Shree Darshan Corporation, Surat V. The ACIT.,Circle-7, Surat

ITA 804/AHD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67505 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 31-07-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 19-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D P BHATEJA
• Assessee Lawyers: M K PATEL
• Keywords: Opportunity of being heard; Condonation of delay
• Section: 143(3); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI A. MOHAN ALANKAMONY, AM AND SHRI KUL B HARAT, JM) ITA NO.716, 717 AND 804/AHD/2013 ( A. Y.2006-07) M/S. SHREE DARSHAN CORPORATION, FLAT NO.1105, SHREE DARSHAN PALACE, NEAR ARIHANT PARK, LAL DARWAJA, SURAT P. A. NO. ABAFS 2088 K VS THE A. C. I. T., CIRCLE-7, AAYAKAR BHAVAN, MAJURA GATE, SURAT (APPELLANT) (RESPONDENT) APPELLANT BY SHRI M. K. PATEL, AR RESPONDENT BY SHRI D. P. BHATEJA, SR. DR DATE OF HEARING: 31-07- 2013 DATE OF PRONOUNCEMENT: -08-2013 O R D E R PER A. MOHAN ALANKAMONY: THESE THREE APPEALS ARE FILED BY THE SAME ASSESSEE AGGRIEVED BY DIFFERENT ORDERS OF THE LEARNED CIT(A)- V, SURAT IN APPEAL NO. (I) CAS/V/07/2011-12 DATED 22-10-2012 PASSED U/S 250 READ WITH SECTION 143(3) OF THE INCO ME TAX ACT, (II) CAS/V/107/2011-12 DATED 23-11-2012 AND (III) CAS/V/ 108/2011-12 DATED 21-12-2012 BOTH PASSED U/S 250 READ WITH SECT ION 220(2) OF THE ACT, FOR THE ASSESSMENT YEAR 2006-07. FACTS OF THE CASE AND ISSUES INVOLVED BEING SIMILAR AND IDENTICAL, THESE APPEALS WERE HEARD TOGETHER AND THE SAME ARE DISPOSED OF BY THIS CONSOLIDATED O RDER. ITA NO.716, 717 & 804/A/2013(AY-2006-07) M/S. SHREE DARSHAN CORPORATION VS ACIT, CIR-7, SUR AT 2 2. IN THE APPEAL IN ITA NO.716/AHD/2013 FOR THE ASS ESSMENT YEAR 2006-07, THE ASSESSEE HAS RAISED THREE GROUNDS WHER EIN GROUND NOS.2 AND 3 ARE GENERAL IN NATURE AND DO NOT SURVIVE FOR ADJUDICATION. THE SOLE SURVIVING GROUND NO.1 RAISED BY THE ASSESSEE IS REP RODUCED HEREIN UNDER FOR REFERENCE:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION OF RS.86,00,000/- ON ACCOUNT OF ALL EGED UNRECORDED INCOME IN THE BOOKS OF ACCOUNT OF THE FI RM. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF DEVELOPERS FILED ITS RET URN OF INCOME FOR THE ASSESSMENT YEAR 2006-07 ON 31-03-2007 DECLARING TOT AL INCOME OF RS.86,00,000/- ALONG WITH AUDIT REPORT U/S 44AB, CO MPUTATION OF TOTAL INCOME, PROFIT & LOSS ACCOUNT AND BALANCE SHEET. TH E CASE WAS PROCESSED U/S 143(3) OF THE ACT AND ASSESSMENT WAS FINALIZED BY THE LEARNED AO ON 26-12-2008 DETERMINING THE INCOME OF THE ASSESSEE AT RS.86,00,000/-. IN THIS CASE, SURVEY U/S 133A OF TH E ACT WAS CARRIED OUT ON 28-12-2005 AT 7/372, B ARIHANT PARK, B/H GABAN I HOSPITAL, LAL DARWAJA, SURAT WHEREIN BOOKS OF ACCOUNT WERE IMPOUN DED U/S 133A (3) (IA) OF THE ACT AND BASED ON THE SAME, THE CASE WAS SELECTED FOR COMPULSORY SCRUTINY BY ISSUING NOTICE U/S 143(2) OF THE ACT ON 17-07-2007. IN RESPONSE THERETO THE ASSESSEE FURNI SHED THE DETAILS AS CALLED FOR WHICH WERE VERIFIED THOROUGHLY AND STATE MENT OF ONE OF THE PARTNERS, WHO WAS LOOKING AFTER THE AFFAIRS OF THE ASSESSEE FIRM, SHRI HARESHBHAI N. KANANI WAS ALSO RECORDED. SHRI HARESH BHAI N. KANANI ADMITTED TO HAVE RECEIVED TOTAL ON MONEY OF RS.1,11 ,00,000/- ON THE BASIS OF THE IMPOUNDED MATERIALS. THE ASSESSEE ALSO FILED BIFURCATION OF ITA NO.716, 717 & 804/A/2013(AY-2006-07) M/S. SHREE DARSHAN CORPORATION VS ACIT, CIR-7, SUR AT 3 THE ABOVE STATED ON MONEY RECEIPT VIDE ITS LETTER D ATED 09-01-2006 WHICH IS AS UNDER:- FINANCIAL YEAR ON MONEY ( IN RS.) 2004-05 25,00,000/- 2005-06 86,00,000/- SHRI HARESHBHAI N. KANANI, PARTNER OF THE ASSESSEE FIRM ADMITTED THAT THE INCOME OF RS.86,00,000/- WAS NOT RECORDED IN TH E BOOKS OF ACCOUNT OF THE ASSESSEE FIRM AND ACCORDINGLY HE OFFERED THE SAME FOR TAXATION. THE LEARNED AO FURTHER OBSERVED THAT FROM THE AUDIT REPORT U/S 44AB OF THE ACT IN FORM NO. 3CB AND 3CD ALONG WITH COMPUTAT ION OF TOTAL INCOME AND BALANCE SHEET RELEVANT TO THE PREVIOUS ASSESSME NT YEAR 2005-06 FILED ALONG WITH THE RETURN OF INCOME THAT THE ASSE SSEE HAS SHOWN RS.86,00,000/- AS INCOME DECLARED DURING THE SURVEY U/S 133A OF THE ACT. ACCORDINGLY, THE LEARNED AO ADDED THE ABOVE ST ATED AMOUNT OF RS.86,00,000/- TO THE INCOME OF THE ASSESSEE. 3.1 ON APPEAL BEFORE THE LEARNED CIT(A), THE LEARNE D CIT(A) REJECTED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER:- 6. I HAVE CONSIDERED THE ASSESSMENT ORDER OF THE A PPELLANT. THE FOLLOWING OBSERVATIONS ARE RAISED DURING THE APPELL ATE PROCEEDINGS. (I) THE APPELLANT HAS NOT FILED HIS APPEAL APPLICATION WITHIN STIPULATED TIME AND NOT FILED AN APPLICATION FOR CONDONATION OF DELAY. THE PROVISIONS OF SECTION 249(2) & (3) OF THE IT ACT, LAYS DOWN THAT:- THE APPEAL SHALL BE PRESENTED WITHIN THIRTY DAYS O F THE FOLLOWING DATE, THAT IS TO SAY,- (A) WHERE THE APPEAL IS UNDER SECTION 248, THE DATE OF PAYMENT OF THE TAX, OR] ITA NO.716, 717 & 804/A/2013(AY-2006-07) M/S. SHREE DARSHAN CORPORATION VS ACIT, CIR-7, SUR AT 4 (B) WHERE THE APPEAL RELATED TO ANY ASSESSMENT OR PENALTY, THE DATE OF SERVICE OF THE NOTICE OF DEMAN D RELATING TO THE ASSESSMENT OR PENALTY; [PROVIDED TH AT WHERE AN APPLICATION HAS BEEN MADE UNDER SECTION 146 FOR RE0PENING AN ASSESSMENT, THE PERIOD FROM THE DATE ON WHICH THE APPLICATION IS MADE TO THE DA TE ON WHICH THE ORDER PASSED ON THE APPLICATION IS SERVED ON THE ASSESSEE SHALL BE EXCLUDED, OR] (C) IN ANY OTHER CASE, THE DATE ON WHICH INTIMATION OF THE ORDER SOUGHT TO BE APPEALED AGAINST IS SERVED. (II) THE APPELLANT HAS SHOWN IN HIS APPLICATION FOR M NO.35 THAT HE IS PAID ALL TAXES IN FULL AS PER SHOWN INCO ME IN HIS RETURN OF INCOME AT THE TIME OF FILING OF THE APPEAL, BUT, ACCORDING TO INTIMATION RECEIVED FROM THE ACIT, CIR-7, SURAT ON 22.10.2012, THE APPELLANT HAS NOT PAID FULL TAXES AS PER ROI. AS PE R PROVISIONS OF THE SECTION 249(4) OF THE IT, ACT LAYS DOWN THAT:- NO APPEAL UNDER THIS CHAPTER SHALL BE ADMITTED UNL ESS AT THE TIME OF FILING OF THE APPEAL:- (A) WHERE A RETURN HAS BEEN FILED BY THE ASSESSEE, THE ASSESSEE HAS PAID THE TAX DUE ON THE INCOME RETURNED BY HIM; OR (B) WHERE NO RETURN HAS BEEN FILED BY THE ASSESSEE, THE ASSESSEE HAS PAID AN AMOUNT EQUAL TO THE AMOUNT OF ADVANCE TAX WHICH WAS PAYABLE BY HIM. IN VIEW OF THE ABOVE OBSERVATIONS, THE APPELLANT IS NOT ELIGIBLE TO FILE HIS APPEAL AGAINST THE ABOVE ORDER. HENCE THE APPEAL FILED BY THE APPELLANT IS INVALID AND THE APPEAL IS REJECTED. 4. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A), TH E ASSESSEE IS NOW IN APPEAL BEFORE US. 5. AT THE OUTSET, THE LEARNED AR SUBMITTED BEFORE U S THAT THE LEARNED CIT(A) HAD PASSED AN EX-PARTE ORDER WITHOUT GIVING THE ASSESSEE OPPORTUNITY OF BEING HEARD, THEREFORE, THE LEARNED AR PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LEAR NED CIT(A) AND PROVIDE THE ASSESSEE ONE MORE OPPORTUNITY FOR BEING HEARD. THE LEARNED DR STOUTLY OPPOSED TO THE SUBMISSION OF THE LEARNED AR AND STATED THAT THE ITA NO.716, 717 & 804/A/2013(AY-2006-07) M/S. SHREE DARSHAN CORPORATION VS ACIT, CIR-7, SUR AT 5 ASSESSEE HAD PREFERRED TO REMAIN ABSENT EVEN AFTER SUFFICIENT OPPORTUNITY WAS PROVIDED AND, THEREFORE, REQUESTED THE BENCH TO PROCEED WITH THE HEARING. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS ON RECORD. IT IS APPARENT FROM THE ORDER OF THE LEARNED CIT(A) THAT THE ASSESSEE HAD PREFERRED TO REMAIN ABSENT AT THE TIME OF HEARING DURING THE APPELLATE PROCEEDINGS AND ALSO DID NOT F ILE ANY APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE HI M. THEREFORE, THE CONTENTION OF THE LEARNED DR HAS MERITS. HOWEVER, I N THE INTEREST OF JUSTICE, WE PROVIDE ONE MORE OPPORTUNITY TO THE ASS ESSEE FOR BEING HEARD AND, THEREFORE, HEREBY REMIT THE CASE BACK TO THE LEARNED CIT(A) TO DECIDE THE CASE AS PER MERITS AND LAW AFTER AFFO RDING OPPORTUNITY TO THE ASSESSEE FOR BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO PROMPTLY CO-OPERATE WITH THE APPELLATE PROCEEDINGS BEFORE TH E REVENUE. 7. SINCE, THE OTHER TWO APPEALS OF THE ASSESSEE REL ATES TO LEVY OF INTEREST U/S 220 (2) OF THE ACT, WHICH IS CONSEQUEN TIAL, THESE APPEALS ARE ALSO REMITTED BACK TO THE FILE OF THE LEARNED CIT(A ) WITH SIMILAR DIRECTIONS. 8. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02-8-2013 SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - ITA NO.716, 717 & 804/A/2013(AY-2006-07) M/S. SHREE DARSHAN CORPORATION VS ACIT, CIR-7, SUR AT 6 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: DIRECT ON COMPUTER 31-07-13 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER 01-08-13 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: