ITO, UDAIPUR V. Shri Mithilesh Suhalka, UDAIPUR

ITA 436/JODH/2013

• Counselvise Citation: 43623314 RSA 2013
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 28-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.436/JODH/2013 (A.Y. 2007-08) ITO, WARD-1(1), VS. SHRI MITHILESH SUHALKA, UDAIPUR. 29, SECTOR-11, HIRAN MAGRI, UDAIPUR. PAN NO. AXVPS 4325 C (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI N.A. JOSHI- D.R. DATE OF HEARING : 19/11/2013. DATE OF PRONOUNCEMENT : 21/11/2013. O R D E R PER N.K.SAINI, A.M THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE OR DER DATED 18/06/2013 OF LD. CIT (A), JODHPUR. DURING THE COURSE OF HEAR ING, NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT, THEREFORE, APPEAL IS DECIDED EXPARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED D.R. T HE ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER:- ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE PROTECTIVE ADDITIONS MADE OF RS. 15,07,705/- ON ACCOUNT 2 OF UNDISCLOSED INCOME GENERATED FROM LIQUOR BUSINES S AS THE ADDITION MADE ON SUBSTANTIVE BASIS ON THE SAID ISSUE IN THE CASE OF SHRI BASANTI LAL MEWAR, CONFIRMED BY THE LD. CIT(A) IS CHALLENGED BY SHRI B ASANTI LAL MEWAR BEFORE THE HON'BLE TRIBUNAL. THAT THE APPELLANT CRAVES TO ADD, AMEND, ALTER, D ELETE OR MODIFY ANY OR ALL THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME O F HEARING. 2. DURING THE COURSE OF HEARING, LEARNED D.R. AT THE VERY OUTSET SATED THAT THE CASE OF SHRI BASANTI LAL MEWARA, IN WHOSE CASE, SUBSTANTIVE ADDITION WAS MADE ON THE PROTECTIVE ADDITION AND THE SAME AMOUNT WAS ADDED ON PROTECTIVE BASIS IN THE ASSESSEES HANDS, HAS BEEN SET ASIDE VIDE ORDER DATED 23/09/2013 IN I.T.A.NO. 271/JODH/2011 FOR THE SAME ASSESSMENT YEAR, WHICH IS UNDER CONSIDERATION. THEREFORE, THIS ISSUE ALS O TO BE SET ASIDE TO THE FILE OF ASSESSING OFFICER AS HAS BEEN DONE IN THE CASE OF S HRI BASANTI LAL MEWARA. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R . AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IT I S NOTICED THAT THE ADDITION UNDER CONSIDERATION MADE IN THE HANDS OF THE ASSESS EE ON PROTECTIVE BASIS WAS DELETED BY THE LEARNED CIT(A) ONLY ON THIS BASIS TH AT THE SUBSTANTIVE ADDITION WAS MADE IN THE HANDS OF SHRI BASANTI LAL MEWARA, W HICH IS APPARENT FROM PAGE 5 & 6 OF THE IMPUGNED ORDER, WHEREIN LEARNED CIT(A) HAS HELD AS UNDER:- SINCE THE INCOME ASSESSED ON SUBSTANTIVE BASIS IN THE HANDS OF SHRI BASANTI LAL MEWARA HAS BEEN CONFIRMED, THERE IS NO CASE FOR MAK ING ASSESSMENT OF SUCH INCOME IN THE HANDS OF THE APPELLANT WHICH HAS BEEN ASSESSED ON PROTECTIVE BASIS. THEREFORE, THE INCOME ASSESSED ON PROTECTIV E BASIS IN THE HANDS OF THE 3 APPELLANT AMOUNTING TO RS. 15,07,705/- IS DELETED A ND ALL THE ABOVE GROUNDS ARE ALLOWED. FROM THE ABOVE FACTS, IT IS CLEAR THAT WHILE DECI DING THE APPEAL IN THE CASE OF SHRI BASANTI LAL MEWARA VS. ITO, WARD-1(2), UDAIPUR IN I.T.A.NO. 271/JODH/2013 FOR THE A.Y. 2007-08, THE ISSUE RELAT ING TO THE ADDITION ON SUBSTANTIVE BASIS HAS BEEN RESTORED TO THE FILE OF ASSESSING OFFICER. THEREFORE, THIS ISSUE RELATING TO PROTECTIVE ADDITION IN THE H ANDS OF THE ASSESSEE IS ALSO SET ASIDE TO THE FILE OF ASSESSING OFFICER FOR FRES H ADJUDICATION ALONG WITH THE CASE OF SHRI BASANTI LAL MEWARA IN ACCORDANCE WITH LAW AFTER GIVING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 4. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL P URPOSE. (ORDER PRONOUNCED IN THE COURT ON 21 ST NOVEMBER, 2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21 ST NOVEMBER , 2013. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.