Bipin Silk Mills Pvt.Ltd., Surat V. The Income tax Officer,Ward-1(2), Surat

ITA 3978/AHD/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9364 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 12-08-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 08-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Keywords: Additional evidence; Set aside
• Section: 201

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, D - BENCH,AHMEDABAD . BEFORE : SHRI T.K.SHARMA, JUDICIAL MEMBER , AND SHRI N.S.SAINI, ACCOU NTANT MEMBER. ITA NO. 3978/AHD/2008 (ASSESSMENT YEAR 2004 - 05) BIPIN SILK MILLS PVT. LTD, C/O. 10C, KUNTHUNATH TOWER, NR. SA RGAM SHOPPING COMPLEX, PARLE LPOINT, SURAT 395001. VERSUS THE INCOME - TAX OFFICER, WARD 1(2), SURAT. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI HARDIK VORA, AR FOR THE RESPONDENT SHRI C.K.MISHRA, DR ORDER SHRI T.K.SHARMA, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DT.18.9.2008 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) I, SURAT FOR THE ASSESSMENT YEAR 2004 - 05, RAISING THE FOLLOWING GROUNDS OF APPEAL. 1. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING AND THE LEARNED ASSESSING OFFICER HAS ERRED IN REJECTING THE APPELLANTS BOOKS OF ACCOUNT BY CREATING THE ILLUSION OF NON - COMPLIANCE BY THE APPELLANT INSPITE OF UTMOST COOPERATION & FURNISHING OF SUBSTANTIAL DETAILS BY THE APPELLANT. 2. THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING & THE LEARNED A.O. HAS GROSSLY ERRED IN MAKING THE ADDITION OF RS.2679796 FOR SO CALLED LOW G.P. IGNORING FACTS OF THE SHARP DECLINE IN APPELLANTS TURNOVER & COMPLETE CLOSURE OF FACTORY ONCE FOR ALL. 3. THE LEARNED CIT(A) H AS ERRED IN CONFIRMING THE DISALLOWANCE OF PACKING EXPENSES OF RS.3 LAKHS IGNORING THE FACT OF ERRONEOUS COMPARISON BY THE LEARNED A.O. WITH TOTAL TURNOVER INSTEAD OF PRODUCTION IN KG., AND ALSO THE FACT OF OFF AND ON CLOSURE OF FACTORY LEADING TO RISE IN COSTS. 4. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER OR AMEND PRESENT GROUNDS OF APPEAL. 2. AT THE TIME OF HEARING ON BEHA LF OF THE ASSESSEE SHRI HA RDIK VORA, LEARNED AR OF THE ASSESSEE APPEARED AND CONTENDED THAT THE ASSESSING OFFICER FRAMED THE ASSES SMENT U/S.143(3) OF THE INCOME - TAX ACT, 1961. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT FOR THE ASSESSMENT YEAR UNDER APPEAL 2 THE ASSESSEE HAS DECLARED TOTAL LOSS OF RS.37,55,758. ITS BOOKS OF ACCOUNT ARE AUDITED U/S.44AB. HE POINTED OUT THAT BEFOR E THE LEARNED CIT(A) THE ASSESSEE HAS FILED COMPLETE DETAILS IN SHAPE OF PAPER BOOK THOSE REQUIRED BY THE ASSESSING OFFICER RUNNING INTO 176 PAGES. THE LEARNED CIT(A) FORWARDED THE SAID PAPER BOOK TO THE ASSESSING OFFICER REQUIRING HIM TO GIVE HIS REMAND R EPORT ON THE ADDITIONAL EVIDENCE FILED BEFORE HIM. THE ASSESSING OFFICER, IN THE REMAND REPORT, WITHOUT EXAMINING THE SAME STATE THAT NO FURTHER DETAILS WERE FILED. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT NO FURTHER DETAIL WERE CALLED BY THE ASS ESSING OFFICER. EVEN THE VARIOUS DETAILS SUBMITTED RUNNING INTO 176 PAGES IN THE PAPER BOOK WERE ALSO NOT EXAMINED BY THE ASSESSING OFFICER BEFORE SENDING THE REMAND REPORT. THE POWER OF THE CIT(A) IS COTERMINOUS WITH THAT OF THE ASSESSING OFFICER. DESPITE THIS, THE LEARNED CIT(A) ALSO DID NOT EXAMINE VARIOUS DETAILS AND CONFIRMED THE ASSESSMENT. THE LEARNED COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT ALL THE DETAILS, WHATEVER IS REQUIRED, CAN BE FILED BY THE ASSESSEE AND THE BOOKS OF ACCOUNT WOULD ALSO BE PRODUCED, IF AN OPPORTUNITY IS GRANTED. THEREFORE, HE SUGGESTED THAT THE MATTER BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR THE SAID PURPOSE. THE LEARNED DR SHRI C.K.MISHRA, ON THE OTHER HAND, SUPPORTED THE IMPUGNED ORDERS OF THE AUTHORITI ES BELOW. 3. HAVING HEARD BOTH SIDES, WE HAVE CAREFULLY GONE THROUGH THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT BEFORE THE LEARNED CIT(A) THE ASSESSEE HAS FILED THE DETAILS IN SHAPE OF PAPER BOOK. THE SAME WERE FORWARDED TO THE ASSESSING OFFICER. NEITHER THE ASSESSING OFFICER NOR THE LEARNED CIT(A) EXAMINED ALL SUCH DETAILS. LAW IS WELL SETTLED THAT CIT(A) HAS PLENARY POWERS IN DISPOSING OF AN APPEAL. THE SCOPE OF HIS POWER IS CO - TERMINUS WITH THAT OF THE ITO. HE CAN DO WHAT THE ITO CAN DO AND ALSO DIRECT HIM TO DO WHAT HE HAS FAILED TO DO [ SEE - CIT V. KANPUR COAL SYNDICATE [1 964] 53 ITR 225 (SC) , DCIT V. MAHIVALLEY HOTELS & RESORTS 201 CTR 308 (GUJ) ]. THE LEARNED AR OF THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE WILL PRODUCE THE BOOKS OF ACCOUNTS AND ANY OTHER DETAILS AS MAY BE CALLED FOR BY THE ASSESSING OFFICER, IF ANOTHER OPPORTUNITY IS ALLOWED. IN VIEW OF THE ABOVE, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND RESTORE THE CASE BACK TO 3 THE FILE OF THE ASSESSING OFFICER FOR PASSING THE DE NOVO AFTER EXAMINING THE BOOKS OF ACCOUNTS AND ALL THE DETAILS, GI VING PROPER OPPORTUNITY TO THE ASSESSEE . 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE SHALL BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT.. 21.8.09 SD/ - SD/ - ( N.S.SAINI) ACCOUNTANT MEMBER. (T.K.SHARMA) JUDICIAL MEMBER DATE: 21.8.09 (H.K.PADHEE) SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE CIT CONCERNED. 4. THE CIT(A) CONCERNED. 5. THE DR, AHMEDABAD 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, DEPUTY.REGISTRAR.