Shri Ashutosh Chandrakant Patal, SILVASSA V. The ACIT.,Vapi Circle, Vapi

ITA 620/AHD/2012

• Counselvise Citation: 62020514 RSA 2012
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 12-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MEHUL K PATEL
• Section: 80IB

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , . .!'#$, % & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ./ I.T.A. NO.620/AHD/2012 ( ( ) ( ) ( ) ( ) / / / / ASSESSMENT YEAR : 2008-09) ASHUTOSH CHANDRAKANT PATEL ASHUTOSH NEAR POWER HOUSE ZANDA CHOWK, SILVASSA U.T. OF D&NH ( ( ( ( / VS. THE ASST.CIT VAPI CIRCLE, VAPI * % ./+, ./ PAN/GIR NO. : AGMPP 3734 C ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 / APPELLANT BY : SHRI MEHUL K.PATEL ./*- 1 0 / RESPONDENT BY : SHRI SAMIR TEKRIWAL, SR.D.R. (2 1 3% / / / / DATE OF HEARING : 07/05/2012 4') 1 3% / DATE OF PRONOUNCEMENT : 25/5/12 5 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FR OM THE ORDER OF LEARNED CIT(APPEALS)-VALSAD DATED 29.11.2011. THE SUBSTANTIVE GROUNDS READ AS FOLLOWS:- 01. THE ORDER OF ASSESSMENT IS CONTRARY TO THE FA CTS OF THE CASE AND PREJUDICIAL TO THE ASSESSEE. ITA NO.620/AHD/ 2012 ASHUTOSH CHANDRAKANT PATEL VS. ACIT ASST.YEAR 2008-09 - 2 - 02. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE ADDITIONS MADE ARE CONTRARY TO LAW AND BAS ED ON ERRONEOUS UNDERSTANDING OF THE FACTS OF THE CASE. 03. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFI CER IN NOT GRANTING DEDUCTION U/S.80IB TO THE APPELLANT ON THE BASIS TH AT THE APPELLANT HAS NOT EMPLOYED THE REQUIRED NUMBER OF WORKERS AND NOT COMPLIED WITH THE PROVISIONS OF SECTION 80IB(2)(IV) OF THE ACT. THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO THE FACTS OF THE CASE AND THE PROVISIONS OF SECTION 80IB ON A PLAIN READING AND INTERNAL INTERPRETATION OF THE LAW AND HENCE DESERVES TO BE DELETED. 05. ON APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFI CER IN TREATING THE RENTAL INCOME SHOWN BY THE APPELLANT TO THE TUNE OF RS.3,00,000/- AS INCOME EARNED FROM UNDISCLOSED SOURCES. THE ACTION OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BASED ON PR ESUMPTIONS AND SURMISES, AND IS CONTRARY TO THE FACTS AND CIRCUMST ANCES OF THE CASE AND DESERVES TO BE DELETED. 2. AT THE OUTSET, LD.AR MR.MEHUL K.PATEL HAS INFORM ED THAT THE LEARNED CIT(APPEALS) HAS FOLLOWED EARLIER DECISIONS WHICH WERE SUBJECTED TO APPEAL BEFORE THE TRIBUNAL. IN THIS R EGARD, THE DECISION OF LEARNED CIT(APPEALS) ARE REFERRED AS UNDER:- 5.1. DECISION : I HAVE CONSIDERED THE OBSERVATION MADE BY THE AO IN THE ASSESSMENT ORDER AS WELL AS THE CONTENTI ON RAISED BY THE APPELLANT IN ITS WRITTEN SUBMISSION ALONG WITH REMA ND REPORT OF THE AO AND THE REJOINDER TO THE REMAND REPORT FOR THAT YEA R. SIMILAR ISSUE WAS DECIDED BY MY PREDECESSOR LD. CIT(A) VIDE APPEAL NO.CIT(A)/VLS/201/08-09 DATED 13.03.2009 FOR THE A. Y. 2006-2007 WHEREIN THE LD.CIT(A) HAS DISMISSED THE APPEAL UPHO LDING THE FINDINGS OF THE AO IN APPELLANTS OWN CASE. THE FACTS AND C IRCUMSTANCES BEING THE SAME IN THIS YEAR TOO, I AM INCLINED TO CONFIRM THE ORDER OF THE AO, THE APPEAL IN THIS GROUND IS THEREFORE DISMISSED . ITA NO.620/AHD/ 2012 ASHUTOSH CHANDRAKANT PATEL VS. ACIT ASST.YEAR 2008-09 - 3 - 6.1. DECISION : I HAVE CONSIDERED THE OBSERVATION MADE BY THE A O IN THE ASSESSMENT ORDER AS WELL AS THE CONTENTION R AISED BY THE APPELLANT IN THE WRITTEN SUBMISSION ALONG WITH REMAND REPORT OF THE AO AND THE REJOINDER TO THE REMAND REPORT FOR THAT YEAR. SIMI LAR ISSUE WAS DECIDED BY MY PREDECESSOR LD. CIT(A) VIDE APPEAL NO.CIT(A)/ VLS/201/08-09 DATED 13-03-2009 FOR THE A.Y. 2006-2007 WHEREIN THE LD.CIT(A) HAS DISMISSED THE APPEAL UPHOLDING THE FINDINGS OF THE AO IN APPELLANTS OWN CASE. THE FACTS AND CIRCUMSTANCES BEING THE SA ME IN THIS YEAR TOO, I AM INCLINED TO CONFIRM THE ORDER OF THE AO, THE A PPEAL IN THIS GROUND IS THEREFORE DISMISSED . 2.1. THE LD.AR HAS STATED THAT WHATEVER SHALL BE TH E OUTCOME OF THE OTHER APPEALS OF THE PAST YEARS OF THE VERY ASSESSE E BY THE ORDERS OF THE RESPECTED TRIBUNAL SHALL BE BINDING ON THIS ASSESSE E AND SHALL ALSO APPLY FOR THE YEAR UNDER CONSIDERATION. FOR THIS PROPOSI TION, LOD.DR MR.SAMIR TEKRIWAL HAD NO OBJECTION, HOWEVER HE HAS PLACED RE LIANCE ON THE ORDERS OF THE REVENUE AUTHORITIES. BEFORE US, AN ORDER OF THE ITAT B BENCH AHMEDABAD BEARING ITA NOS.3365/AHD/2008 (BY REVENUE ) AND 3471/AHD/2008 (BY ASSESSEE) PASSED FOR ASSESSMENT YEAR 2005-06 (CROSS APPEALS) TITLED AS ITO VS. SHRI ASHUTOSH CH ANDRAKANT PATEL DATED 18/05/2012, WHEREIN THE MATTER WAS RESTORED B ACK TO THE FILE OF THE LEARNED CIT(APPEALS) VIDE PARAGRAPH NO.8; REPRODUCE D BELOW:- 8. SINCE THE DETAILS FILED BEFORE THE CIT(A) WERE NOT FURNISHED BEFORE THE A.O. AND THE SAME WERE FURNISHED BEFORE THE CIT(A) FOR THE FIRST TIME WE ARE OF THE OPINION THAT RULE 46A OF THE I.T. RULES WERE VIOLATED. IN VIEW OF THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND FAIR PLAY THE M ATTER SHOULD BE REMITTED BACK TO THE FILE OF THE A.O. TO DECIDE AND VERIFY ALL THOSE DOCUMENTS FURNISHED BEFORE THE CIT(A) AND FRAME THE ASSESSMENT DE-NOVO AND A.O. SHOULD ALLOW REASONABLE OPPORTUNIT Y OF HEARING TO THE ASSESSEE. ITA NO.620/AHD/ 2012 ASHUTOSH CHANDRAKANT PATEL VS. ACIT ASST.YEAR 2008-09 - 4 - 3. CONSIDERING THE STATEMENT OF LD.AR THAT THE OUTC OME OF THE TRIBUNAL ORDER SHALL FOLLOW FOR THE YEAR UNDER CONS IDERATION AS WELL, THEREFORE WE RESTORE THE ISSUE AS RAISED IN THE GRO UNDS OF APPEAL BY THE APPELLANT FOR THE YEAR UNDER CONSIDERATION BACK TOT EH FILE OF LEARNED CIT(APPEALS) BE DECIDED DE NOVO AS PER LAW ALONG WITH THE APPEALS WHICH WERE ALREADY RESTORED BACK. RESULTANTLY, THI S APPEAL OF THE ASSESSEE MAY BE TREATED AS ALLOWED BUT FOR STATISTI CAL PURPOSES. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES ONLY. SD/- SD/- ( . .!'#$ ) ( ) % ( A.K. GARODIA ) ( M UKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25/ 05 /2012 63..(, .(../ T.C. NAIR, SR. PS 5 1 .7 8 7) 5 1 .7 8 7) 5 1 .7 8 7) 5 1 .7 8 7)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. 9 / CONCERNED CIT 4. 9() / THE CIT(A)- 5. 7 >> >/ // / + + + + ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD