The Surat District Co.Op.Milk Producers Union Ltd., V. The ACIT., Circle-9,

ITA 877/AHD/2004

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6662 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 19-05-2011
• Assessment Year: 1994-1995
• Appeal Filed On: 18-03-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MITESH MODI
• Keywords: Opportunity of being heard; Period of limitation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND BHAVNESH SAINI, JUDICIAL MEMBER) ITA NO.877 AND 878/AHD/2004 [ASSTT. YEAR : 1994-1995 AND 1995-1996] THE SURAT DISTRICT CO-OP. MILK PRODUCERS UNION LTD. SAMUL DAIRY ROAD STATION ROAD, SURAT. VS. ACIT, CIR.9 SURAT. ITA NO.1011 AND 2100/AHD/2005 [ASSTT. YEAR : 1994-1995 AND 1995-1996] THE SURAT DISTRICT CO-OP. MILK PRODUCERS UNION LTD. SAMUL DAIRY ROAD STATION ROAD, SURAT. VS. ITO, WARD-9(4) SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MITESH MODI REVENUE BY : SHRI MAHESH KUMAR O R D E R PER G.D. AGARWAL, VICE-PRESIDENT : THESE APPEALS ARE TWO SETS OF APPEALS FILED BY THE ASSESSEE ONE SET AGA INST QUANTUM AND THE OTHER AGAINST IMPOSITION OF PENALTY PROCEEDINGS UND ER SECTION 271(1)(C) OF THE IT ACT BY THE ORDERS OF THE COMMISSIONER OF INCOME TAX(APPEALS), SURAT. 2. AT THE TIME OF HEARING BEFORE US, IT IS POINTED OUT BY THE LEARNED DR THAT IN THESE APPEALS BY THE ASSESSEE, THE ADDITION S ARE MOSTLY ON FACTUAL GROUND AND THE ORDER OF THE CIT(A) ON ALL THE ISSUE S ARE NOT SPEAKING ORDER. HE THEREFORE STATED THAT THE MATTER IS REQU IRED TO BE SENT BACK TO THE FILE OF THE CIT(A) FOR PASSING SPEAKING ORDER. HE ALSO STATED THAT HE IS WELL AWARE THAT THIS IS SECOND ROUND OF APPEAL BUT UNLESS CIT(A) PASSES SPEAKING ORDER, IT WOULD BE VERY DIFFICULT FOR THE ITAT TO ADJUDICATE THE ITA NO.877 AND 878/AHD/2004 AND ITA NO.1011 AND 2100/AHD/2005 -2- FACTUAL ISSUES DIRECTLY FROM THE ASSESSMENT ORDER. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, AGREED WITH THE LE ARNED DR THAT THE ISSUE IS FACTUAL AND PROPER APPRECIATION OF EACH AND EVER Y FACT IS ESSENTIAL. HE HOWEVER STATED THAT IN FACT THE AO HAS ALSO NOT PRO PERLY APPRECIATED THE FACTS OF THE CASE AND MADE HUGE ADDITIONS ON PRESUM PTION/ESTIMATION. HE POINTED OUT THAT THE ADDITION OF RS.1,41,12,704/- I N ONE YEAR AND THE ADDITION OF RS.1,75,59,628/- IN OTHER YEAR IS MADE FOR ALLEGED UNACCOUNTED SALE OF MILK. THIS ADDITION IS PURELY ON ESTIMATED BASIS WITHOUT PROPERLY APPRECIATING THE FACTS. HE FURTHE R STATED THAT ON SIMILAR FACTS NO ADDITION FOR UNACCOUNTED SALE IS MADE IN A Y 1997-98, THOUGH IN THAT YEAR ALSO ASSESSMENT ORDER WAS PASSED UNDER SE CTION 143(3) OF THE ACT. HE THEREFORE SUGGESTED THAT IF THE MATTER IS REQUIRED TO BE SENT BACK, THEN IT WOULD BE MORE APPROPRIATE THAT INSTEAD OF T HE CIT(A), IT IS SENT BACK TO THE FILE OF THE AO. THE LEARNED DR HAS NO OBJECTION TO THIS SUGGESTION OF THE LEARNED COUNSEL THAT THE MATTER M AY BE SENT TO THE FILE OF THE AO FOR FRESH ADJUDICATION 3. IN VIEW OF THE ABOVE SUBMISSIONS OF BOTH THE SID ES, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW IN BOTH THE YEARS A ND RESTORE THE MATTER BACK TO THE FILE OF THE AO. WE DIRECT HIM TO RE-AD JUDICATE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION, THE A O WILL ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE THE MATTER IS VERY OLD I.E. A.Y.1994-95 AND 1995-96, WE WILL ADVICE THE AO THAT HE SHOULD START SET ASIDE PROCEEDINGS AT AN EARLY DATE AND SHOULD C OMPLETE THE SAME WITHOUT WAITING FOR PERIOD OF LIMITATION. 4. AS REGARDS THE SECOND SET OF APPEALS AGAINST IMP OSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, SINCE WE HAVE S ET ASIDE THE ORDERS OF ITA NO.877 AND 878/AHD/2004 AND ITA NO.1011 AND 2100/AHD/2005 -3- THE AUTHORITIES IN QUANTUM, THE PENALTY UNDER SECTI ON 271(1)(C) BASED UPON THE SAME DOES NOT SURVIVE, ACCORDINGLY, THE PE NALTY LEVIED UNDER SECTION 271(1)(C) FOR BOTH THE YEARS IS CANCELLED. HOWEVER, THE AO WILL BE AT LIBERTY TO REINITIATE THE PENALTY PROCEEDINGS AFTER COMPLETING SET ASIDE ASSESSMENT IF THE FACTS OF THE CASE SO WARRAN T. 5. IN RESULT, ALL THE APPEALS OF ASSESSEES ARE DEE MED TO BE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 19 TH MAY, 2011 SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 19-05-2011 C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD 1. DATE OF DICTATION : 19-05-2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER. : 19-05-2011 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 DICTATING MEMBER FOR PRONOUNCEMENT. : 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER : 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. : 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK. : 19-05-2011 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. : 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER. : 10. DATE OF DESPATCH OF THE ORDER :