ITO CEN THANE, MUMBAI V. ALPESH B. GADA, BHIWANDI

ITA 780/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71042 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 04-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 27-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Assessee Lawyers: S ATISH CHANDAK
• Keywords: Document seized; Documents seized

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL I II I BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , . . . ! ! ! ! , ' ' ' ' #$ #$ #$ #$ BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & & & & SHRI SHRI SHRI SHRI N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA, AM , AM , AM , AM ./ I.T I.TI.T I.T.A. NO. .A. NO. .A. NO. .A. NO.780 780 780 780 /MUM/2011 /MUM/2011 /MUM/2011 /MUM/2011 ( % % % % & & & & / ASSESSMENT YEAR :2008-09) THE INCOME TAX OFFICER CENTRAL, THANE / VS. SHRI ALPESH B. GADA, PROP. APPU TEXTILE MILLS, 10/A- 1, PLOT NO. 501, GOPAL NAGAR, KALYAN ROAD, BHIWANDI $' ' ./ ( ./ PAN/GIR NO. :AAWPG2164M ( ') / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( *+') / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) ') ') ') ') , , , , / APPELLANT BY : SHRI O. P. SINGH *+') *+') *+') *+') - -- - , , , , /RESPONDENT BY : SHRI SATISH CHANDAK - -- - .' .' .' .' / DATE OF HEARING : 4 TH SEPTEMBER 2013 /0& /0&/0& /0& - -- -.' .' .' .' /DATE OF PRONOUNCEMENT: 6 TH SEPTEMBER 2013 #1 / O R D E R PER : , . . / VIJAY PAL RAO, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 15.10.2010 OF COMMISSIONER OF INCOME TAX(APPEALS) F OR THE ASSESSMENT YEAR 2008-09. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A) WAS RIGHT IN GRANTING RELIEF OF ` 11 ,26,715/- TO THE ASSESSEE. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS RIGHT IN HOLDING THE CLAIM OF ASSESS EE THAT ACTUAL METER OF WOVEN CLOTH IN 20,72,523 AS AGAINST NO OF METER PHYSICALLY WORKED OUT BY THE A.O IS 16,96,348 METER . ITA NO. 780/M/2011 ALPESH B. GADA 2 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS RIGHT IN ADMITTING FRESH EVIDENCE U/ S 46A WITHOUT ALLOWING OPPORTUNITY TO A.O. 3. WE HAVE HEARD THE LD. DR AS WELL AS THE LD. AR A ND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET WE NOTE THAT THE TRIBUNAL HAS CONSIDERED AND DECIDED THIS ISSUE IN THE CROSS APPE ALS OF THE ASSESSEE IN ITA NO. 893 TO 896 AND 1487/M/2011 FOR THE ASSESSME NT YEAR 2003-04- 2008-09 VIDE ORDER DATED 25.11.2011 IN PARA 29 AS U NDER: COMING TO GROUND NO. 2, FORM THE SEIZED DOCUMENTS AT PAGES-22 AND 34 TO ANNEXURE A-3/29 AT PAGE-168 AND 180 OF TH E PAPER BOOK, IT CAN BE SAID THAT THE LABOUR CHARGES ARE PA ID @ ` 3.25 PER METER FOR THE PERIOD FROM 1 ST APRIL 2002 TO 31 ST MARCH 2003. THE CLAIM OF THE ASSESSEE THAT FOR THE SUBSEQUENT YEARS , DUE TO INFLATION, THE LABOR CHARGES PAID HAS INCREASED, CA NNOT BE BRUSHED ASIDE. THIS BENCH OF THE TRIBUNAL IN M/S B. K. TEX CORP. AND MR. BHAGWAN G. GADA (SUPRA), HAS COME TO A CONC LUSION THAT LABOUR CHARGES COULD BE ALLOWED BY ADOPTING ` 3.00 PER METER. AS THE EVIDENCE IN THE SEIZED MATERIAL, IN THE CASE ON HAND, IN LEADING US TO A CONCLUSION THAT THE EXPENDITURE IS MORE THAN ` 3.00 PER METER LAID DOWN BY THE BENCH, AS SUGGESTED BY BOTH THE PARTIES, WE RESTORE THE MATER TO THE FILE OF ASSESS ING OFFICER FOR ADJUDICATION AFRESH IN ACCORDANCE WITH LAW. THE ASS ESSING OFFICER IS DIRECTED TO CONSIDER THE PROPOSITIONS LAID DOWN BY THIS BENCH IN THE CASE OF M/S B. K. TEX CORP. (SUPRA) AND IN T HE CASE OF MR. BHAGWAN G. GADA (SUPRA), AS WELL AS THE MATERIAL FO UND DURING THE COURSE OF SEARCH AND THE INFLATION FACTOR CLAIM ED BY THE ASSESSEE AND COME TO AN APPROPRIATE CONCLUSION. ACC ORDINGLY, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE COMMI SSIONER (APPEALS) AND RESTORE THIS ISSUE TO THE FILE OF ASS ESSING OFFICER FOR ADJUDICATION AFRESH. THUS, GROUND NO. 2, IS ALLOWED FOR STATISTICAL PURPOSES. 4. ACCORDINGLY THE ISSUE RAISED BY THE REVENUE IN T HESE APPEAL IS ALSO SET ASIDE TO THE RECORD OF THE AO IN TERMS OF THE D IRECTIONS AND OBSERVATION OF THIS TRIBUNAL IN ASSESSEES APPEAL ( SUPRA). THE AO IS DIRECTED TO DECIDE THE SAME AFRESH. ITA NO. 780/M/2011 ALPESH B. GADA 3 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 6 TH DAY OF SEPTEMBER 2013 SD/- SD/- ( . . ! ) ' #$ (N. K. BILLAIYA) ACCOUNTANT MEMBER ( ) % #$ (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 6 TH SEPTEMBER 2013 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI