Shri Takhatmal M.Bhawad, Surat V. The Income tax Officer,Ward-3(4), Surat

ITA 443/AHD/2009

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2067 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-04-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 10-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SANKAR
• Assessee Lawyers: VIJAY RANJAN
• Section: 69C; 143(3); 68

Judgement Text

ITA NO 443/A /2010 . A.Y. 2005- 06 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T. A. NO. 443 /AHD/2009 (ASSESSMENT YEAR: 2005-06 SHRI TAKHATAMAL M. BHAWAD PROP. OF MAMTA IMPEX, SURAT (APPELLANT) VS. THE ITO WARD 3(4), SURAT. (RESPONDENT) PAN: AATPB 6192 K APPELLANT BY : SHRI VIJAY RANJAN A.R. RESPONDENT BY : SHRI T. SANKAR SR. D.R. ( )/ ORDER DATE OF HEARING : 18-4-201 3 DATE OF PRONOUNCEMENT : 10 -05-2013 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) II, SURAT DATED 14.10.2008 FOR ASSESSMENT YE AR 2005- 06. 2. THE FACTS AS CULLED FROM THE ORDERS OF THE LOWER AUTHORITIES ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINES S OF DEALING IN ART SILK CLOTH. THE ASSESSEE FILED ITS RETURN OF IN COME FOR ITA NO 443/A /2010 . A.Y. 2005- 06 2 ASSESSMENT YEAR 2005-06 ON 31.10.2005 DECLARING TOT AL INCOME AT RS. 2,02,860/-. THE CASE WAS SELECTED FOR SCRUTI NY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER 143(3) V IDE ORDER DATED 28.12.2007 AND THE TOTAL INCOME WAS DETERMINE D AT RS. 78,83,470/-. AGGRIEVED BY THE ORDER OF ASSESSING OF FICER, ASSESSEE CARRIED THE MATTER BEFORE CIT (A). CIT(A) VIDE ITS ORDER DATED 14.10.2008 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER, THE ASSESSEE IS N OW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUN DS. [1] ON THE FACTS AND IN THE CIRSCUMSTANCES OF THE CASE, THE LEARNED COMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING AN ADDITION MADE BY THE ASSESSI NG OFFICER, UNDER SECTION 68 OF THE ACT FOR RS, 29,05, 000/- INTRODUCED IN THE FORM CAPITAL. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE LEARNED COMMISSIONER OF INCOME-T AX (APPEALS) HAS ERRED IN SUSTAINING AN ADDITION OF RS . 49,75,607/- MADE BY THE ASSESSING OFFICER INVOKING PROVISIONS OF SECTION 69C OF THE ACT OUT OF CLAIM O F PROCEEDING CHARGES. [3] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE LEARNED COMMISSIONER OF INCOME-T AS (APPEALS) HAS ERRED IN DISMISSING THE GROUND RAISED BY THE APPELLANT IN REGARD TO INITIATION OF PENALTY PR OCEEDINGS UNDER SECTION 271 (1)C OF THE ACT. 4. BEFORE US, AT THE OUTSET THE LD. A.R. SUBMITTED THAT IT COULD NOT FURNISH ANY EVIDENCE BEFORE ASSESSING OFFICER OR CI T(A) DUE TO THE UNAVOIDABLE CIRCUMSTANCE AS A LEGAL CASE WAS FI LED AGAINST HIM BY HIS ELDER SON DUE TO FAMILY ISSUES AND THER EFORE HE REMAINED DISTURBED FOR A LONG PERIOD. IN SUPPORT O F HIS ITA NO 443/A /2010 . A.Y. 2005- 06 3 CONTENTION, THE LEARNED A.R. ALSO FILED A NOTARIZED AFFIDAVIT BY THE ASSESSEE. HE THEREFORE URGED THAT ONE MORE OPPO RTUNITY BE GRANTED TO THE ASSESSEE TO FURNISH THE NECESSARY EV IDENCE IN ITS POSSESSION AND TO SUBSTANTIATE HIS CASE. THE LEARN ED D.R. ON THE OTHER HAND OPPOSED THE REQUEST OF THE ASSESSEE. HE ALSO PLACED RELIANCE ON THE DECISION IN THE CASE OF FAIR DEAL FILAMENTS LIMITED VS. CIT 2008 302 ITR 173 GUJ. AND IN THE CASE OF N.V. SURTI FAMILY TRUST VS. CIT 206 153 TAX MANN 31 GUJ. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. 6. BEFORE US, THE LEARNED A.R. HAS SUBMITTED A SWOR N AFFIDAVIT OF THE ASSESSEE WHEREIN ASSESSEE HAS INTERALIA STATED THAT THE ASSESSEE COULD NOT FURNISH THE DETAILS CALLED FOR, DUE TO THE LEGAL CASE FILED BY HIS ELDER SON AGAINST HIM. HE C OULD NOT ATTEND TO THE MATTER AS THE MATTER HAD REACHED UP T O A LEVEL OF IMPRISONMENT AND THE ASSESSEE HAD TO SEEK BAIL FRO M THE COURT. IT WAS THUS SUBMITTED THAT THE ASSESSEE HAD BEEN DISTURBED FOR A LONG PERIOD AND THEREFORE COULD NOT FURNISH THE REQUIRED DETAILS. 7. BEFORE US, THE LEARNED D.R. COULD NOT CONTROVERT THE AVERMENTS MADE BY THE ASSESSEE IN HIS AFFIDAVIT. THE DECISION S RELIED BY THE REVENUE ARE ALSO DISTINGUISHABLE ON FACTS ARE N OT APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN VI EW OF THE TOTALITY OF CIRCUMSTANCES, WE ARE OF VIEW THAT TO MEET THE ENDS ITA NO 443/A /2010 . A.Y. 2005- 06 4 OF JUSTICE, ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE. WE THEREFORE SET ASIDE THE MATTER BACK TO THE FILE OF CIT(A) FOR DECIDING THE ISSUE DE NOVO ON MERITS AFTER CONSIDE RING THE EVIDENCE FILED BY THE ASSESSEE AND AFTER CALLING A REMAND REPORT FROM THE ASSESSING OFFICER. CIT(A) SHALL AL SO GRANT REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTI ES. 8. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 10 - 05 - 2013. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER TRUE COPY AHMEDABAD. RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDA BAD