Rahemutalla Restaurants, Sangli V. Dy. CIT, Circle-1, Sangli

ITA 955/PUN/2013

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9527 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-01-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 955 /P U N/201 3 / ASSESSMENT YEAR : 20 09 - 10 RAHEMUTALLA RESTAURANTS, SHIVAJI ROAD, TAL. : MIRAJ, DISTT. - SANGLI PAN : AAHFR5278G ....... / APPELLANT / V/S. DY. COMMISSIONER OF INCOME TAX, CIRCLE 1, SANGLI / RESPONDENT . / ITA NO .2177/PUN/2013 / ASSESSMENT YEAR : 2010 - 11 RAHEMUTALLA RESTAURANTS, SHIVAJI ROAD, TAL. : MIRAJ, DISTT. - SANGLI PAN : AAHFR5278G ....... / APPELLANT / V/S. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 1, SANGLI / RESPONDENT ASSESSEE BY : S HRI PRAMOD SHINGTE REVENUE BY : DR. VIVEK AGGARWAL / DATE OF HEARING : 0 2 - 01 - 2018 / DATE OF PRONOUNCEMENT : 03 - 01 - 201 8 2 ITA NO S.955 & 2177/PUN/2013, A.YS. 2009 - 10 & 2010 - 11 / ORDER PER VIKAS AWASTHY, JM : ITA NO. 955/PUN/2013 BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMI SSIONER OF INCOME TAX (APPEALS) , KOLHAPUR DATED 22 - 03 - 2013 FOR THE ASSESSMENT YEAR 2009 - 10 AND ITA NO. 2177/PUN/2013 BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) DATED 21 - 11 - 2013 FOR THE ASSESSMENT YEAR 2010 - 11. 2. BOTH THE APPEALS WERE DECIDED BY THE TRIBUNAL VIDE COMMON ORDER DATED 30 - 11 - 2016. HOWEVER, GROUND NO. 2 RAISED IN BOTH THE APPEALS WERE SOMEHOW NOT DWELLED UPON. THE ASSESSEE FILED MISCELLANEOUS APPLICATIONS SEEKING RECTIFICATION OF THE ORDER DATED 30 - 11 - 2016 FOR ADJUDICATING GROUND NO. 2 RAISED IN APPEALS FOR ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 , RESPECTIVELY . THE TRIBUNAL VIDE ORDER DATED 15 - 09 - 2017 IN MA NOS. 46 & 49/PUN/2017 RECALLED THE ORDER OF TRIBUNAL DATED 30 - 11 - 2016 FOR LIMITED PURPOSE OF ADJUD ICATED GROUND NO. 2 RAISED IN THE RESPECTIVE APPEALS BY THE ASSESSEE. HENCE, IN THE PRESENT PROCEEDINGS WE WOULD BE DEALING WITH ONLY GROUND NO. 2 RAISED IN THE APPEAL S FOR ASSESSMENT YEARS 2009 - 10 AND 2010 - 11. 3. THE G ROUND NO.2 RAISED IN THE APPEAL BY ASSESSEE FOR ASSESSMENT YEAR 2009 - 10 READS AS UNDER : 2.1 THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT INSTEAD OF WDV OF THE ASSET, ACTUAL COST OF INVESTMENT IN BUILDING AND FURNITURE IS REQUIRED TO BE DEDUCTED FROM THE COST OF THE SAID ASSETS DE TERMINED BY THE DVO FOR ARRIVING AT UNACCOUNTED INVESTMENT IN BUILDING AND FURNITURE. 3 ITA NO S.955 & 2177/PUN/2013, A.YS. 2009 - 10 & 2010 - 11 2.2 THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE AFORESAID CLAIM MADE BY THE ASSESSEE. 2.3 THE LEARNED CIT(A)/AO MAY BE DIRECTED TO CONSIDER THE ACTUAL COST OF THE A SSETS INCURRED BY THE ASSESSEE, WHILE ARRIVING AT THE FIGURE OF UNDISCLOSED INVESTMENT IN PLACE OF W.D.V. OF SUCH ASSETS. THE G ROUND NO. 2 RAISED IN THE APPEAL BY ASSESSEE FOR ASSESSMENT YEAR 2010 - 11 READS AS UNDER : 2.1 THE LEARNED CIT(A) FAILED T O APPRECIATE THE FACT THAT INSTEAD OF WDV OF THE ASSET, ACTUAL COST OF INVESTMENT IN BUILDING AND FURNITURE IS REQUIRED TO BE DEDUCTED FROM THE COST OF THE SAID ASSETS DETERMINED BY THE DVO FOR ARRIVING AT UNACCOUNTED INVESTMENT IN BUILDING AND FURNITURE. 2.2 THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE AFORESAID CLAIM MADE BY THE ASSESSEE. 2.3 THE LEARNED CIT(A)/AO MAY BE DIRECTED TO CONSIDER THE ACTUAL COST OF THE ASSETS INCURRED BY THE ASSESSEE, WHILE ARRIVING AT THE FIGURE OF UNDISCLOSED INVESTMENT IN PLACE OF WDV OF SUCH ASSETS. 2.4 CONSIDERING THE RELIEF AVAILABLE TO ASSESSEE AS PER GROUND NO. 1.1 TO 1.3 AND 2.1 TO 2.3 THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN BUILDING AND INTERIOR DECORATION BE RESTRICTED TO RS.9,13,599/ - . A PERUSAL OF THE ABOVE GROUNDS SHOW THAT THE ISSUE RAISED IN BOTH THE ASSESSMENT YEARS IN GROUND NO. 2 IS IDENTICAL. 4 . SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO TAKE NOT E OF THE FACT THAT INSTEAD OF WRITTEN DOWN VALUE (WDV) OF THE ASSET , ACTUAL COST OF INVESTMENT IN BUILDING AND FURNITURE WAS REQUIRED TO BE DEDUCTED FROM THE COST OF ASSETS DETERMINED BY DVO WHILE DETERMINING UNACCOUNTED INVESTMENT IN BUILDING AND FURNITUR E. THE ASSESSEE HAD RAISED THIS OBJECTION BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, THE 4 ITA NO S.955 & 2177/PUN/2013, A.YS. 2009 - 10 & 2010 - 11 COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO ADJUDICATE THIS GROUND. THE LD. AR REFERRED TO GROUND NO. 2 RAISED IN THE GROUNDS OF APPEAL BEFORE THE COMMISSIONER OF INCOME TAX ( A PPEALS ) IN RESPECT OF BOTH THE ASSESSMENT YEARS UNDER APPEAL. THE LD. AR CONTENDED THE ISSUE NEEDS TO BE RESTORED TO THE FILE OF COMMISSIONER OF INCOME TAX (APPEALS) FOR ADJUDICATION OF GROUND NO. 2. 5 . DR. VIVEK AGGARWAL R EPRESENTING THE DEPARTMENT FAIRLY ADMITTED THAT GROUND NO. 2 RAISED IN BOTH THE APPEALS BY THE ASSESSEE HAS NOT BEEN ADJUDICATED BY THE COMMISSIONER OF INCOME TAX (APPEALS). 6 . W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE IMPUGNED ORDERS. THE SOLITARY ISSUE BEFORE US IN THE PRESENT PROCEEDINGS IS GROUND NO. 2 THAT HAS BEEN REPRODUCED HERE - IN - ABOVE RELATING TO DETERMINATION OF VALUE OF UNACCOUNTED INVESTMENT. BOTH THE SIDES ARE UNANIMOUS IN STATING THAT THE FIR ST APPELLATE AUTHORITY HAS FAILED TO CONSIDER THE PLEA OF ASSESSEE RAISED IN GROUND NO. 2 OF THE APPEAL. WITHOUT COMMENTING ON MERITS OF THE ISSUE , WE DEEM IT APPROPRIATE TO REMIT TH E ISSUE CONTAINED IN GROUND NO. 2 OF THE APPEAL BACK TO THE FILE OF COMMI SSIONER OF INCOME TAX (APPEALS) FOR ADJUDICATION. THE COMMISSIONER OF INCOME TAX (APPEALS) SHALL GRANT REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE DECIDING THE GROUND NO. 2 RAISED IN THE APPEAL FOR ASSESSMENT YEAR 2009 - 10 , AS WELL AS ASSESSME NT YEAR 2010 - 11. ACCORDINGLY, GROUND NO. 2 RAISED BY THE ASSESSEE IN BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSE. 5 ITA NO S.955 & 2177/PUN/2013, A.YS. 2009 - 10 & 2010 - 11 7 . IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 03 RD DAY OF JANUARY, 201 8 . SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 03 RD JANUARY, 2018 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) , KOLHAPUR 4. / THE CIT - I /II, KOLHAPUR/CIT (CENTRAL), PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE