SHRI RAMESH CHAND YADAV, Jaipur V. ITO, BEHROR

ITA 799/JPR/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7554 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 12-09-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Keywords: Unexplained investment
• Section: 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L.KALRA) ITA NO.799/ JP/2011 ASSESSMENT YEAR : 2001-02 PAN: AAFPY 2161 B SHRI RAMESH CHAND YADAV VS. THE ITO C/O TRIPUTI AUTOMOBILES WARD- BEHROR NEAR NHAI OFFICE NH-8 BEHROR VILLAGE SANGTERA, KOTPUTLI (JAIPUR ) (APPELLANT ) (RESPONDENT) ASSESSEE BY : SHRI MAHENDRA GARGIEYA DEPARTMENT BY : SHRI D.K. MEENA DATE OF HEARING: 11-01-2012 DATE OF PRONOUNCEMENT: 25-01-2012 ORDER PER N.L. KALRA, AM:- THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A), ALWAR DATED 29-03-2011 FOR THE ASSESSMENT YEAR 2001-02. 2.1 THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE A S UNDER:- 1. THE LD. AO HAS ERRED IN MAKING ADDITION OF RS. 8,50,320/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN BODY CABIN . 2. THE LD. HAS ERRED IN MAKING ADDITION OF RS. 2.00 LACS ON ACCOUNT OF UNEXPLAINED INSURANCE AND REGISTRATION EXPENSES INCURRED ON PURCHASES OF TRUCK AS PER DIRECTION OF CIT U/S 263 AND CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF AO ON THE GROUND THAT THIS GROUND OF APPEAL IS NOT MAINTAINABLE SINC E THE APPELLANT HAS NOT CHALLENGED THE ORDER U/S 263 BEFORE THE ITA T. 3. THE LD. AO HAS ERRED IN MAKING ADDITION OF RS. 1 ,34,719/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASE O F CHASSIS AND BODY AS PER DIRECTION OF CIT U/S 263 AND CIT (A) HA S ERRED IN 2 CONFIRMING THE ACTION OF AO ON THE GROUND THAT THIS GROUND OF APPEAL IS NOT MAINTAINABLE SINCE THE APPELLANT HAS NOT CHALLENGED THE ORDER U/S 263 BEFORE THE ITAT. 2.2 THE LD. CIT(A), ALWAR VIDE ORDER DATED 29-03-20 11 HAS DISPOSED OFF TWO APPEALS WHICH ARE NUMBERED AS UNDER:- 1. APPEAL N. 29/06-07 2. APPEAL NO. 279/08-09 2.3 THE FIRST APPEAL IS AGAINST THE ORDER OF THE AO PASSED U/S 148/143(3) OF THE ACT AND THIS APPEAL WAS INSTITUTED ON 5-04-2006. THE SE COND ORDER WAS PASSED BY THE AO U/S 263/143(3) AND THE ASSESSEE INSTITUTED THE APPEAL A GAINST SUCH ORDER ON 14-01-2009. IT IS TRUE THAT THE LD. CIT(A) HAS PASSED A CONSOLIDATED ORDER BUT WHILE PASSING SUCH ORDER HAS CONSIDERED TWO APPEALS SEPARATELY. THE ASSESSEE HAS FILED ONLY ONE APPEAL IN WHICH THE GROUNDS OF APPEAL RAISED ARE RELEVANT TO TWO APPEAL S DECIDED BY THE LD. CIT(A). SINCE THE LD. CIT(A) HAS DISPOSED OFF TWO APPEALS AGAINST TWO SEPARATE ORDERS OF THE AO PASSED ON DIFFERENT DATES, THEREFORE, THE ASSESSEE SHOULD HAV E FILED TWO DIFFERENT APPEALS. WE THEREFORE, CONSIDER THAT THIS APPEAL IS TO BE FILE D AGAINST APPELA NO. 279/08-09 DISPOSED OFF BY THE LD. CIT(A). 3.1 THE FIRST GROUND OF APPEAL IS NOT RELEVANT TO T HE APPEAL DISPOSED OFF BY THE LD. CIT(A) WHILE DECIDING THE APPEAL NO. 279/08-09. HEN CE, WE ARE NOT CONSIDERING THE FIRST GROUND OF APPEAL. THE ASSESSEE IS FREE TO FILE THE SEPARATE APPEAL WITH A REQUEST FOR CONDONATION OF DELAY, IF ANY. 3.2 THE LD. CIT(A) WAS OF THE OPINION THAT THE AO H AS GIVEN THE EFFECT TO THE ORDER OF THE LD. CIT U/S 263 AND SINCE THE ASSESSEE HAS NOT FILED THE APPEAL AGAINST THE ORDER U/S 3 263, THEREFORE, THE ASSESSEE CANNOT CHALLENGE THE O RDER OF THE AO GIVING EFFECT TO THE ORDER OF THE LD. CIT(A). HENCE, THE APPEAL OF THE A SSESSEE IS DISMISSED. 3.3 WE HAVE NOTICED THAT THE LD. CIT VIDE ORDER U/S 263 GAVE THE FOLLOWING DIRECTIONS. THEREFORE, THE ASSESSMENT IN ALL THE YEARS ARE SE T ASIDE WITH REGARD TO THE INVESTMENT IN PURCHASES OF CHASSIS OF TRUCKS AND ITS BODY BUILDING ETC AND THE EXPENDITURE INCURRED ON THE REGISTRATIO N, INSURANCE AND SOURCE THEREOF. 3.4 THUS THE LD. CIT SET ASIDE THE ASSESSMENT ONLY ON TWO ISSUES. IT IS NOT THE CASE OF TOTAL SET ASIDE OF ASSESSMENT ORDER DATED 03-03-200 6. THE AO WHILE PASSING THE ORDER U/S 263/143(3) DATED 15-12-2008 HAS COMPUTED THE INCOME AS UNDER:- INCOME AS PER ORIGINAL ORDER PASSED ON 28-02-06 R S. 18,17,000/- ADD: INCOME ON ACCOUNT OF INSURANCE & REGISTRATIO N RS. 2,00,000/- ADD:UNEXPLAINED INVESTMENT IN PURCHASE OF CHASSIS & BODY RS. 1,34,719/- RS. 21,51,719/- THUS THE AO WHILE PASSING THE ORDER ON 15 TH DEC. 2008 HAS CONSIDERED ONLY TWO ISSUES ON WHICH LD. CIT SETASIDE THE ORDER U/S 263 OF THE ACT . THE LD. CIT HAS SET ASIDE THE ISSUES AND HAS NOT GIVEN DIRECTION TO MAKE SPECIFIC ADDITI ON. THUS THE DIRECTION OF THE LD. CIT U/S 263 OF THE ACT WAS TO THE EXTENT OF CONSIDERING THE ISSUES. IT IS TRUE THAT THE LD. CIT (A) HAS NO JURISDICTION IN RESPECT OF CONSIDERING THESE TWO ISSUES MADE BY THE AO. HOWEVER, SO FAR AS QUANTUM OF ADDITION MADE IN RESP ECT OF THESE TWO ISSUES , THE LD. CIT (A) WAS FREE TO DECIDE THE ISSUE AS QUANTUM WAS NOT ADJUDICATED BY THE LD. CITS ORDER U/S 263 OF THE ACT. WE THEREFORE, FEEL THAT THE LD. CIT (A) WAS REQUIRED TO ADJUDICATE UPON THE ISSUE OF ADDITION OF RS. 2.00 LACS AND RS. 134 ,719/-. HENCE THESE TWO ISSUES ARE RESTORED BACK ON THE FILE OF THE LD. CIT(A). 4 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 25-01 -2012. SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED; 25 /01/2012 *MISHRA COPY FORWARDED TO :- 1. SHRI RAMESH CHAND YADAV, KOTPURLI, JAIPUR 2. THE ITO, WARD- BEHROR, JAIPUR 3. THE LD. CIT(A) 4 THE LD. CIT BY ORDER 5 THE LD.DR 6 THE GUARD FILE (ITA NO. 799/JP /11) A.R, ITAT, JAIPUR