GUMLA FLOUR MILLS LIMITED, RAIPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 1(2), RAIPUR

ITA 53/RPR/2007

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4005 (ITAT-RAIPUR)
• Duration Of Justice: 12 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 1999-2000
• Appeal Filed On: 24-01-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Difference of opinion; Set aside
• Section: 201; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHU RY ,JM . / I TA NO. 53 / NAG /20 07 / ASSESSMENT YEAR : 1999 - 2000 GUMLA FLOUR MILLS LTD., 9, MITTAL COMPLEX, STATION ROAD, RAIPUR (C.G.) PAN: AAACG8306Q ....... / APPELLANT / V/S. ASST. COMMISSIONER OF INCOME - TAX 1(2), RAIPUR / RESPONDENT A SSESSEE BY : NONE REVENUE BY : SHRI SANJAY KUMAR / DATE OF HEARING : 0 6 . 11 .2019 / DATE OF PRONOUNCEMENT : 08 .11 .2019 2 ITA NO. 53 / NAG /20 07 A.Y. 1999 - 2000 / ORDER PER ANIL CHATURVEDI, AM : THE APPEAL WAS HEARD BY THE RAIPUR BENCH OF THE TRIBUNAL ON 25.09.2007. HOWEVER, AS T HERE WAS DIFFERENCE OF OPINION BETWEEN JUDICIAL MEMBER AND ACCOUNTANT MEMBER CONSTITUTING THE BENCH WHICH HEARD THE APPEAL , THE MATTER WAS REFERRED TO HONBLE THIRD MEMBER BY THE HONBLE PRESIDENT, ITAT UNDER SECTION 255(4) OF THE INCOME - TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR DECIDING THE DIFFERENCE IN OPINIO N. 2. THE FOLLOWING TWO QUESTIONS, THE ISSUES WERE REFERRED TO THE THIRD MEMBER BY THE HONBLE PRESIDENT, ITAT UNDER SECTION 255(4) OF THE ACT : ( I ) WHETHER, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION OF RS.40,11,000/ - MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED CIT(A) ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 IS LIABLE TO BE DELETED AS HELD BY THE LEARNED JM OR THE MATTER NEEDS TO BE RESTORED TO THE FILE OF THE AO FOR GIVING HIM AN OPPORTUNITY TO DECIDE THE SAME AFRESH IN THE LIGHT OF DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE LEARNED CIT(A) AS HELD BY THE LEARNED AM? ( II ) WHETHER, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE DISALLOWANCE OF RS.1,64,432/ - MADE BY THE AO AND CONFIRMED BY THE LEARNED CIT(A) ON ACCOUNT OF INTEREST PAID IN RESPECT OF THE AFORESAID CASH CREDITS IS LIABLE TO THE DELETED AS HELD BY THE LEARNED J M OR THIS MATTER BEING CONSEQUENTIAL TO THE MAIN ISSUE RELATING TO THE ADDITION U/S 68 ALSO NEEDS TO BE RESTORED TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH DEPENDING ON HIS DECISION ON THE MAIN ISSUE? 3 ITA NO. 53 / NAG /20 07 A.Y. 1999 - 2000 3. THE THIRD MEMBER VIDE ORDER DATED 20.04.201 2 HAD DECIDED THE ISSUE AS REFERRED TO HIM, SO THAT THE MATTER WAS REFERRED TO THE DIVISION BENCH FOR A DECISION AS PER MAJORITY VIEW. 4. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED ON ITS B EHALF . FURTHER, THE REVENUE HAS FILED A LETTER DATED 23.10.2019 STATING THAT FOR THE LAST TEN YEARS THE ASSESSEE IS NOT STAYING IN THE ADDRESS PROVIDED BY ASSESSEE AND THE NOTICE OF HEARING COULD NOT BE SERVED ON THE ASSESSEE . HENCE, WE PROCEED TO DECIDE THE PRESENT APPEAL EX - PARTE THE ASSESSEE AFTER HEARING THE LD. DR. 5 . THE THIRD MEMBER VIDE ORDER DATED 20.04.2012 HAS CONCURR ED WITH THE FINDINGS OF HONBLE ACCOUNTANT MEMBER WHO HAD SET ASIDE THE MATTER TO THE ASSESSING OFFICER WITH DIRECTIONS TO DECIDE THE SAME ON MERIT S AFTER PROVIDING DUE OPPORTUNITY OF HEARING. IN TERMS OF MAJORITY VIEW I.E. AS EXPRESSED BY LD. ACCOUNTANT MEMBER AND THE LD. THIRD MEMBER VIDE THEIR SEPARATE ORDERS, THE MATTER IS SET ASIDE TO ASSESSING OFFICER TO DECIDE THE ISSU E ON MERITS AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 4 ITA NO. 53 / NAG /20 07 A.Y. 1999 - 2000 5 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 8 TH DAY OF NOVEMBER , 201 9 . SD/ - SD/ - PARTHASARATHI CHAUDHURY ANIL CHATURVEDI JUDICIAL MEMBER ACCOUNTANT MEMBER / RAIPUR ; / DATED : 8 TH NOVEMBER , 2019 . GCVSR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5 . , , , / DR, ITAT, RAIPUR BENCH, RAIPUR . 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, RAIPUR . 5 ITA NO. 53 / NAG /20 07 A.Y. 1999 - 2000 DATE 1 DRAFT DICTATED ON 0 6 .11 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 0 7 . 11 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER