Shri Choridya Dilip Motilalji, Pune V. Dy. CIT Cir- 9 Pune, Pune

ITA 716/PUN/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4313 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 10-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO. 716/PN/2012 (ASSESSMENT YEAR 2008-09) CHORDIYA DILIP MOTILALJI, F.NO.10, SAJJAN PLAZA, 3 RD FLOOR, CHINCHWAD GAON, PUNE 411033 PAN NO. AAMPC 1174F .. APPELLANT VS. DCIT, CIRCLE-9, PUNE .. RESPONDENT APPELLANT BY : SHRI M.K. KULKARNI RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 27-06-2013 DATE OF PRONOUNCEMENT : 27-06-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 09-03-2012 OF THE CIT(A)-V, PUNE RELATING TO ASSESS MENT YEAR 2008-09. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE, AN INDIVIDUAL, FILED HIS ORIGINAL RETURN OF INCOME ON 29-09-2008 DECLARI NG TOTAL INCOME OF RS.16,67,420/- WHICH WAS SUBSEQUENTLY REVISED TO RS .16,66,390/- ON 30- 09-2008. SUBSEQUENTLY, THE ASSESSEE AGAIN REVISED THE INCOME BY DECLARING TOTAL INCOME OF RS.1,37,89,116/- ON 30-03 -2009. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTED THAT AN AMOUNT OF RS.18,99,825/- IS OUTSTANDING AGAINST SHRI AMOL CHO RDIA (PROPRIETOR OF VISION ASSOCIATES). ON BEING ASKED BY THE AO TO FU RNISH LEDGER EXTRACT, SUBSEQUENT PAYMENT DETAILS, CONFIRMATIONS AND TRANS ACTIONS DETAILS ETC THE ASSESSEE THROUGH HIS AUTHORISED REPRESENTATIVE OFFERED THIS AMOUNT 2 TO TAX AS CESSATION OF TRADING LIABILITY U/S.41(1) OF THE I.T. ACT. THE AO ACCORDINGLY MADE ADDITION OF RS.18,99,825/- TO THE TOTAL INCOME OF THE ASSESSEE U/S.41(1) OF THE I.T. ACT. 3. BEFORE THE CIT(A) IT WAS SUBMITTED THAT NO SUCH OFFER WAS MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT WA S SUBMITTED THAT THIS OFFER IS AGAINST THE LAW AND THE PROVISIONS OF SECT ION 41(1) CANNOT BE APPLIED TO THE FACTS OF THE PRESENT CASE. RELYING ON VARIOUS DECISIONS IT WAS SUBMITTED THAT THE ADDITION MADE BY THE AO BEIN G UNCALLED FOR SHOULD BE DELETED. 3.1 HOWEVER, THE LD. CIT(A) WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND UPHELD THE ADDITION MADE BY THE AO. SO FAR AS THE CLAIM OF THE ASSESSEE THAT NO SUCH OFFER WAS MA DE DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE LD. CIT(A) OBSERVED T HAT THE AO IN PARA 2 OF THE ASSESSMENT ORDER HAS CLEARLY MENTIONED THA T SRI PAWAN SETTY, CHARTERED ACCOUNTANT HAS ATTENDED THE PROCEEDINGS B EFORE HIM AND HAD MADE THE OFFER DURING THE COURSE OF ASSESSMENT PROC EEDINGS FOR TAXING THE AMOUNT OF RS.18,99,825/- U/S.41(1) OF THE I.T. ACT. THEREFORE, THIS ARGUMENT OF THE ASSESSEE IS QUITE VAGUE AND HAS TO BE REJECTED. 3.2 SO FAR AS THE SECOND PLEA TAKEN BY THE ASSESSEE THAT IN ANY CASE THIS OFFER IS AGAINST LAW IN VIEW OF THE VARIOUS DECISIO NS CITED BEFORE HIM THE LD. CIT(A) NOTED THAT THE ASSESSEE HIMSELF HAS OFFE RED THE SAME TO TAX ON ACCOUNT OF PURCHASE OF MATERIALS WHICH WAS SHOWN AS OUTSTANDING. THEREFORE, THERE WAS NO ONUS ON THE AO PROVE THAT T HERE WAS BILATERAL ACT ON THE PART OF THE ASSESSEE AS WELL AS THE CREDITOR . DISTINGUISHING THE 3 VARIOUS DECISIONS RELIED ON BEFORE HIM THE LD. CIT( A) CONFIRMED THE ADDITION MADE BY THE AO. 4. AGGRIEVED WITH SUCH ORDER OF THE LD.CIT(A) THE A SSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C.I.T. (A) - V, PUNE WAS NOT JUSTIFIED IN CONFIRMING THE ADDITIO N OF RS.18,99,825/- MADE BY THE A.O. WITHOUT PROPERLY APPRECIATING THE SUBMI SSIONS MADE BEFORE HIM. THE ADDITION CONFIRMED BE QUASHED. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE ADDITION OF RS.18,99,825/- MADE BY A.O. INVOKING PROVISIONS OF S. 41 (1) AND CONFIRMED BY LD. C.I.T. (A) WITHOUT HOLDING THAT S. 41 (1) WA S APPLICABLE TO THE FACTS OF THE CASE IS WITHOUT JURISDICTION AND AGAINST THE PR OVISIONS OF LAW. THE ADDITION BE QUASHED. 3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. C.I.T. (A) WAS NOT JUSTIFIED IN NOT CONSIDERING THE JUDGMENT O F THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF KUSUM GOYAL V. I.T.O. (20 11) 48 DTR (CAL.) 343 REGARDING JURISDICTION OF THE ACT. 4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE ASSESSEE DENIES HIS LIABILITY TO PAY INTEREST U/S. 234-A, 234-B AND 234-C OF THE ACT AND THE SAME BE DELETED. 5) THE APPELLANT CRAVES LEAVE TO ADD/AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL. 5. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET F ILED AN APPLICATION FOR ADMISSION OF CERTAIN ADDITIONAL EVIDENCES SUCH AS LEDGER ACCOUNT OF SHRI AMOL CHORDIA GIVING DETAILS OF PAYMENTS MADE T O HIM DURING THE PERIOD FROM 04-02-2011 TO 11-02-2011 AND AN AFFIDAV IT STATING THE DETAILS OF PAYMENTS MADE TO SRI AMOL CHORDIA. THE A SSESSEE ALSO ENCLOSED A LETTER FROM SHRI PAWAN SETTY STATING THA T DUE TO SOME CONFUSION THE AUTHORISED REPRESENTATIVE HAD SIGNED THE ORDER SHEET. HOWEVER, ON VERIFICATION OF THE ACCOUNTS IT WAS SEE N THAT AN AMOUNT OF RS.18,99,825/- HAS BEEN PAID TO SHRI AMOL CHORDIA. THE LD. AUTHORISED 4 REPRESENTATIVE SUBMITTED THAT IN THE INTEREST OF JU STICE THE ADDITIONAL EVIDENCES SHOULD BE ADMITTED AND THE MATTER MAY BE DECIDED ACCORDINGLY. THE LD. DEPARTMENTAL REPRESENTATIVE O N THE OTHER HAND SUPPORTED THE ORDER OF THE CIT(A) AND OPPOSED THE A DMISSION OF THE ADDITIONAL EVIDENCE. 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. AFTER CONSIDERING THE C ONTENTS OF THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES, THE AFFIDAVIT FILED BY THE ASSESSEE, THE LETTER WRITTEN BY THE THEN AUTHOR ISED REPRESENTATIVE OF THE ASSESSEE ETC WE ADMIT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. SINCE ALL THESE EVIDENCES WERE NOT AVAILABLE BEFORE THE AO WHICH GO TO THE ROOT OF THE MATTER, THEREFORE, WE IN THE INTERE ST OF JUSTICE DEEM IT PROPER TO RESTORE THE ISSUE BACK TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOL D AND DIRECT ACCORDINGLY. GROUNDS RAISED BY THE ASSESSEE ARE AC CORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF ON THIS THE 27 TH DAY OF JUNE 2013 SD/- SD/- (R.S.PADVEKAR) (R.K. PANDA) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE DATED: 27 TH JUNE 2013 SATISH 5 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-V, PUNE 4 CIT-V, PUNE 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE