Shri Rohitkumar Mahendrabhai Doshi, Surat V. The Income tax Officer,Ward-8(4), Surat

ITA 3793/AHD/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0377 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 20-08-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 21-11-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: KK SHAH
• Keywords: Gross profit estimation; Set aside
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI D. C. AGRAWAL, ACCOUNTANT MEMBER ITA NO.3793/AHD/2008 ASSESSMENT YEA: 2005-06 DATE OF HEARING:20.8.09 DRAFTED:21.8.09 ROHITKUMAR MAHENDRABHAI DOSHI, 4/1353, KILLA DESAI KJHADKI, NR. JAIN DERASAR, KATARGAM, SURAT PAN NO.ACBPD2586M V/S . INCOME TAX OFFICER, WARD-8(4), SURAT (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI K.K. SHAH, AR RESPONDENT BY:- SHRI C.K. MISHRA, DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS), V, SURAT IN APPEAL NO. CAS-V/ 380/07-08 DATED 22-09-2008. THE ASSESSMENT WAS FRAMED BY THE ITO, WARD-8(4), SU RAT U/S.144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VI DE HIS ORDER DATED 06-12-2007 FOR THE ASSESSMENT YEAR 2005-06. 2. THE FIRST ISSUE IN THIS APPEAL OF THE ASSESSEE I S AS REGARDS TO THE ORDER OF CIT(A) IN CONFIRMING THE ADDITION MADE BY THE ASSES SING OFFICER ON ACCOUNT OF LOW GROSS PROFIT (GP) AMOUNTING TO RS.2,77,407/-. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THIS ISSUE, HENCE, THE SAME IS DISMISSED AS NOT PRESSED. ITA NO.1679/AHD/2009 A.Y. 2006-07 DCIT NAVSARI CIR V. SH. NAIMISH J CHOKSI PAGE 2 4. THE SECOND ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) IN CONFIRMING THE ADDITION MADE BY THE AO ON ACCOUN T OF OUTSTANDING CREDITORS FOR GOODS / EXPENSES AMOUNTING TO RS.91,28,850/- MADE U /S.68 OF THE ACT. 5. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE FIRS T OF ALL, STATED THAT ASSESSMENT WAS FRAMED U/S.144 OF THE ACT AND NO OPPORTUNITY WH ATSOEVER WAS PROVIDED TO THE ASSESSEE TO REPRESENT HIS CASE. LD. COUNSEL ACCORD INGLY STATED THAT THE ASSESSEE HAS NOT OBTAINED ANY LOAN FROM SUCH PARTIES WHICH C OULD BE VERIFIED FROM THE AUDIT REPORT. THE LD. COUNSEL ALSO STATED THAT IN THE FO RM 3CD THERE IS NO SUCH OUTSTANDING LOAN AND THERE IS NO DETAILS REGARDING ACCEPTED OR REPAYMENT OF SUCH LOAN. HE STATED THAT THE CREDITORS ARE ARISING OUT OF PURCHASES AND NO SUCH ADDITION ON ACCOUNT OF PURCHASES CAN BE MADE AND MOREOVER, H E STATED THAT CIT(A) BY APPLYING THE RULE 46A OF THE I.T. RULE, 1962, HAS N OT ACCEPTED THE PLEA OF THE ASSESSEE, WHEN THE ASSESSEE FILED COMPLETE DETAILS BEFORE CIT(A). THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS NOT REQUIRED ANY DETAILS IN RESPECT OF THESE CREDITORS ARISING OUT OF PURCHASES MADE BY THE ASSESSEE. AS THE EVIDENCES WERE FILED FOR THE FIRST TIME BEFORE THE CIT(A), THE ENTIRE ISSUE NEEDS RE- VERIFICATION AT THE LEVEL OF ASSESSING OFFICER. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS NOT OBJECTED FOR SETTING ASIDE T HIS ISSUE TO THE FILE OF AO IN ENTERITY WITHOUT ANY EMBARGO ON THIS ISSUE. IN VIE W OF THE ABOVE FACTS AND CIRCUMSTANCES, WITHOUT DELIBERATING ANYTHING ON MER ITS, WE SET ASIDE THIS ISSUE TO THE FILE OF ASSESSING OFFICER AND ASSESSING OFFICER IS DIRECTED TO LOOK INTO THE EVIDENCE FILED BY THE ASSESSEE IN RESPECT OF THESE CREDITORS , WHETHER THESE PERTAINS TO PURCHASE PARTIES OR CASH CREDITS. IN CASE THESE PER TAINS TO PURCHASE PARTIES OR CASH CREDITS, THE ASSESSING OFFICER WILL ENQUIRE INTO TH E ISSUE AND DECIDE ON MERITS. ACCORDINGLY, WE SET ASIDE THIS ISSUE TO THE FILE OF AO AS INDICATED ABOVE. 6. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 09/10/2009 SD/- SD/- (D.C.AGRAWAL) (MAHAV IR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, ITA NO.1679/AHD/2009 A.Y. 2006-07 DCIT NAVSARI CIR V. SH. NAIMISH J CHOKSI PAGE 3 DATED : 09/10/2009 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- VALSAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD