I.T.O.-6(1), Jhansi V. Jhansi Development Authority, Jhansi

ITA 347/AGR/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7687 (ITAT-AGRA)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-04-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 09-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SOHAIL AKHTAR
• Assessee Lawyers: R K AGARWAL
• Keywords: Opportunity of being heard
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.347/AGRA/2011 ASSTT. YEAR : 2005-06 INCOME-TAX OFFICER, VS. JHANSI DEVELOPMENT AUTHO RITY, 6(1), JHANSI. OLD VIKAS BHAWAN, JHANSI. (PAN : ABUPS 8611 G) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SOHAIL AKHTAR, JR. D.R. RESPONDENT BY : SHRI R.K. AGARWAL, ADVOCATE DATE OF HEARING : 17.04.2012 DATE OF PRONOUNCEMENT OF ORDER : 20.04.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-II, AGRA DATED 24.05.2011 FOR THE ASSESSMENT YEAR 2005- 06, CHALLENGING THE IMPUGNED ORDER IN ALLOWING THE RELIEF OF RS.35,93,335/- IGNO RING THE FACT THAT THE ASSESSEE ITSELF HAD DECLARED 10% PROFIT ON THE AMOUNT OF WOR K SALES AND REGISTRATION MONEY. 2. THE AO MADE ADDITION OF RS.42,62,946/- ON ACCOUN T OF ESTIMATED PROFIT BY APPLYING THE PROFIT RATE OF 10% AGAINST THE RECEIPT S. ADDITION WAS CHALLENGED BEFORE THE LD. CIT(A) AND WRITTEN SUBMISSIONS OF TH E ASSESSEE IS REPRODUCED IN THE APPELLATE ORDER AND THE LD. CIT(A) FOLLOWING THE OR DER OF HIS COLLEAGUE CONFIRMED ITA NO.347/AGRA/2011 2 THE ADDITION OF RS.6,69,611/- OUT OF THE ADDITION M ADE BY THE AO AND ALLOWED THE APPEAL OF THE ASSESSEE PARTLY. 3. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-06 HAS BEEN S EPARATELY DECIDED BY THE TRIBUNAL VIDE ORDER DATED 23.11.2011 IN ITA NO. 282 /AGRA/2011 IN WHICH THE TRIBUNAL ADMITTED THE ADDITIONAL GROUND IN WHICH TH E ASSESSEE CLAIMED INCOME OF THE ASSESSEE EXEMPT U/S. 12A OF THE IT ACT. ACCORDI NGLY, THE TRIBUNAL RESTORED THE ISSUE OF EXEMPTED INCOME TO THE FILE OF LD. CIT(A) FOR DECIDING THE SAME AS PER LAW. THE COPY OF THE ORDER IS PLACED ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE AS WELL AS THE LD. DR, THEREFORE, SUBMITTED THAT THE M ATTER MAY BE REMANDED BACK TO THE FILE OF LD. CIT(A) FOR ADJUDICATING THE ISSUE A FRESH. THE MATTER IS ALREADY PENDING BEFORE THE LD. CIT(A) FOR ADJUDICATION AS P ER DECISION IN THE APPEAL OF THE ASSESSEE. 4. ON CONSIDERATION OF THE SUBMISSIONS OF THE PARTI ES AND IN THE LIGHT OF THE ORDER OF THE TRIBUNAL DATED 23.11.2011 IN THE CASE OF THE SAME ASSESSEE (SUPRA), WE FIND IT NECESSARY TO RESTORE THE ISSUE RAISED IN TH E APPEAL TO THE FILE OF THE LD. CIT(A) BECAUSE THE TRIBUNAL HAS RESTORED THE ISSUE OF EXEMPTED INCOME OF THE ASSESSEE U/S. 12A TO THE FILE OF LD. CIT(A) AND IT IS DESIRABLE THAT THE ISSUE UNDER ITA NO.347/AGRA/2011 3 CONSIDERATION BE DECIDED TOGETHER WHILE CONSIDERING THE ADDITIONAL GROUND RESTORED TO THE FILE OF LD. CIT(A). WE MAY NOTE HERE THAT IT IS THE DUTY OF THE PARTY TO INTIMATE THE TRIBUNAL EARLIER ABOUT THE PENDENCY OF THE DEPARTMENTAL APPEAL WHEN THE ASSESSEES APPEAL WAS DISPOSED OF SO THAT BOTH THE CROSS APPEALS SHOULD HAVE BEEN DECIDED TOGETHER. WE, ACCORDINGLY, SET ASIDE T HE ORDER OF THE LD. CIT(A) AND RESTORE THE ISSUE TO THE FILE OF LD. CIT(A) WITH TH E DIRECTION TO RE-DECIDE THE APPEAL ALONGWITH ADDITIONAL GROUND OF APPEAL RESTORED TO H IM BY THE TRIBUNAL IN APPEAL OF THE ASSESSEE FOR THE SAME ASSESSMENT YEAR. THE LD. CIT(A) SHALL GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE DEPARTMENTAL APPEAL IS ALLOWE D FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY