Shri Prakash S.Vyas, Baroda V. The Income tax Officer,Ward-2(2), Baroda

ITA 916/AHD/2011

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5793 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-03-2017
• Assessment Year: 1988-1989
• Appeal Filed On: 29-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAILASH D RATNOO HEARING CONCL
• Keywords: Loose papers
• Section: 143(3)

Judgement Text

I.T.A. NO. 916 /AHD/201 1 ASSESSMENT YEAR : 1988 - 89 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM ] I.T.A. NO. 916 /AHD/201 1 ASSESSMENT YEAR : 1988 - 89 P RAKASH S. VYAS , ............APPELLANT C/O. PARAS SERVICE STATION OPP. NOVINO BATTERIES, MAKARPU RA, BARODA 390 010. [PAN: A AZPV 7918 B ] VS INCOME TAX OFFICER WARD 2(2), BARODA . ...........RESPONDENT APPEARANCES BY URVASHI SHODHAN FOR THE APPELLANT KAILASH D RATNOO FOR THE RESPONDENT HEARING CONCLUDED ON: 01.03.2017 ORDER PRONOUNCE D ON : 31 .05.2017 O R D E R 1. BY WAY OF THIS APPEAL, THE A SSESS EE APPELLANT HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 20.01.2011 PASSED BY THE LEARNED CIT(A), IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 254 OF THE INCOME TAX ACT 1961, FOR THE ASSESSMENT YEAR 1988 - 89 . 2. GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOLLOWS : - 1. T HE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN HOLDING THAT DEPOSITS AMOUNTING TO RS.5,90,000/ - IN THE CASE OF DEEPAK TRADING COMPANY B ELONGED THE APPELLANT AND FURTHER ERRED IN CONFIRMING THE ADDITION OF RS.5,90,000/ - . 2. THE LEARNED C I T (APPEALS) FURTHER ERRED AN A MOUNT OF RS.3,03,599/ - RECORDED ON THE LOOSE PAPERS FOUND DURING THE COURSE OF EACH BELONGING TO YOUR APPELLANT AND FURTHER ERRED IN CONFIRMING THE ADDITION OF RS.3,03,599/ - . 3. THE LEARNED CIT (APPEALS) ERRED IN HOLDING THAT THE APPELLANT HAD EARNED PROFIT FR O M LIFTING OF SLOP OIL AMOUNTING TO RS. 2,53,753/ - AND FURTHER ERRED IN CONFIRMING THE ADDITION. I.T.A. NO. 916 /AHD/201 1 ASSESSMENT YEAR : 1988 - 89 PAGE 2 OF 3 3. THIS IS SECOND ROUND OF PROCEEDINGS BEFORE THIS TRIBUNAL. IN THIS CASE, ASSESSMENT UNDER SECTION 143(3) WAS ORIGINALLY FINALIZED ON 30 TH MARCH 1993 BUT CERTAIN ADDITIONS WERE MADE IN THE COURSE OF THE SAID ASSESSMENT. WHEN MATTER TRAVELLED IN APPEAL BEFORE THIS TRIBUNAL , THE TRIBUNAL REMITTED THE THREE ISSUES TO BE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE - NAMELY (I) ADDITION ON ACCOUNT OF DEPOSIT WITH DEEPAK TRADING, AMOUNTING TO RS 5,90,000; (II) ADDITION ON ACCOUNT OF DEPOSIT OF RS 3,03,599; AND (III) ADDITION ON ACCOUNT OF PROFIT ESTIMATED IN SLOP OIL AMOUNTING TO RS 2,53,735. WHILE DOING SO, THE TRIBUNAL OBSERVED THAT APROPOS GROUND NOS. 11 AND 13 (I.E. IN DELETING THE ADDITION OF RS 5,90, 000 MADE ON ACCOUNT OF DEPOSIT WITH DEEPAK TRADING, AND IN DELETING THE ADDITION OF RS 3,03,599 MADE ON ACCOUNT OF DEPOSIT WITH DEEPAK TRADING), IN RESPECT OF DEPOSIT WITH DPPL, BOTH PARTIES AGREED THAT SIMILAR ISSUE IS BEING TAKEN UP SEPARATELY IN THE HAN DS OF DPPL AND THAT THE SAME IS SET ASIDE AND WE RESTORE THE ISSUE TO THE FILE OF THE AO FOR DE NOVO ADJUDICATION CONSEQUENT TO THE OUTCOME IN THE CASE OF DPPL . THE TRIBUNAL ALSO OBSERVED, IN RESPECT OF ADDITION ON ACCOUNT OF PROFIT ESTIMATED IN SLOP O IL AMOUNTING TO RS 2,53,735, THAT SINCE THE ISSUE RELATING TO DEEPAK TRADING CO , I.E. GROUND NO. 11 AND 13 HAVE BEEN SET ASIDE AS STATED SUPRA, FOLLOWING THE SAME, GROUND NO. 12 BEING RELATED TO DEEPAK TRADING CO, WE SET ASIDE THIS ISSUE ALSO AND RESTORE THE SAME BACK TO THE AO . HOWEVER, WHEN THIS MATTER TRAVELLED BACK TO THE ASSESSING OFFICER, THE ASSESSING OFFICER SIMPLY REITERATED THESE ADDITIONS. THE ASSESSEE S PLEA THAT NO SUCH ADDITIONS, AS RELATABLE TO ITEM (I) AND (II) ABOVE WERE FINALLY MADE IN THE HANDS OF DPPL, WHICH HAD AT SOME STAGE TAKEN OVER DEEPAK TRADING, DID NOT IMPRESS THE ASSESSING OFFICER. IT WAS ALSO EXPLAINED THAT, IN THE LIGHT OF DIRECTIONS OF THE TRIBUNAL REGARDING DEPENDENCE ON THE OUTCOME IN PROCEEDINGS IN DPPL COUPLED WITH THE FACT THAT NO ADDITIONS WERE MADE IN THE HANDS OF DPPL, NO ADDITIONS CAN BE MADE. THE ASSESSING OFFICER DISREGARDED THESE SUBMISSIONS AND PROCEEDED TO REITERATE THE ADDITIONS AS WERE MADE IN THE ORIGINAL PROCEEDINGS. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT, UNLIKE AS IN THE CASE BEFORE HIS PREDECESSOR IN THE FIRST ROUND, DID NOT COME TO THE RESCUE OF THE ASSESSEE. HE CONFIRMED THE ACTION OF THE ASSESSING OFFICER. THE ASSESSEE IS AGGRIEVED AND IS IN APPEAL BEFORE THE TRIBUNAL O NCE AGAIN. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 5. I HAVE NOTED THAT IN THE FIRST ROUND OF PROCEEDINGS, LEARNED CIT(A) HAD DELETED THE I MP UGNED ADDITIONS AND WHEN REVENUE CAME UP IN APPEAL AGAINST THE RELIEF SO GRANTED BY THE CIT(A), THE TRIBUNAL REMITTED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO REDECIDE THE MATTER IN THE LIGHT OF DEVELOPMENTS IN DPPL S CASE . WHEN NOTHING ADVERSE IS FOUND IN DPPL S CASE, THE RELIEF ALREADY GRANTED TO THE ASSESSEE COULD NOT HAVE BEEN REVERSED. THE REMAND WAS FOR A PARTICULAR AND LIMITED PURPOSE AND IT COULD NOT BE USED TO NEGATE THE RELIEF GRANTED BY THE CIT(A) WITHOUT ANYTHIN G BRING BROUGHT ON RECORD AGAINST THE SAME. IF THE ASSESSING OFFICER HAD ANY GRIEVANCE WITH THE DIRECTIONS OF THE TRIBUNAL, IT WAS OPEN TO HIM TO CHALLENGE THE SAME I.T.A. NO. 916 /AHD/201 1 ASSESSMENT YEAR : 1988 - 89 PAGE 3 OF 3 IN HIGHER JUDICIAL FORUMS, BUT THAT HAS NOT BEEN DONE AND THE DIRECTIONS OF THE TRIBUNAL HA VE ATTAINED FINALITY. HE CANNOT NOW GO BEYOND THESE DIRECTIONS AND SEEK THESE ADDITIONS BEING MADE AGAIN WITHOUT THE SUPPORT OF ADVERSE FINDINGS IN THE CASE OF DPPL. IT IS AN UNDISPUTED POSITION THAT NO ADVERSE MATERIAL HAS COME ON RECORD AS A RESULT OF D EVELOPMENTS IN DPPL S CASE. IN THIS VIEW OF THE MATTER, THE AUTHORITIES BELOW WERE INDEED UNJUSTIFIED IN TAKING THE STAND AS THEY HAVE TAKEN. THERE IS NO LEGALLY SUSTAINABLE FOUNDATION FOR THE IMPUGNED ADDITIONS BEING MADE ONCE AGAIN. I, THEREFORE, DEEM IT FIT AND PROPER TO VACATE THE ORDERS OF THE AUTHORITIES BELOW ON THIS POINT AND DELETE THE IMPUGNED ADDITIONS. 6. IN VIEW OF THE ABOVE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, I UPHOLD THE GRIEVANCES OF THE ASSESSEE. THE ASSESSING OFFICE R IS DIRECTED TO DELETE ALL THE THREE IMPUGNED ADDITIONS. THE ASSESSEE GETS THE RELIEF ACCORDINGLY. 7. IN THE RESULT, T HE APPEAL IS ALLOWED IN THE TERMS INDICATED ABOVE . PRONOUNCED IN THE OPEN COURT TODAY ON THE 31 ST DAY OF MAY , 2017 . SD/ - P RAMOD KUMAR (ACCOUNTANT MEMBER) DATED: AHMEDABAD, THE 31 ST DAY OF MAY , 2017. COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR IN COME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD