M/s Sai Ram Developers, Surat V. The ACIT.,Cent.Circle-4, Surat

ITSSA 1/AHD/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 3054 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 10-10-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 09-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C PATWARI
• Assessee Lawyers: S N SOPARKR
• Keywords: Unexplained cash credit; Document seized
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT ME MBER I.T.(SS)A. NO.01/AHD/2012 A.Y. 2007-08 M/S SAI RAM DEVELOPERS 3/1204, GOLWAD, INDERPURA SURAT-395002 PAN-ABCFS8849Q APPELLANT VS. THE A.C.I.T., CENTRAL CIRCLE-4, SURAT RESPONDENT DEPARTMENT BY : SHRI D.C. PATWARI, CIT- D.R. ASSESSEE BY : SHRI S.N. SOPARKR, A.R. DATE OF HEARING : 10.10.2012 DATE OF PRONOUNCEMENT : 30.11.2012 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A)-II, AHMEDABAD DATED 18.10.2011. 2. ORIGINALLY THE ASSESSEE TOOK FOLLOWING EFFECTIVE GROUND:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION TO THE TUNE OF RS.36,52,000/- U/S 68 OF TH E ACT ON THE GROUND OF ALLEGED UNEXPLAINED CREDIT ENTRIES IN RESPECT OF BOOKING ADVANCES. SUBSEQUENTLY, THE ASSESSEE TOOK FOLLOWING ADDITIONA L GROUNDS:- THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CO NFIRMING VALIDITY OF ORDER PASSED BY THE LD. A.O. U/S 143(3) R.W.S. 153C OF THE ACT BOTH THE LOWER AUTHORITIES HAVE ERRED IN IGNORING PROVIS IONS OF S. 153C(1), WHICH GIVES JURISDICTION TO ASSESSING OFFICER TO AS SESS INCOME OF THE ASSESSEE, PROVIDED ANY DOCUMENT SEIZED DURING THE C OURSE OF SEARCH BELONGS TO THE ASSESSEE AND NOT TO THE PERSON SEARC HED. IN ABSENCE OF ANY MATERIAL SEIZED BELONGING TO THE ASSESSEE, T HE ASSESSING OFFICER ERRED IN ASSUMING JURISDICTION TO U/S 153C OF THE A CT. THE APPELLANT I.T.(SS)A. NO.01/AHD/2012 A.Y. 2007-08 2 PRAYS THAT THE ORDER OF THE LD. A.O. PASSED U/S 143 (3) R.W.S. 153C OF THE ACT IS BEYOND JURISDICTION AND DESERVES TO BE Q UASHED. 2. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING ADDITION U/S 68 ON THE GROUND OF ALLEGED UNEXPLAINED CREDIT ENTRIES OF RS.36,52,000/-. BOTH THE LOWER AUTHORITIES HAVE FA ILED TO APPRECIATE THAT DURING THE ASSESSMENT PROCEEDINGS U/S 153C ADD ITIONS CAN BE MADE ONLY ON THE BASIS OF INCRIMINATING DOCUMENTS F OUND DURING THE SEARCH. 3. AT THE TIME OF HEARING FIRST ADDITIONAL GROUND W AS NOT PRESSED AND IN RESPECT OF SECOND GROUND IT WAS SUBMITTED THAT THIS BEING LEGAL GROUND, THE SAME MAY BE ADMITTED IN VIEW OF THE DECISION OF HON BLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER 229 ITR 383. LD. D.R. VE HEMENTLY OPPOSED TO THIS SUBMISSION OF THE ASSESSEE AND PRAYED THAT IN CASE THIS ADDITIONAL GROUND IS ADMITTED, THE SAME MAY BE SENT BACK FOR ADJUDICATIO N BY LD. CIT(A) IN VIEW OF THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT I N THE CASE OF CIT VS. TULARAM HASSOMAL 298 ITR 22 (MP). HE ALSO CITED VA RIOUS ITAT ORDERS IN WHICH FOLLOWING THE RATIO AS LAID DOWN BY MADHYA PRADESH HIGH COURT, THE ADDITIONAL GROUND ADMITTED BY THE TRIBUNAL WERE SENT BACK FOR ADJUDICATION BY THE LD. CIT(A). 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD WE FIND THAT THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE IS A LEGAL GROUND AND GOES TO THE ROOT OF THE MATTER AND ALL THE FACTS IN RESPECT OF THIS GROUND ARE ALREADY ON RECORD. THEREFORE, IN VIEW OF THE DECISION OF HONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER (SUPRA) THIS GROUND IS ADMITTED. HOW EVER, SINCE THIS GROUND HAS BEEN TAKEN BY THE ASSESSEE FOR THE FIRST TIME B EFORE US AND THE SAME WAS NOT ADJUDICATED BY LD. CIT(A), THE SAME IS RESTORED BACK TO THE FILE OF LD. CIT(A) I.T.(SS)A. NO.01/AHD/2012 A.Y. 2007-08 3 FOR HIS ADJUDICATION IN VIEW OF THE DECISION OF HON BLE MADHYA PRADESH HIGH COURT IN THE CASE OF TULARAM HASSOMAL (SUPRA) WHERE IN FOLLOWING WAS HELD:- HELD, THAT THE TRIBUNAL HAVING PERMITTED THE ASSES SEE TO RAISE FOUR ADDITIONAL GROUNDS TREATING THEM TO BE LEGAL GROUND S IN APPEAL FOR THE FIRST TIME, SHOULD HAVE SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AND REMANDED THE CASE TO THE C OMMISSIONER OF INCOME-TAX (APPEALS) FOR DECIDING THE APPEAL AFRESH ON ALL THE ISSUES INCLUDING ON THOSE FOUR GROUNDS RAISED BY THE ASSES SEE IN THE APPEAL BEFORE THE TRIBUNAL RATHER THAN TO DECIDE THE ADDIT IONAL GROUNDS ON THE MERITS FOR THE FIRST TIME BY ITSELF. THEREFORE, THIS GROUND IS ALLOWED FOR STATISTICAL P URPOSE. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 30.11.2012 (ANIL CHATURVEDI) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER N.K. CHAUDHARY, SR. P.S. COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD 6. THE GUARD FILE BY ORDER AR,ITAT,AHMEDABAD