Shri Rasiklal K. Darji, Ahmedabad V. The Income tax Officer, Ahmedabad

ITA 380/AHD/2004

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5860 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 06-07-2010
• Assessment Year: 1995-1996
• Appeal Filed On: 11-02-2004
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHELLY JINDAL
• Assessee Lawyers: S N DEVETIA
• Keywords: Unexplained investment; Set aside
• Section: 133A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND A. N. PAHUJA, AM) ITA NO.380/AHD/2004 A. Y.: 1995-96 RASHIKLAL K. DARJI, C/O. ANIL SHOW ROOM, 71, HARI VALLABH SOC., NR. DEVI MULTIPLEX, NARODA AHMEDABAD VS THE INCOME TAX OFFICER, WARD- 2 (5), AHMEDABAD PAN/GIR NO. 31-117-PX-2360 (APPELLANT) (RESPONDENT) APPELLANT BY SHRI S. N. DEVETIA, AR RESPONDENT BY SHRI SHELLY JINDAL, DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX , AHMEDABAD-I, AHMEDABAD DATED 08-01-2004 U/S 263 OF THE IT ACT FO R ASSESSMENT YEAR 1995-96. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT IN THIS CASE SURVEY U/S 133A OF THE IT ACT WAS CARRIED OUT ON 19-8-1994 DURING W HICH EXCESS STOCK OF RS.8,86,348/- WAS FOUND. THE ASSESSEE CLAIMED THAT STOCK WORTH OF RS.7,00,000/- WAS BELONGING TO 3 FIRMS OF THE GROUP NAMELY ANIL SHOW ROOM RS.2,50,000/-, ANIL TAILORS RS.2,50,000/- AND PARTH CORPORATION RS.2,00,000/-. REMAINING STOCK OF RS.1,86,000/- WAS ACCEPTED AS BELONGING TO THE ASSESSEE. ASSESSMENT ORDER U/S 143 (3) WAS PASSED ON 31-03-1998, THE AO MADE ADDITION OF RS.1,86,000/- O N ACCOUNT OF UNEXPLAINED INVESTMENT IN STOCK. FURTHER, ADDITION OF RS.7,00,000/- WAS MADE ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESS EE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN STOCK. THE LEARNED CIT(A) IN THE APPELLATE ITA NO. 380/AHD/2004 RASHIKLAL K. DARJI, AHMEDABAD VS ITO 2(5), AHMEDABA D 2 ORDER HELD THAT STOCK WORTH RS.2,50,000/- WHICH WAS CLAIMED TO BE BELONGING TO ANIL TAILOR ACTUALLY BELONGED TO THE A SSESSEE. DIRECTION WAS ISSUED TO MAKE THE ADDITION ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE OF THE AFORESAID AMOUNT. THE ASSESSEE PREF ERRED APPEAL BEFORE THE TRIBUNAL WHO RESTORED THE MATTER TO THE FILE OF THE AO FOR DECISION AFRESH. THE AO FINALIZED THE ASSESSMENT U/S 143(3)/ 254 OF THE IT ACT ON 08-03-2002 WHEREIN HE ACCEPTED THE SHORTAGE OF THE STOCK TO THE EXTENT OF RS.2,51,782/- AND TREATED IT AS UNACCOUNTED SALE S. PROFIT @ 15% WAS CALCULATED AND ADDITION OF RS.37,767/- WAS MADE. TH E LEARNED COMMISSIONER NOTED THAT THE ORDER NOW PASSED BY THE AO WAS AGAINST DIRECTION OF THE TRIBUNAL; THEREFORE, IT WAS ERRONE OUS IN SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF THE REVENUE. AFTER G IVING SHOW CAUSE NOTICE U/S 263 OF THE IT ACT WITH REGARD TO ADDITION OF RS .2,50,000/- PERTAINING TO AIL TAILORS, THE LEARNED COMMISSIONER SET ASIDE THE ORDER OF THE AO U/S 143(3)/254 OF THE IT ACT AND DIRECTED TO PASS T HE ORDER AFRESH IN ACCORDANCE WITH LAW. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE AO AGAIN MADE ADDITION OF RS.2,50,000/- AND THE LEARNED CIT( A) CONFIRMED THE SAME ADDITION AGAINST WHICH THE ASSESSEE FURTHER PR EFERRED APPEAL BEFORE THE TRIBUNAL WHICH IS UNDER CONSIDERATION IN ITA NO .40/AHD/2006. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SIN CE THE QUANTUM APPEAL IS PENDING BEFORE THE TRIBUNAL AGAINST THE O RDER PASSED U/S 143(3)/263 OF THE IT ACT ON THE SAME MATTER IN ISSU E, THEREFORE, HE WOULD NOT BE PRESSING THE PRESENT APPEAL AGAINST THE ORDE R U/S 263 IT THE IT ACT. 4. CONSIDERING THE ABOVE FACTS AND SUBMISSIONS OF T HE LEARNED COUNSEL FOR THE ASSESSEE, THE APPEAL OF THE ASSESSE E IS DISMISSED AS WITHDRAWN. THE ASSESSEE IS AT LIBERTY TO RAISE ALL CONTENTIONS ON MERIT ON ITA NO. 380/AHD/2004 RASHIKLAL K. DARJI, AHMEDABAD VS ITO 2(5), AHMEDABA D 3 QUANTUM APPEAL IN ITA NO.40/AHD/2006. WITH THE ABOV E OBSERVATION, THE APPEAL OF THE ASSESSEE IS DISMISSED AS WITHDRAW N. 5. AS A RESULT, APPEAL OF THE ASSESSEE IS DISMISSED AS WITHDRAWN. ORDER PRONOUNCED ON 06-07-2010. SD/- SD/- (A. N. PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 06-07-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD