Shri Umang H. ThaKkar,HUF, Ahmedabad V. The Income tax Officer,Ward-9(4), Ahmedabad

ITA 3116/AHD/2010

• Counselvise Citation: 311620514 RSA 2010
• Duration Of Justice: 1 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 02-07-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 24-11-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KARTAR SINGH
• Assessee Lawyers: A K THAKKAR
• Keywords: Bogus purchase; Principle of natural justice; Valuation report
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI G. C. GUPTA, VP AND SHRI A. MOHAN ALAN KAMONY, AM) ITA NO.3116/AHD/2010 A. Y.: 2007-08 SHRI UMANG H. THAKKAR, HUF, SWAMINARAYAN KUTIR, OPP. YMCA CLUB, SARKHEJ GANDHINAGAR HIGHWAY, AHMEDABAD P. A. NO. AAAHU 3409 B VS THE INCOME TAX OFFICER, WARD 9 (4), AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY SHRI A. K. THAKKAR, AR RESPONDENT BY SHRI KARTAR SINGH, CIT DR DATE OF HEARING: 02-07-2012 DATE OF PRONOUNCEMENT: 02-07-2012 O R D E R PER A. MOHAN ALANKAMONY: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A) -XV, AHMEDABAD IN APPEAL NO. CIT(A)-XV/9(4)/406/09-10 DATED 22-09- 2010, FOR ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN CONFIRMING THE ADDITION OF RS.2,92,32,126/ - (2,76,941 + 16,29,735) MADE BY THE ASSESSING OFFICER FOR THE AL LEGED BOGUS CREDITORS AND/OR CEASED LIABILITY U/S. 41(1) OF THE INCOME TAX ACT 1961, 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.7,37,463/- M ADE BY THE ITA NO.3116/AHD/2010 (AY 2007-08) SHRI UMANG H. THAKKAR, HUF VS ITO, W-9(1), AHMEDABA D 2 ASSESSING OFFICER FOR THE ALLEGED BOGUS PURCHASES I N TRADING ACCOUNT OF SWAMINARAYAN DEVELOPERS 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT TAKING COGNIZANCE OF THE FACT THAT THE ASSESSING OFFICER HAS ADDED OPENING BALANCES & CREDITORS AS B OGUS PURCHASES WHEN IN FACT THERE IS NO PURCHASE RECORDE D IN THE YEAR OF APPEAL. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDITIONS TO THE EXTENT OF RS.10,68,000/- & RS.28,41,300/- U/S. 68 OF THE I. T. ACT, 1961 ALL EGING THAT THE PROPER CONFIRMATIONS NOT FURNISHED AND THE BOOKING AMOUNTS RECEIVED AS ADVANCES NOT FOUND ACCOUNTED OR CANCELL ED BY THE APPELLANT. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING ADDITIONS WITHOUT TAKING COGNIZ ANCE OF THE REMAND REPORT DTD. 17.09.2010. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT CONSIDERING THE VALUATION REPORT OF TH E GOVT. APPROVED VALUER WHICH CERTIFIES THE VALUE OF WIP & WHICH IS NOT DISPUTED BY THE ASSESSING OFFICER/COMMISSIONER OF I NCOME TAX (APPEALS). 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS.6,05,905 /- MADE BY THE ASSESSING OFFICER BEING THE AMOUNT OF DEDUCTION CLAIMED BY THE APPELLANT U/S. 80 IB OF THE INCOME TAX ACT, 1 961 IN DEVNANDAN ENTERPRISE. 8. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HOLDING THAT WHERE THE BUILDER RECEIVES A FIXED PERCENTAGE DEDUCTION U/S. 80 IB (10) IS NOT ALLOWAB LE. 9. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE A. O. IN COMP LETING THE ASSESSMENT AND PASSING AN ORDER IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY AND THEREBY ERRED IN DEPRIVING THE ITA NO.3116/AHD/2010 (AY 2007-08) SHRI UMANG H. THAKKAR, HUF VS ITO, W-9(1), AHMEDABA D 3 APPELLANT FROM MAKING EFFECTIVE REPRESENTATION AND FURNISHING THE DETAILS DURING THE COURSE OF ASSESSMENT PROCEED INGS. 10. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN CONFIRMING THE ACTION OF THE A. O. IN PASS ING AN ORDER IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY BY NOT AFFORDING THE APPELLANT THE OPPORTUNITY OF CROSS EX AMINATION IN SPITE OF SPECIFIC REQUEST TO THAT EFFECT MADE BY TH E APPELLANT. 11. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR MODIFY ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING OF APPEAL. 2. BRIEF FACTS: THE ASSESSEE IS A HUF AND FURTHER ENGAGED IN THE BUSINESS AS DEVELOPER FILED ITS RETURN OF INCOME DE CLARING AN INCOME OF RS.15,99,140/- ON 24-03-2008. THE CASE WAS SELE CTED FOR SCRUTINY AND ASSESSMENT ORDER WAS PASSED BY THE LEARNED AO U /S 143(3) OF THE ACT ON 31-12-2009 BY COMPUTING TOTAL INCOME OF THE ASSESSEE AT RS.7,85,06,300/- BY MAKING VARIOUS ADDITIONS AND D ISALLOWANCES, SINCE THE LEARNED AO DID NOT FIND THE EVIDENCES, EX PLANATIONS AND SUBMISSIONS OF THE ASSESSEE TO BE ACCEPTABLE. ON AP PEAL BY THE ASSESSEE BEFORE THE LEARNED CIT(A) THE ORDER OF THE LEARNED AO WAS CONFIRMED WITHOUT AWAITING FOR THE REMAND REPORT FR OM THE LEARNED AO, THOUGH THE LEARNED CIT(A) HAD CALLED FOR THE RE MAND REPORT FROM THE LEARNED AO BASED ON THE DETAILED WRITTEN SUBMIS SION SUBMITTED BY THE ASSESSEE. 3. BEFORE US, THE LEARNED AR ARGUED THAT THE ASSESS EE HAD FILED A DETAILED WRITTEN SUBMISSION WITH ALL PARTICULARS IN ORDER TO SUPPORT ITS CASE. THE LEARNED CIT(A) HAD REFERRED THE MATTER TO THE LEARNED AO IN ORDER TO OBTAIN A REMAND REPORT, BUT SINCE NO RE MAND REPORT WAS ITA NO.3116/AHD/2010 (AY 2007-08) SHRI UMANG H. THAKKAR, HUF VS ITO, W-9(1), AHMEDABA D 4 SUBMITTED BY THE LEARNED AO, THE LEARNED CIT(A) HAD HASTILY PASSED THE ORDER. IT WAS THEREFORE, PRAYED BY THE LEARNED AR THAT THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE LEARNED CIT (A) SO THAT HE MAY OBTAIN REMAND REPORT FROM THE LEARNED AO AND PA SS APPROPRIATE ORDER ON MERIT COMPLYING WITH THE PRINCIPLE OF NATU RAL JUSTICE. THE LEARNED DR COULD NOT CONTROVERT TO THE SUBMISSION O F THE LEARNED AR. 4. AFTER HEARING BOTH THE SIDES WE ARE OF THE CONSI DERED VIEW THAT AN OPPORTUNITY NEEDS TO BE GIVEN TO THE ASSESSEE TO PRESENT ITS CASE BEFORE THE LEARNED CIT(A) AFTER OBTAINING THE REMAN D REPORT FROM THE LEARNED AO. THEREFORE, IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF THE LEARNED CIT(A) SO TH AT HE SHALL OBTAIN THE REMAND REPORT FROM THE LEARNED AO AND AFTER CONSIDE RING THE WRITTEN SUBMISSION AND ARGUMENTS OF BOTH THE SIDES PASS APP ROPRIATE ORDER AS PER LAW AND ON MERITS 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02-07-2012 SD/- SD/- (G. C. GUPTA) VICE PRESIDENT (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT DEKA/- ITA NO.3116/AHD/2010 (AY 2007-08) SHRI UMANG H. THAKKAR, HUF VS ITO, W-9(1), AHMEDABA D 5 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 03-07-12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 03-07-12 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: