M/s. Aditi Construction, Baroda V. The Jt.CIT.,Range-5, Baroda

ITA 688/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76876 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-07-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 04-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N SOPARKAR WITH P M MEHTA
• Keywords: Principle of natural justice; Additional evidence

Judgement Text

``IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NO.688/AHD/2011 A.Y.2007-08 M/S. ADITI CONSTRUCTION, SAMRAIYA-II, SAMRAIYA COMPLEX, AKOTA- MUNJMAHUDA ROAD, AKOTA, BARODA. PAN: AADFA 3100C VS JCIT, RANGE-5, BARODA. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI NIMESH YADAV, SR.D.R., ASSESSEE(S) BY : SHRI S.N. SOPARKAR WITH P.M. MEHTA, A.R. / DATE OF HEARING : 10/07/2014 / DATE OF PRONOUNCEMENT: 11/07/2014 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FRO M AN ORDER OF LD. CIT(A)-I, BARODA, DATED 27.01.2011. THE CONCISE GRO UNDS HAVE BEEN RAISED, WHICH READS AS UNDER: 1. THE LD. CIT(A)-V, BARODA HAS GROSSLY ERRED IN LAW AND IN FACTS IN CONFIRMING THE ADDITION MADE BY THE AO RS.31,00,000 /- ON THE GROUND OF UNACCOUNTED SALES. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING INTEREST CHARGED U/S.234A, 234B, 234C AND 234D OF T HE ACT AS THE APPELLANT FIRM HAS FILED THE RETURN OF INCOME SHOWING TAXABLE INCOME OF RS.35,60,090. 2. AT THE OUTSET, THE APPELLANT HAS ALSO MOVED AN A PPLICATION UNDER RULE 29 FOR FILING ADDITIONAL EVIDENCES. IN THE APP LICATION, THE EVIDENCES WHICH WERE CLAIMED AS ADDITIONAL EVIDENCES WERE STA TED TO BE AS UNDER, RELEVANT PORTION IS REPRODUCED BELOW: ITA NO.688/AHD/2011 M/S. ADITI CONSTRUCTION VS. JCIT, RANGE-5, BARODA. FOR A.Y. 2007-08 - 2 - THE APPEAL HAS BEEN FILED AGAINST THE ORDER OF THE CIT(A)-V, BARODA'S NO. CAB/ (A)-V/179/09-10 DT.27/1/2011 FOR A.Y. 2007-08. THE ONLY POINT IN DISPUTE IS ADDITION OF UNRECORDED SALE RS. 31,00,00 0/- WHICH HAS BEEN OFFERED AND ASSESSED TO TAX IN THE CASE OF SISTER CONCERN V IZ HINDUSTAN EARTH MOVERS PVT. LTD. IT IS MAIN ARGUMENT OF THE APPELLANT FIRM THAT HIND USTAN EARTH MOVERS PVT. LTD. IS THE ABSOLUTE OWNER AND THE RIGH T PERSON AS REGARDS THE SALE OF PLOT NO. 3 OF R.S. NO. 33 AKOTA, BARODA. FOR THE PROPER REPRESENTATION OF THE FACTS OF THE C ASE AND THE TRANSACTIONS RECORDED IN THE BOOKS OF ACCOUNTS OF M/S. ADITI CON STRUCTION AND HINDUSTAN EARTH MOVERS PVT. LTD. (HEMPL), WE HUMBLY REQUEST Y OUR HONOURS TO ALLOW US TO FILE THE ADDITIONAL EVIDENCES AS UNDER: 1. MOU DT. 21/8/1997 EXECUTED BETWEEN HINDUSTAN EAR TH MOVERS PVT. LTD. (OWNER) AND M/S. ADITI CONSTRUCTION (PURCHASER) THE ASSESSEE FIRM. 2. MODIFIED MOU DT. 1/4/2005 EXECUTED BETWEEN HEMPL AND M/S. ADITI CONSTRUCTION. 3. AFFIDAVIT DT. 16/7/2012 BY SHRI RAJESH V. NAGDA THE CHARTERED ACCOUNTANT OF THE ASSESSEE FIRM. 4. AFFIDAVIT DT. 16/7/2012 BY SHRI JAYESH V. PANDYA ACCOUNTANT OF THE ASSESSEE FIRM. 5. COPY OF THE REMAND REPORT OF THE AO DTD 08/01/20 14 TO THE CIT(A), ON ADDITIONAL EVIDENCE FILED REFERRED AS ABOVE, IN APP EAL AGAINST PENALTY ORDER. 6. COPY OF THE ORDER OF THE CIT(A) - V BARODA IN AP PEAL NO. CAB(A) - V / 06 /12-13 DTD 28/02/2014 DELETING PENALTY IMPOSED U/S 271(L)(C) OF THE ACT. 2.1 AS PER THE ORDER PASSED U/S.143(3) DATED 31.12.2009 , THE ASSESSEE FIRM IS STATED TO BE IN THE CONSTRUCTION BUSINESS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON VERIFICATION IT WAS FOUND THAT THERE WAS A SALE DEED EXECUTED ON 6 TH SEPTEMBER, 2006 BETWEEN M/S. HINDUSTAN EARTHMOVERS PVT. LTD. AND M/S. SHREE TIRUPATI INFRA STRUCTURE. THE ASSESSEE WAS FOUND TO BE A CONFIRMING PARTY AND DUE TO THAT REASON RECEIVED TOTAL AMOUNT OF RS.31 LACS THROUGH CHEQUE. SINCE, THE SAID AMOUNT WAS NOT DISCLOSED BY THE ASSESSEE, THE SAME WAS TAXED AS UNACCOUNTED SALES IN THE HANDS OF THE ASSESSEE. 3. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY, LEARNED CIT(A) HAS CONFIRMED THE ADDITION. BEFORE U S, LEARNED AR HAS REFERRED A REMAND REPORT DATED 8 TH JANUARY, 2014 FOR THE REASON THAT THE ITA NO.688/AHD/2011 M/S. ADITI CONSTRUCTION VS. JCIT, RANGE-5, BARODA. FOR A.Y. 2007-08 - 3 - RELEVANT DOCUMENTS WERE VERY MUCH PLACED BEFORE THE REVENUE AUTHORITIES DURING THE PENALTY PROCEEDINGS AND THOS E WERE CONSIDERED AT THAT TIME. BECAUSE THOSE EVIDENCES WERE CONSIDERED IN ONE PROCEEDING, I.E., PENALTY PROCEEDINGS; THEREFORE, THOSE VERY DO CUMENTS OUGHT TO HAVE BEEN CONSIDERED BY LEARNED CIT(A) IN QUANTUM PROCEE DINGS; HE HAS PLEADED. LEARNED AR HAS ALSO DRAWN OUR ATTENTION ON THE COPY OF ACCOUNT OF M/S. HINDUSTAN MOVERS PVT. LTD. FOR THE PURPOSE THAT THE IMPUGNED AMOUNT OF RS.31 LACS WAS DULY CREDITED IN THE SAID ACCOUNT AND NECESSARY ADJUSTMENT WAS MADE IN THE BOOKS OF ACCOUNT. LEARNE D AR HAS ALSO REFERRED A DEED OF COMPROMISE WHICH IS A PART OF OR DER OF HONBLE CIVIL JUDGE (SD) VADODARA (SCS NO.354/2006) AND DEMONSTRA TED THAT THERE WAS ONE MOU DATED 21.08.1997 WHICH WAS AMENDED AND ANOTHER MOU WAS MADE ON 01.04.2005 AND THE DEAL WAS CANCELLED. LEARNED AR HAS ALSO INFORMED THAT THOSE MOUS WERE NOT TRACEABLE EA RLIER HENCE COULD NOT BE PRODUCED AT THE TIME OF ASSESSMENT PROCEEDIN GS. 4. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUM STANCES OF THE CASE AND AFTER CONSIDERING THE ARGUMENT OF LEARNED DR WH O HAS OPPOSED THE ADDITIONAL EVIDENCE, WE ARE OF THE CONSIDERED OPINI ON THAT THE NATURAL JUSTICE DEMANDS TO GIVE OPPORTUNITY TO THIS ASSESSE E TO PLACE ALL THOSE DOCUMENTS BEFORE LEARNED CIT(A) SO THAT IF REQUIRED A PROPER VERIFICATION AS PER LAW CAN BE DONE AND THEREUPON IF DEEM FIT TH ESE EVIDENCES CAN BE ADJUDICATED UPON TO DECIDE THE ISSUE OF TAXABILITY OF RS.31 LACS IN THE HANDS OF THE ASSESSEE. WITH THESE DIRECTIONS, SINCE THE MATTER HAS BEEN RESTORED BACK FOR AFRESH ADJUDICATION; HENCE, THE G ROUND RAISED MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ITA NO.688/AHD/2011 M/S. ADITI CONSTRUCTION VS. JCIT, RANGE-5, BARODA. FOR A.Y. 2007-08 - 4 - 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. SD/- SD/- (N.S. SAINI) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 11/07/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD