Harsh Filaments Pvt.Ltd., Surat V. The Income tax Officer,Ward-1(2), Surat

ITA 3268/AHD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60503 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 10-05-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 27-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: RASHESH B SHAH
• Keywords: Opportunity of being heard
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO. 3268/ AHD/2011 (ASSESSMENT YEAR 2005-06) M/S. HARSH FILAMENTS PVT. LTD., 3033, JASH TEXTILE & YARN MARKET, RING ROAD, SURAT. VS. ITO, WARD 1(2), SURAT PAN/GIR NO. : AABCH1278F (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI RASHESH B SHAH, AR RESPONDENT BY: SHRI B L YADAV, SR. DR DATE OF HEARING: 10.05.2012 DATE OF PRONOUNCEMENT: 15.06.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) I, SURAT DATED 13.092011 FOR THE ASSESSMENT YEAR 2004- 05. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFF ICER IN REOPENING ASSESSMENT U/S 148 OF THE ACT & THEREBY ERRED IN FR AMING ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFF ICER IN MAKING AN ADDITION OF RS.37,21,000/- ON ACCOUNT OF ALLEGED UN EXPLAINED INVESTMENT IN STOCK. 3. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITIO N AND ABOVE ACTION MADE BY ASSESSING OFFICER AND CONFIRMED BY LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) MAY PLEASE BE DELETED. I.T.A.NO. 3268 /AHD/2011 2 2. GROUND NO.1 WAS NOT PRESSED BY THE LD. A.R. AND ACCORDINGLY REJECTED AS NOT PRESSED. 3. REGARDING GROUND NO.2, BRIEF FACTS ARE THAT THE A.O. MADE ADDITION OF RS.33.71 LACS ON ACCOUNT OF DIFFERENCE BETWEEN T HE VALUE OF STOCK SHOWN IN THE BALANCE SHEET AND DECLARED TO THE BANK AND FURTHER ADDITION OF RS.3.50 LACS WAS MADE BY THE A.O. REGARDING EXCI SE DUTY COMPONENT TOTALING RS.37.21 LACS. IT WAS THE SUBMISSION OF T HE ASSESSEE BEFORE THE A.O. VIDE LETTER DAD 24.10.2010 THAT THERE IS NO DI FFERENCE IN QUANTITY OF STOCK AS SUBMITTED TO THE BANK AND DISCLOSED IN THE BALANCE SHEET AND NO ADDITION ON ACCOUNT OF EXCISE DUTY CAN BE MADE AS I T HAS ALREADY BEEN MADE IN THE ASSESSMENT ORDER PASSED ON 05.1.2007. THE SAME CONTENTIONS WERE RAISED BEFORE LD. CIT(A) BUT HE CONFIRMED THE ASSESSMENT ORDER BECAUSE THE ASSESSEE COULD NOT SUBSTANTIATE THE CON TENTION THAT THERE IS NO QUANTITY DIFFERENCE. NOW, THE ASSESSEE IS IN APPEA L BEFORE US. 4. IT WAS SUBMITTED BY THE LD. A.R. BEFORE US THAT THIS ISSUE IS NOW COVERED BY THE JUDGEMENT OF HONBLE SUPREME COURT R ENDERED IN THE CASE OF CIT VS KELVINATOR INDIA LTD. AS REPORTED IN 320 ITR 561. AS AGAINST THIS, IT IS SUBMITTED BY THE LD. D.R. THAT THE MATT ER SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGEMENT OF HONBLE APEX COURT CITED BY THE LD. A. R. SINCE T HE LD. A.R. OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 1 REGARDING REOPENING, THIS JUDGMENT OF HONBLE APEX COURT REND ERED IN THE CASE OF CIT VS KELVINATOR INDIA LTD. (SUPRA), IS NOT APPLIC ABLE IN THE PRESENT CASE. 6. REGARDING MERITS OF THE ADDITION MADE BY THE A.O ., WE FIND THAT AS PER THE CHART NOTED BY LD. CIT(A) ON PAGE 4 OF HIS ORDER, HE HAS CONSIDERED DIFFERENCE IN VALUE OF STOCK AS PER BALA NCE SHEET AND STOCK STATEMENT GIVEN TO THE BANK AND THERE IS NO DISCUSS ION AS TO WHAT WAS THE I.T.A.NO. 3268 /AHD/2011 3 BASIS OF VALUATION FOR THE PURPOSE OF BALANCE SHEET AND WHAT WAS THE BASIS OF VALUATION OF STOCK STATEMENT GIVEN TO THE BANK A ND WHETHER THIS CONTENTION OF THE ASSESSEE IS FACTUALLY CORRECT AND THERE IS NO DIFFERENCE IN THE QUANTITY OF STOCK. NO FINDING IS GIVEN BY THE AUTHORITIES BELOW ON THESE ASPECTS. THERE IS NO FINDING ON THIS ASPECT ALSO THAT WHETHER ANY ADDITION MADE WAS IN RESPECT OF EXCISE DUTY ON CLOS ING STOCK IN THE ORIGINAL ASSESSMENT ORDER PASSED BY THE A.O. ON 05. 11.2007 AS HAS BEEN CONTENDED BY THE ASSESSEE IN THE LETTER DATED 24.12 .2010. UNDER THESE FACTS, WE FEEL THAT IN THE INTEREST OF JUSTICE, THI S MATTER SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AFTER EXA MINING THE BASIS OF VALUATION AS PER BALANCE SHEET AND AS PER STOCK STA TEMENT GIVEN TO THE BANK AND AFTER FINDING OUT AS TO WHETHER THERE IS A NY DIFFERENCE IN THE QUANTITY OR NOT AND AFTER ALSO FINDING OUT AS TO WH ETHER ANY ADDITION WAS MADE IN THE ORIGINAL ASSESSMENT ORDER IN RESPECT OF EXCISE DUTY ONCLOSING STOCK. THE A.O. SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . GROUND NO.2 IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 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 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 I.T.A.NO. 3268 /AHD/2011 4 1. DATE OF DICTATION 13/6 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 14/6.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 15/6 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.15/6 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15/6/12 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. .