SHRI R K MEHTA, V. THE ITO, WD-2(2),

ITA 361/RJT/1999

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0185 (ITAT-RAJKOT)
• Duration Of Justice: 12 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-09-2012
• Assessment Year: misc
• Appeal Filed On: 16-11-1999
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANKUR GARG
• Assessee Lawyers: IN PERSON
• Keywords: Difference of opinion

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAV A, AM ITA NO.361/RJT/1999. / ASSESSMENT YEAR 1984-85 SHRI R.K.MEHTA, 29, KARANPARA, KRISHNA NIWAS RAJKOT. PAN:ITO, WARD 2(2), RAJKOT ( * / APPELLANT) VS. THE INCOME TAX OFFICER WARD 2(2), RAJKOT-GUJARAT +,* / RESPONDENT -. / ASSESSEE BY ASSESSEE IN PERSON . / REVENUE BY SHRI. ANKUR GARG . / DATE OF HEARING 26.9.2012 . / DATE OF PRONOUNCEMENT 28.09.2012 / / / / ORDER UNDER SECTION 255(4) OF THE INCOME TAX ACT 19 61 . .. . . . . . , , , , / T. K. SHARMA, J. M. ON ACCOUNT OF DIFFERENCE OF OPINION BETWEEN THE MEMBERS CONSTITUTING THE REGULAR BENCH, FOLLOWING THREE QUESTIONS WERE REFERRED FOR CONSIDERATI ON OF THE THIRD MEMBER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND MATERIAL ON RECORD THE ADDITION OF RS.40,400/- MADE BY THE AO ON ACCOUNT OF INVESTMENT IN HOUSEHOLD EXPENSE SHOULD BE DELETED OR RESTRICTED TO RS.30,000/- 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE ADDITION OF RS.2,60,000/- IN PROPRIETARY BUSINESS NAMELY; M/S ASSOCIATED APPARELS WHICH WAS SET UP BY THE ASSESSEE BY ITA NO.361/RJT/1999.(TM) 2 REPRESENTING HIMSELF BEFORE CONCERNED AUTHORITY AS R.P. PANDYA SHOULD BE DELETED OR SET ASIDE TO THE FILE OF AO FOR ASCERTAINING ACTUAL AMOUNT OF INVESTMENT IN SHED AND MACHINERY ETC. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE ADDITION MADE BY THE AO ON ACCOUNT OF ESTIMATION OF PROFIT FROM BUSINESS RS.7,20,000/- ESTIMATION VALUE OF GOODS IMPOR TED RS.4,75,500/- AND ESTIMATED PROFIT FROM THE VALUE OF SHORTAGE OF GOODS OF RS.1,26,900/- BE DELETED OR CONFIRM SUBJECT TO REMANDING IT TO THE FILE OF THE AO FOR EXAMINING AND ALLOWI NG THE BENEFIT OF TELESCOPING IN ACCORDANCE WITH LAW. THE HONBLE ZONAL VICE-PRESIDENT SITTING AS THIRD MEMB ER, VIDE HIS ORDER DATED 5.9.2012 EXPRESSED HIS OPINION ON THE AFORESAI D QUESTIONS AS UNDER : I) IN RESPECT OF QUESTION NO.1, THE LD..THIRD MEMBER AGREED WITH LD. JM THAT THE ADDITION OF RS.40400/- IN RESPE CT OF INVESTMENT IN HOUSEHOLD EXPENSES SHOULD BE RESTRICTED TO RS.30,000 /-; II) WITH REGARD TO QUESTION NO.2, THE LD. THIRD MEM BER AGREED WITH THE VIEW OF THE LD. AM THAT THE ADDITION OF RS.2,60,000/- IN RESPECT OF PROPRIETARY BUSINESS NAMELY; M/S ASSOCIATED APPAR ELS SHOULD BE DELETED. III) IN RESPECT OF THIRD POINT OF DIFFERENCE, THE LD. THIRD MEMBER AGREED WITH THE VIEW OF LD. JUDICIAL MEMBER THAT THE ADDITION OF RS.7,20,000/- MADE, BE CONFIRMED AND OTHER TWO ADDI TIONS I.E. RS..4,75,500/- BEING ESTIMATED VALUE OF GOODS IMPOR TED AND RS.1,26,900/- ESTIMATED PROFIT FROM THE VALUE OF SHOR TAGE OF GOODS, INSTEAD OF REMITTING TO THE FILE OF THE AO BE DELET ED BY ALLOWING THE BENEFIT OF TELESCOPING. 4. IN ORDER TO PASS CONSEQUENTIAL ORDER AS PER MAJORIT Y VIEW, THIS APPEAL WAS FIXED FOR HEARING ON 26.9.2012. ON THAT THE DATE, THE ITA NO.361/RJT/1999.(TM) 3 ASSESSEE HIMSELF APPEARED AND STARTED REARGUING HIS CASE AFRESH. THE ASSESSEE CONTENDED THAT SINCE THERE ARE TWO POSSIBLE VIEWS I.E. ONE OF JM AND ANOTHER OF AM, THE VIEW FAVOURABLE TO THE ASSESS EE BE ACCEPTED AS PER THE DECISION OF THE HONBLE SUPREME COURT IN T HE CASE OF CIT V/S VEGETABLE PRODUCTS LTD.(1973) 88 ITR 192 (SC). ON THE CONTRARY, SHRI ANKUR GARG, THE LD. DR POINTED OUT THAT WHILE PASSING THE ORDER U/S 255(4) OF THE INCOME-TAX ACT, THE TRIBUNAL HAS NO POWER TO REHEAR THE ENTIRE APPEAL, HE ACCORDINGLY SUGGESTED THAT THE TRIBUNAL MAY PASS THE ORDER AS PER OPINION OF MAJORITY OF MEMBERS AS PROVIDED IN SUB-SECTION (4) OF SECTION 255 OF THE INCOME-TAX ACT.. 5. WE AGREE WITH THE LD. DR. AS PER MAJORITY VIEW, T HE APPEAL OF THE ASSESSEE IS DECIDED AS UNDER : A) GROUND NO.1 IS GENERAL IN NATURE, THEREFORE, NEED S NO ADJUDICATION. B) GROUND NO.2 IS REJECTED. C) THE ADDITION MADE BY THE AO IN RESPECT IN-HOUSE HOL D EXPENSES OF RS.40,400/- IS REDUCED TO R.30,000/-. D) THE ADDITION OF RS.2,60,000/- BEING ALLEGED INVE STMENT IN PROPRIETARY BUSINESS IS DELETED. E) THE ESTIMATED VALUE OF GOODS IMPORTED OF RS.4,75,00 0/- AND ESTIMATED PROFIT FROM VALUE OF GOODS AMOUNTING TO RS. 1,26,900/- IS DELETED BY ALLOWING THE BENEFIT OF TELESCOPING . F) GROUND NO.4 IS DECIDED AGAINST THE ASSESSEE, THEREFORE, DISMISSED. G) GROUND NO.5 IS DISMISSED. TO SUMMARISE, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWE D. ITA NO.361/RJT/1999.(TM) 4 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED HEREINABOVE. SD/- SD/- ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE 28- 09-2012. /RAJKOT SRL . .. . +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT-, 2. +,* / RESPONDENT- 3. : / CONCERNED CIT. 4. :- / CIT (A). 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY. SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.