The ITO, Ward-2, Anand V. M/s. Lopaj Chemicals, Anand

ITA 3258/AHD/2010

• Counselvise Citation: 325820514 RSA 2010
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-11-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 09-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A L THAKKAR
• Keywords: Additional evidence
• Section: 68

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH .. , !' !' !' !', , , , #$ #.%.&'( , %) * % ' % ' % ' % ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND A.K. GARODIA, ACCOUNTANT MEMBER) ITA NO.3258/AHD/2010 [ASSTT.YEAR : 2005-06] ITO, WARD-2 ANAND. /VS. M/S.LOPAJ CHEMICALS 704/5, PHASE-IV GIDC ESTATE V.U.NAGAR 388 121. PAN : AAAFL 8522 E ( (( (,- ,- ,- ,- / APPELLANT) ( (( (. .. ./,- /,- /,- /,- / RESPONDENT) * 0 1 %/ REVENUE BY : SHRI SAMIR TEKRIWAL 34 0 1 %/ ASSESSEE BY : SHRI A.L. THAKKAR 5 0 46)/ DATE OF HEARING : 18 TH NOVEMBER, 2011 7&8 0 46)/ DATE OF PRONOUNCEMENT : 2 ND DECEMBER, 2011 %9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL OF THE REVENUE FOR THE A.Y.2005-2006 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-VI, AHMEDABAD DATED 19.10.2010. 2. THE ONLY GROUND RAISED IN THIS APPEAL READS AS U NDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) ERRED IN DELETING THE ADDITION OF RS.21,19,185/- MA DE U/S.68 OF THE ACT WITHOUT GIVING AN OPPORTUNITY TO THE AO FOR EXAMINI NG THE FRESH DOCUMENTS/DETAILS FURNISHED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS, AS MANDATED UNDER SUB-RULE (3) OF RULE 46A OF THE INCOME TAX RULES. 3. THE LEARNED DR SUBMITTED THAT IT IS A CLEAR CASE OF VIOLATION OF RULE 46A (3) OF THE I.T. RULES AS THE ASSESSEE HAD FILED CER TAIN EVIDENCES BEFORE THE CIT(A) AFTER THE SUBMISSION OF THE REMAND REPORT BY THE AO. HE SUBMITTED ITA NO.3258/AHD/2010 -2- THAT THE CIT(A) SHOULD HAVE PROVIDED OPPORTUNITY TO THE AO TO REBUT OR MAKE HIS COMMENT ON THE ADDITIONAL EVIDENCES FILED AFTER THE SUBMISSIONS OF THE REMAND REPORT BY HIM. HE SUBMITTED THAT IT SHALL B E IN THE INTEREST OF THE JUSTICE TO SET ASIDE THE ISSUE WITH DIRECTION TO PROVIDE TH E AO AN OPPORTUNITY TO REPLY WITH REGARD TO THE ADDITIONAL EVIDENCES FILED BY TH E ASSESSEE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT ALL THE EVIDENCES WERE FILED BEFORE THE AO AS WELL AS THE CIT(A) AND THE AO HAS FAILED TO APPRECIATE THE SAME IN PROPER PROSPECTIVE. HE SUBM ITTED THAT THE COPIES OF THE ACCOUNTS OF THE DEPOSITORS DULY CONFIRMED WITH PAN WERE FILED BEFORE THE AO. THE CIT(A) HAS ASKED FOR REMAND REPORT FROM THE AO AND THE AO HAS FILED HIS REMAND REPORT IN COMPLIANCE TO THE DIRECTIVE OF THE CIT(A). HE SUBMITTED THAT IN THE REMAND REPORT THE AO HAS MADE COMMENT THAT N O COPY OF THE ACCOUNTS OF THE RESPECTIVE PARTIES WERE FILED IN ORDER TO RECON CILE THE SAME AND ALSO TO PROVE THE IDENTITY OF THE PERSONS, GENUINENESS OF THE TRA NSACTION AND CREDIT WORTHINESS OF THE DEPOSITORS. THE AO HAS FURTHER MENTIONED IN HIS REMAND REPORT THAT IN THE BALANCE SHEET OF M/S.JALPA STEEL TRADERS AND JA Y METAL CORPORATION FOR THE A.Y.2005-2006 NO AMOUNT OF LOAN/DEPOSIT WAS GIVEN I N THE NAME OF THE ASSESSEE UNDER THE HEAD LOANS AND ADVANCES. TH E LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT WAS DUE TO THIS COMMENT MADE BY THE AO IN HIS REMAND REPORT THAT THE ASSESSEE FILED COPY OF THE B ALANCE SHEET OF M/S.JAY METAL CORPORATION AND JALPA STEEL TRADERS SO AS TO BRING OUT THE TRUTH THAT THERE WAS NO DISCREPANCY BETWEEN THE ACCOUNTS OF THE ASSESSEE AS WELL AS CREDITOR PARTIES. HE SUBMITTED THAT THERE IS NO VIOLATION OF RULE 46A OF THE I.T.RULES IN THIS CASE. 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE GO NE THROUGH THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE CIT(A) HAS RECORDED THAT THE ASSESSEE HAS SUBMITTED COPY OF THE ACCOUNT OF DEPOS ITORS DULY CONFIRMED WITH THEIR PAN NOS. BEFORE THE AO. THE CIT(A) ASKED THE AO TO FILE HIS REMAND REPORT AND THE AO HAS IN COMPLIANCE THERETO FILED T HE REMAND REPORT WHEREIN IT ITA NO.3258/AHD/2010 -3- WAS MENTIONED THAT IN THE BALANCE SHEET OF M/S.JALP A STEEL TRADERS AND JAY METAL CORPORATION FOR THE A.Y.2005-2006, THERE WAS NO AMOUNT OF LOAN IN THE NAME OF THE ASSESSEE-COMPANY UNDER THE HEAD LOANS AND ADVANCES. THE ASSESSEE FILED BALANCE-SHEET OF THE PARTIES BEFORE THE CIT(A) WHICH WAS VERIFIED BY THE CIT(A) AND THE CIT(A) HAS RECORDED THAT IT TALLIED EXACTLY WITH THE PARTIES BANK STATEMENTS AND ACCORDINGLY IT COU LD NOT BE SAID THAT THERE WAS VIOLATION OF PROVISION OF RULE 46A(3) OF THE I.T. R ULES. THE INITIAL ONUS ON THE ASSESSEE TO PROVE THE IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDIT WORTHINESS OF THE DEPOSITORS STAND DISCHARGED IN TH IS CASE. THE CREDITORS ARE ASSESSED TO TAX AND THEIR BALANCES TALLIED WITH THE BANK STATEMENTS AND WERE DULY CONFIRMED BY THE PARTIES, AND ACCORDINGLY, WE HOLD THAT THE CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE UNDER SECTION 68 OF THE I.T.ACT AND THE GROUND NO.1 OF THE REVENUE BEING WITHOUT ANY MERIT IS REJECTED. 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( #.%.&'( /A.K. GARODIA) %) * /ACCOUNTANT MEMBER ( .. /G.C. GUPTA ) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD