Yash Organizers Pvt. Ltd., Ahmedabad V. The Dy.CIT, Circle-8, Ahmedabad

ITA 413/AHD/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8332 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 26-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH SINGH
• Assessee Lawyers: S N DIVETIA
• Section: 6

Judgement Text

- , - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO.413/AHD/2015 / ASSTT. YEAR: 2011-12 YASH ORGANIZERS P.LTD. GANESH CORPORATE HOUSE 100 FT. HEBATPUR-THALTEJ ROAD NR.SOLA BRIDGE OFF. S.G. HIGHWAY AHMEDABAD 380 054. PAN : AAACY 2649 A VS. DCIT, CIR.8 AMBAWADI AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S.N. DIVETIA, AR REVENUE BY : SHRI SAURABH SINGH, SR.DR ! ' / DATE OF HEARING : 13/03/2018 #$% ! ' / DATE OF PRONOUNCEMENT: 15 /05/2018 &' / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-8, AHMEDABAD DATED 22.12.2014 PASSED FOR THE ASSTT.YEAR 2011-12. 2. ASSESSEE HAS TAKEN THREE GROUNDS OF WHICH CONTAI NED SUB- GROUNDS. HOWEVER, ITS ONLY GRIEVANCE IS THAT THE LD .CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS.74,46,656/- BY W AY OF AN EX PARTE ORDER. ITA NO.413/AHD/2015 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COM PANY AT THE RELEVANT TIME WAS ENGAGED IN THE BUSINESS OF REAL E STATE AND CONSTRUCTION ACTIVITIES. IT HAS FILED ITS RETURN O F INCOME ON 7.7.2012 DECLARING TOTAL INCOME AT RS.2,97,13,160/- . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT A ND NOTICE UNDER SECTION 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. ON PERUSAL OF ACCOUNTS IT REVEALED TO THE AO THAT T OTAL SALE VALUE OF SEVEN SHOPS HAVE BEEN RECOGNISED IN THE PROFIT & LOSS ACCOUNT AT RS.7,70,86,500/-. HOWEVER, THE ASSESSEE HAS CRE DITED SALE OF RS.6,16,69,200/- ONLY IN THE ACCOUNTS FOR COMPUTING INCOME. THE AO SOUGHT EXPLANATION OF THE ASSESSEE AS TO WHY IT HAS NOT RECOGNIZED THE TOTAL VALUE OF THE SHOPS IN THE SALE VALUE. THE ASSESSEE CONTENDED THAT ACTUAL WORK OF CONSTRUCTION OF BUILDING COMPLETED TO THE EXTENT OF 89.66%. SINCE A NUMBER OF FORMALITIES ARE REQUIRED TO BE FULFILLED, THEREFORE, IT HAS TO RECOGNIZE THE SALE VALUE TO THE EXTENT OF 80%. THIS EXPLANATION OF TH E ASSESSEE WAS REJECTED BY THE AO. HE OBSERVED THAT THE ASSESSEE SHOULD HAVE RECOGNIZED SALE CONSIDERATION TO THE EXTENT OF 89.6 6% BECAUSE TO THIS EXTENT ACTUAL WORK HAS BEEN COMPLETED. HE WOR KED OUT THE DIFFERENCE OF 74,46,556/- AND MADE ADDITION. 4. DISSATISFIED WITH THIS ADDITION, THE ASSESSEE CA RRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A). THE LD.CIT( A) HAS OBSERVED THAT IN RESPONSE TO THE NOTICE OF HEARING, SHRI S.N . DIVETA, ADVOCATE HAS FILED WRITTEN SUBMISSIONS UNDER HIS SI GNATURE DATED 8.11.2014. THE ASSESSEE SOUGHT ADJOURNMENT VIDE AP PLICATION DATED 2.12.2014. HOWEVER, THE LD.CIT(A) HAS DECIDE D THE APPEAL ITA NO.413/AHD/2015 3 OF THE ASSESSEE EX PARTE . THE APPEAL OF THE ASSESSEE HAS BEEN DISMISSED. 5. WHILE IMPUGNING THE ORDER OF THE LD.CIT(A), THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT PROPER OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE AND APPEAL HAS BEEN ERRONE OUSLY DISMISSED EX PARTE . HE PRAYED THAT THE IMPUGNED ORDER BE SET ASIDE AND ONE MORE OPPORTUNITY BE GRANTED TO THE AS SESSEE TO MAKE SUBMISSION. ON THE OTHER HAND, THE LD.DR CONT ENDED THAT THE LD.CIT(A) HAS TAKEN INTO CONSIDERATION WRITTEN SUBMISSIONS AS WELL AS STATEMENT OF FACTS FILED BY THE ASSESSEE. 6. WE HAVE DULY CONSIDERED RIVAL SUBMISSIONS AND GO NE THROUGH THE RECORD CAREFULLY. SUB-SECTION 6 OF SECTION 250 CONTEMPLATES THAT LD.CIT(A) WOULD DETERMINE THE POINTS IN DISPUT E AND THEREAFTER RECORD REASONING IN SUPPORT OF HIS CONCL USION ON THESE POINTS. A PERUSAL OF THE IMPUGNED ORDER WOULD REVE AL THAT IT IS RUNNING INTO 5 PAGES. THE LD.CIT(A) HAS REPRODUCED GROUNDS OF APPEAL ON PAGE NO.1, AND THEREAFTER REPRODUCED ALLE GED SUBMISSIONS MADE BY THE ASSESSEE IN PARAGRAPH-3 ON PAGE NO.2. FROM LATTER PART OF PAGE NO.2 UPTO PAGE NO.5, THE L D.CIT(A) HAS REPRODUCED THE FINDING OF THE AO. THE LD.CIT(A) HA S CONCURRED WITH THE FINDINGS OF THE AO IN PARA-7. TO OUR MIND IMPUGNED ORDER IS NOT IN COHERENCE WITH THE REQUIREMENT OF S UB-SECTION (6) OF SECTION 250. THE LD.CIT(A) OUGHT TO HAVE GIVEN ONE MORE OPPORTUNITY TO THE ASSESSEE FOR ADVANCING ARGUMENTS AND SUBMITTING OTHER MATERIAL WHICH HAS BEEN SUBMITTED BEFORE THE AO. THEREAFTER BY RECORDING REASONS APPEAL OUGHT T O HAVE BEEN DECIDED. SIMPLICITOR CONCURRENCE WITH THE FINDING OF THE AO IS NOT PROPER METHOD FOR ADJUDICATING THE APPEAL. THEREFO RE, WE SET ITA NO.413/AHD/2015 4 ASIDE THE ORDER OF THE LD.CIT(A) AND RESTORE THIS I SSUE TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 15 TH MAY, 2018. SD/- SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER