSEE HAS CLEARED DUTY FREE IMPORTS AND INDIGENOUS RAW MATERIALS. THE ASSESSEE HAS FAILED TO MAINTAINED TRUE AND CORRECT RECORD IN RESPECT OF THE RECEIPT , STORAGE, CONSUMPTION, PRODUCTION, DELIVERY OF THE DISPOSAL OF THE RAW MATERIAL ETC. THE ASSESSEE HAS REMOVED YARN PROCURED DUTY FREE WITHOUT OBTAINING ORDER OF COMPETENT AUTHORITY. THE ASSESSEE HAS NOT USED THE DUTY FREE INDIGENOUS AND IMPORTED RAW MATER IALS FOR THE MANUFACTURING OF THE FINISHED PRODUCTS TO BE EXPORTED. HENCE THE CERTIFICATES SUBMITTED BY THE ASSESSEE ARE NO EVIDENTIAL VALUE BECAUSE THE ISSUING DEPARTMENT ARE NOT RELIED UPON THE CERTIFICATED AND HELD THAT THE YARN SO IMPORTED ARE NOT USE D FOR THE PURPOSE OF THE MANUFACTURING OF THE GOODS TO BE EXPORTED. 5. THEREAFTER, THE LD. AO PROCEEDED TO VERIFY THE MATTER BY ISSUING NOTICES U/S 133( 6) WHICH REMAINED UNRESPONDED AND UNCOMPLIED BY THE ASSESSEE. IN VIEW OF VARIOUS OBSERVATIONS MADE IN THE ASSESSMENT ORDER, THE IMPUGNED ADDITIONS WERE MADE. 6. AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL WHERE THE LD. CIT(A) UPHELD THE RE - ASSESSMENT PROCEEDINGS ; AND EXCEPT REDUCING THE GP ESTIMATE AND GIVING P ART RELIEF ON THIS BEHALF, REST OF THE ADDITIONS WERE CONFIRMED. 7. LD. DR CONTENDS THAT THE ASSESSEE WAS DIRECTED TO PRODUCE THE ORDER OF THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL ( IN SHORT CESTAT ) IN ITS CASE, BUT THE ASSESSEE HAS TOTALLY BECOME NON - COOPERATIVE AND THE DEPARTMENT DOES NOT HAVE THE CESTAT ORDER EITHER. NOTICE OF HEARING WAS ATTEMPTED TO BE SERVED BY THE DEPARTMENT DESPITE INTIMATION ITA NOS. 3088 & 3317/AHD/ 20 08 BIHARILAL T. PATEL VS. ITO - CROSS APPEALS AY : 2002 - 03 4 THAT THE ASSESSEE IS NOT RESPONDING ; AND THE RELE VANT REPORT OF THE INCOME - TAX OFFICER, WARD 2(3)(1), SURAT IS AS UNDER: - KINDLY REFER TO THE LETTER NO.JT. CIT/ITAT/IV/D BENCH/2015 - 16 DATED 04.01.2016 OF THE JOINT CIT, D BENCH, ITAT, AHMEDABAD THROUGH WHICH HAS DIRECTED TO SERVICE THE NOTICE IN THE ABOVE MENTIONED CASE. 2. AS DIRECTED, INSPECTOR ATTACHED TO THIS OFFICE WAS DEPUTED FOR ENSURING SERVICE OF NOTICE. WHO PERSONALLY WENT TO THE ADDRESS MENTIONED ON THE NOTICE AND FOUND THIS PREMISES IS CLOSED FOR A LONG TIME. HOWEVER, EFFORTS WERE MADE TO LOCATE THE ASSESSEE AND THE NEW ADDRESS WAS GATHERED WHERE WIFE AND SON OF THE ASSESSEE ARE STAYING BUT THEY HAVE REFUSED TO ACCEPT THE NOTICE SAYING THAT WE CANT ACCEPT THIS AS WE HAVE NO RELATION NOW WITH SHRI BIHARILAL T. PATEL. EVEN SHRI BIHARILA L T. PATEL WAS CONTACTED ON PHONE (HIS CELL NUMBER 09374414146) WHO ASSURED THAT HE WILL ACCEPT THE NOTICE AFTER CONSULTING HIS ADVOCATE BUT HAS NOT TURNED UP . 3. IN VIEW OF THE SAME UNSERVED NOTICE IS RETURNED HEREWITH. IN VIEW OF THE ABOVE, THE ITAT MAY DECIDE THE APPEALS TAKING ALL THESE FACTS AND CIRCUMSTANCES OF THE CASE. 8. ON THE OTHER HAND, NONE APPEARED ON BEHALF OF THE ASSESSEE ; TH EREFORE, WE PROCEEDED TO HEAR THE APPEAL S EX - PARTE QUA THE ASSESSEE AND TO DECIDE THE APPEAL S AFTER TAKING INTO CONSIDERATION THE SUBMISSIONS OF THE LD. DR AND THE MATERIAL AVAILABLE ON RECORD. 9. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF LD. DR, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. IT CLEARLY EMERGES FR OM THE RECORD THAT THE ASSESSEE IS TOTALLY NON - COOPERATIVE AND NON - RESPONSIVE. THE NOTICES ARE BEING REFUSED TO BE ACCEPTED AND THE ASSESSEE DESPITE TELEPHONIC INFORMATION IS NOT COMING FORWARD TO ABIDE BY THE DIRECTION OF THE BENCH TO PUT UP HIS CASE. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES, WE DEEM IT PROPER TO REMIT THE ISSUES BACK TO THE FILE OF THE LD. AO TO DECIDE THEM AFRESH AFTER PROCURING THE CESTAT ITA NOS. 3088 & 3317/AHD/ 20 08 BIHARILAL T. PATEL VS. ITO - CROSS APPEALS AY : 2002 - 03 5 ORDER AND GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD IF IT IS AVAILED BY HIM. THUS, BOTH T HE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, ASSESSEES APPEAL AS WELL AS REVENUES APPEAL, BOTH ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 2 2 N D JUNE , 201 6 AT AHMEDABAD. SD/ - SD/ - ( ANIL CHATURVEDI ) ACCOUNTANT MEMBER ( R.P. TOLANI ) JUDICIAL MEMBER AHMEDABAD; DATED 2 2 / 0 6 /201 6 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD