Prime Ceramics Pvt.Ltd., Baroda V. The ACIT.,Circle-4, Baroda

ITA 453/AHD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67662 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 30-08-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 18-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEW SR DR

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.453/AHD/2013 [ASSTT.YEAR : 2009-2010] PRIMA CERAMICS PVT. LTD. AT & PO : GAVASAD PADRA JAMBUSAR ROAD DIST : VADODARA. PAN : AABCP 3755 D /VS. DCIT, CIR.4 BARODA. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : MS.URVASHI SODHAN + 2 3 )/ REVENUE BY : SHRI K.C. MATHEW, SR.DR 5 2 &(*/ DATE OF HEARING : 30 TH AUGUST, 2013 678 2 &(*/ DATE OF PRONOUNCEMENT : 5.9.2013 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT : THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-2010, IS DIRE CTED AGAINST THE ORDER OF THE CIT(A)-III, BARODA, DATED 7.11.201 2. 2. THE EFFECTIVE GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UNDER: 1. LD. CIT (A) ERRED IN LAW AND ON FACTS IN CONFIR MING ADDITION MADE BY AO OF RS.1,37,56,700/- TAKING GROS S ITA NO.453/AHD/2013 -2- PROFIT OF 25% ON ALLEGED UNACCOUNTED SALES DETERMIN ED BY EXCISE AUTHORITY. LD. CIT (A) FAILED TO APPRECIATE THE FACT THAT THE UNACCOUNTED SALES AS DETERMINED BY THE EXC ISE AUTHORITY ARE CHALLENGED BEFORE THE EXCISE TRIBUNAL THAT HAS NOT ATTAINED FINALITY. UNDER SUCH CIRCUMSTANCES LD. CIT (A) OUGHT TO HAVE QUASHED ADDITION MADE SIMPLY ON T HE BASIS OF UNACCOUNTED SALES QUANTIFIED BY EXCISE DEP ARTMENT WITHOUT ANY EVIDENCE ON RECORD OF ALLEGED SUPPRESSE D SALES. 2. ALTERNATIVELY AND WITHOUT PREJUDICE IT IS SUBMIT TED THAT THE ID. CIT (A) OUGHT TO HAVE TAKEN INTO ACCOU NT SUBMISSION OF THE APPELLANT TO COMPUTE ADDITION AT AVERAGE NET PROFIT RATIO OF 5.29% FOR LAST SIX YEARS IN PLA CE OF 25% OF GROSS PROFIT OF ALLEGED UNACCOUNTED SALES. THE O RDER OF ID. CIT (A) BEING PREJUDICIAL & ERRONEOUS DESERVES TO BE QUASHED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT WHOLE ADDITION IS BASED ON THE ADDITION MADE IN THE EXCIS E CASE OF THE ASSESSEE, WHICH IS PENDING BEFORE THE EXCISE AND CU STOM TRIBUNAL. SHE SUBMITTED THAT MATTER MAY BE RESTORE D TO THE AO FOR FRESH CONSIDERATION IN ACCORDANCE WITH THE DECI SION OF EXCISE AND CUSTOM TRIBUNAL, WHICH IS YET TO BE PRONOUNCED. THE LEARNED DR COULD NOT CONTROVERT THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDER OF THE AO AND THE CIT(A). WE FIND THAT IN TH E PECULIAR FACTS OF THE CASE THAT THE ISSUE OF ADDITION MADE I N THE INCOME TAX CASE IS BASED ON ADDITION MADE IN EXCISE CASE OF TH E ASSESSEE, WHICH IS PENDING IN APPEAL BEFORE THE EXCISE AND CU STOM TRIBUNAL, WE ARE OF THE VIEW THAT IT WOULD BE JUSTI FIED TO RESTORE ITA NO.453/AHD/2013 -3- THE ISSUE IN THE GROUNDS OF THE APPEAL OF THE ASSES SEE TO THE FILE OF THE CIT(A) WITH DIRECTION TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW ON MERIT IN THE LIGHT OF THE OR DER OF THE EXCISE AND CUSTOM TRIBUNAL, TO BE PASSED IN THIS CA SE, AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD