The ACIT, Circle-9, Ahmedabad V. Shri Ghanshyambhai M.Patel, Ahmedabad

ITA 860/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6691 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 29-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 18-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RIGNESH K DAS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI D.C. AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 29.4.11 DRAFTED ON: 29.4 .11 ITA NO.860/AHD/2009 ASSESSMENT YEAR : 2004-05 THE ACIT CIRCLE-9 AHMEDABAD VS. SHRI GHANSHYAMBHAI M.PATEL PROP.OF NARAYAN TRANSPORT D-11, KIRTI APARTMENT CIVIL ROAD, AHMEDABAD PAN/GIR NO. : ACAPP 3860 B ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI RIGNESH K.DAS, D.R. RESPONDENT BY: -NONE- O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF THE LEARNED CIT(APPEALS) -XV, AHMEDBAD DATED 06/01/2009 AND T HE SUBSTANTIVE GROUND WHICH IS GROUND NO.1; REPRODUCED BELOW:- 1. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS)-XI V, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.54,02,290/- MADE BY THE A.O. ON ACCO UNT OF UNEXPLAINED EXPENSES. 2. NO ONE APPEARED FROM THE SIDE OF THE RESPOND ENT-ASSESSEE. FROM THE ORDER OF THE ASSESSING OFFICER PASSED U/S .143(3) OF THE ACT DATED 30/11/2006 AND FROM THE ORDER OF THE CIT( A), IT IS EVIDENT ITA NO.860/AHD/ 2009 ACIT VS. SH.GHANSHYAMBHAI M.PATEL ASST.YEAR 2004-05 - 2 - THAT THE ASSESSEE HAS NOT CO-OPERATED WITH THE PROC EEDINGS. BEFORE THE FIRST APPELLATE AUTHORITY, NO ONE WAS PRESENT. FROM THESE TWO ORDERS OF THE LOWER AUTHORITIES, IT IS ALSO EVIDENT THAT FOR THE YEAR UNDER CONSIDERATION, I.E. A.Y.2004-05 THEY HAVE SIM PLY FOLLOWED THE PAST HISTORY FOR A.Y. 2003-04 IN ASSESSEES OWN CAS E AND IDENTICALLY REPEATED THE ADDITION. FOR REFERENCE, PARAGRAPH N O.5 OF CIT(A) IS REPRODUCED:- 5. GROUND NO.3 IS WITH RESPECT TO ADDITION OF RS.54,02,2980/-. THIS ADDITION HAS BEEN MADE BY TH E AO AS PER PARA 6 OF THE ASSESSMENT ORDER. THE AO DISALL OWED 15% OF THE TOTAL EXPENSES DEBITED OF RS.3,60,15,264. T HE LD.AR ON THE OTHER HAND STRONGLY RELIED ON THE APPELLATE ORD ER PASSED BY MY LD. PREDECESSOR IN AY 2003-04 VIDE HIS ORDER DATED 2.3.2007, IN WHICH SIMILAR ADDITION MADE BY THE AO HAS BEEN DELETED VIDE PARA 2.3 OF THE APPELLATE ORDER. REL YING ON THE DECISION OF MY LD. PREDECESSOR TAKEN IN AY 2003-04, THE ADDITION MADE BY THE AO IN AY 2004-05 ON SHEER ES TIMATE BASIS IS DIRECTED TO BE DELETED. 3. NOW BEFORE US, THERE IS DECISION OF RESPECTED CO -ORDINATE BENCH A AHMEDABAD WHEREIN THE ASSESSEE AS WELL AS THE REVENUE BOTH WERE IN CROSS APPEALS BEARING ITA NOS. 2062 & 2185/AHD/2007 FOR A.Y. 2003-04 ORDER DATED 26-10-20 07 THE APPEALS OF THE REVENUE AS WELL AS THE ASSESSEE BOTH WERE RESTORED BACK TO THE FILE OF AO WITH THE FOLLOWING OBSERVAT ION:- 5. IT IS NOTICED FROM THE ORDER OF CIT(A) AS WELL AS THE ARGUMENTS OF THE LD. DEPARTMENTAL REPRESENTATIVE TH AT THE CIT(A) HAS MERELY ACCEPTED THESE EXPENSES THAT THE BOOKS OF ACCOUNTS HAVE BEEN PRODUCED BEFORE THE ASSESSING OF FICER AND ITA NO.860/AHD/ 2009 ACIT VS. SH.GHANSHYAMBHAI M.PATEL ASST.YEAR 2004-05 - 3 - THE ASSESSING OFFICER COULD NOT POINT OUT ANY DEFEC T THEREIN HE HAS NOT DISCUSSED WHETHER THE BILLS AND VOUCHERS WE RE PRODUCED OR NOT NOR THAT THIS EXPENDITURE IS GENUIN E OR NOT. THERE IS SPECIFIC FINDING BY THE ASSESSING OFFICER THAT THE ASSESSEE COULD NOT PRODUCE BILLS AND VOUCHERS AND I N THE ABSENCE THE SAME THE ASSESSING OFFICER DELETED 1/10 TH OF THE TOTAL EXPENDITURE ON THIS ACCOUNT. IN VIEW OF THE SE FACTS AND CIRCUMSTANCES WE FAIRLY FEEL THAT THIS ISSUE NEED R E- EXAMINATION AT THE LEVEL OF THE ASSESSING OFFICER A ND THE ASSESSEE MUST BE PROVIDED ONE MORE OPPORTUNITY TO SUBSTANTIATE HIS CLAIM WITH RESPECT TO DOCUMENTARY EVIDENCES. IF THE ASSESSEE WILL BE ABLE TO PROVE THIS EXPENDIT URE, THE ASSESSING OFFICER WILL ALLOW, OTHERWISE HE WILL UPH OLD THIS ADDITION OF 1/10 TH DISALLOWANCE. THIS ISSUE IS SET ASIDE TO THE FILE OF ASSESSING OFFICER. 4. RESPECTFULLY FOLLOWING THE ABOVE DECISION, FOR T HIS YEAR AS WELL, THE ISSUE IS RESTORED BACK TO THE FILE OF TH E AO TO BE DECIDED DE NOVO AS PER THE ABOVE DIRECTIONS. THIS GROUND O F THE REVENUE MAY BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE REVENUE IS TREATED A S ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 29/ 4 /2011. SD/- SD/- ( D.C. AGRAWAL) ( MUKUL KR. SH RAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED 29 / 04 /2011 T.C. NAIR, SR. PS ITA NO.860/AHD/ 2009 ACIT VS. SH.GHANSHYAMBHAI M.PATEL ASST.YEAR 2004-05 - 4 - COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XV, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..29.4.2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29.4.2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S29.4.11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 29.4.11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER