The ACIT, Mehsana Circle, Mehsana V. Shri Ram Mine Chem Industries, Mehsana

ITSSA 116/AHD/2006

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 7907 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-12-2011
• Assessment Year: misc
• Appeal Filed On: 16-05-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JASBIR S CHOUHAN
• Keywords: Document seized; Documents seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI G.C. GUPTA, HONBLE VICE PRESIDENT AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T(SS). NO. 92/ AHD/2006 (BLOCK PERIOD 1989-90 TO 1998-99 & 1.4.99 TO 16.11.1999) SHREE RAM MINE HEM INDL. C/O MUKESH M PATEL & CO., 3-4, VITHALBHAI BHAVAN, NR. S P COLONY RLY CROSSING AHMEDABAD-380013 VS. ACIT, MEHSANA CIRCLE, MEHSANA IT(SS)NO.116/AHD/2006 (BLOCK PERIOD 1989-90 TO 1998-99 &1.4.99 TO 16.11.1 999) ACIT, MEHSANA CIRCLE, VS. SHREE RAM MINE HEM INDL . MEHSANA C/O MUKESH M PATEL & CO., 3-4, VITHALBHAI BHAVAN, NR. S P COLONY RLY CROSSING AHMEDABAD-380013 PAN/GIR NO. :AAGFS9560P (APPELLANT) .. (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI JASBIR S CHOUHAN, SR. DR DATE OF HEARING: 21.12.2011 DATE OF PRONOUNCEMENT: 30.12.2011 O R D E R PER SHRI A. K. GARODIA, AM:- THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AND THE REVENUE FOR THE BLOCK PERIOD FORM 01.04.1989 TO 16.11.1999 DIR ECTED AGAINST THE ORDER OF LD. CIT(A) XXI, AHMEDABAD DATED 17.02.200 6. I.T.(SS).NO. 92,116 /AHD/2006 2 2. NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF THE SERVICE OF NOTICE ON THE ASSESSEE AS PER THE ACKNOWLEDGEMENT A VAILABLE ON RECORD. AN ADJOURNMENT APPLICATION WAS SUBMITTED BY THE LD. A.R. OF THE ASSESSEE SHRI MUKESH M PATEL BUT SINCE IT IS VERY O LD APPEAL FILED IN THE YEAR 2006 AND MANY ADJOURNMENTS WERE ALLOWED, THIS ADJOURNMENT APPLICATION WAS REJECTED AND WE PROCEED TO DECIDE T HIS APPEAL EX-PARTE QUA THE ASSESSEE. 3. FIRST WE TAKE UP THE APPEAL FILED BY THE ASSESSE E IN IT(SS) NO.92/AHD/2006. SINCE NONE APPEARED ON BEHALF OF T HE ASSESSEE ON THE APPOINTED DATE OF HEARING, WE INFER THAT THE ASSESS EE IS NOT INTERESTED IN PROSECUTING HIS APPEAL AND HENCE THIS APPEAL OF THE ASSESSEE IS DISMISSED FOR WANT OF PROSECUTION. UNDER THESE CIRCUMSTANCES , IT IS INFERRED THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING HIS APPEAL A ND HENCE, THE SAME IS LIABLE TO BE DISMISSED FOR NON PROSECUTION. IN OUR ABOVE VIEW, WE FIND SUPPORT FROM THE FOLLOWING DECISIONS:- IN THE CASE OF CIT VS B.N. BHATTACHARGEE AND ANOTHE R, REPORTED IN 118 ITR 461 (RELEVANT PAGES 477 AND 478) WHEREIN TH EIR LORDSHIPS HAVE HELD THAT THE APPEAL DOES NOT MEAN MERELY FIL ING OF THE APPEAL BUT EFFECTIVELY PURSUING IT. IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS C IT 223 ITR 480 (M.P.) WHILE DISMISSING THE REFERENCE MADE AT THE I NSTANCE OF THE ASSESSEE IN DEFAULT MADE FOLLOWING OBSERVATION IN T HEIR ORDER:- IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS M ADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFERENC E, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. IN THE CASE OF CIT VS MULTIPLAN INDIA LIMITED; 38 ITD 320 (DEL), THE APPEAL WAS FILED BY THE REVENUE BEFORE THE TRIB UNAL, WHICH WAS I.T.(SS).NO. 92,116 /AHD/2006 3 FIXED FOR HEARING. BUT ON THE DATE OF HEARING, NOB ODY REPRESENTED THE REVENUE/APPELLANT NOR ANY COMMUNICATION FOR ADJ OURNMENT WAS RECEIVED. THERE WAS NO COMMUNICATION OR INFORMATIO N AS TO WHY THE REVENUE CHOSE TO REMAIN ABSENT ON DATE. THE TR IBUNAL ON THE BASIS OF INHERENT POWERS, TREATED THE APPEAL FILED BY THE REVENUE AS UNADMITTED IN VIEW OF THE PROVISIONS OF RULE 19 OF THE APPELLATE TRIBUNAL RULES, 1963. 4. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS DIS MISSED. 5. NOW, WE TAKE UP THE APPEAL FILED BY THE ASSESSEE IN IT(SS) NO.116/AHD/2006. 6. GROUND NO.1 OF THE REVENUES APPEAL IS AS UNDER: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DE LETING THE ADDITION MADE OF RS.27,58,899/- ON ACCOUNT OF UNDIS CLOSED INCOME OUT OF SUPPRESSION OF CLOSING STOCK. 7. LD. D.R. SUPPORTED THE ASSESSMENT ORDER. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. D. R. AND HAVE PERUSED THE MATERIAL AND HAVE GONE THROUGH THE ORDE RS OF AUTHORITIES BELOW. WE FIND THAT THIS ISSUE HAS BEEN DECIDED BY THE LD. CIT(A) AT PARA 7.4 OF HIS ORDER WHICH IS REPRODUCED BELOW: I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND PERUSED THE FACTS OF THE CASE. AS DISCUSSED IN EARLIER PARA S. I HAVE HOLD THAT THE ASSESSING OFFICER WAS JUSTIFIED IN DETERMINE TH E AMOUNT OF SALES FOR THE BLOCK PERIOD UNDER CONSIDERATION AND AS A RESULT OF THAT I HAVE CONFIRMED THE ADDITION OF RS.14,06,583/ - AND RS.30,90,646/- FOR THE PART OF F.Y.1998-99 AND F.Y. 1999-2000 RELEVANT FOR THE BLOCK YEAR. THESE AMOUNTS WERE WOR KED OUT BOTH THE SEIZED DOCUMENTS I.E. ANNEXURE 17 AND ANNEXURE 26 TOGETHER. I THEREFORE AGREE WITH THE CONTENTION OF THE APPELLAN T THAT THE AMOUNT OF CLOSING STOCK AS ON 31.3.99 AS PER ANNEXURE-26 C ANNOT BE ADDED SEPARATELY BECAUSE THIS IS APPEARING AS OPENING STO CK AS ON 1.4.99 AND WHICH HAS BEEN CONSIDERED FOR WORKING OUT THE A MOUNT OF SALES FOR WHICH THE PERIOD FROM 1.4.1999 UP TO THE DATE O F SEARCH. IN I.T.(SS).NO. 92,116 /AHD/2006 4 VIEW OF THIS, THE ADDITION MADE OF RS.27,68,899/- O F UNDISCLOSED INCOME ON ACCOUNT OF SUPPRESSION OF CLOSING STOCK I S DELETED. 9. WE FIND THAT THIS ADDITION WAS DELETED BY LD. CI T(A) ON THIS BASIS THAT THIS AMOUNT OF CLOSING STOCK AS ON 31.03.1999 CANNOT BE ADDED SEPARATELY BECAUSE THIS IS APPEARING AS OPENING STO CK AS ON 01.04.1999 AND IT HAS BEEN CONSIDERED FOR WORKING OUT AMOUNT O F SALES FROM 1/.4.99 TO THE DATE OF SEARCH AND ADDITION ON THIS ASPECT O F RS.27.58 LACS WAS DULY CONFIRMED BY HIM AND, THEREFORE, NO SEPARATE ADDITI ON ON ACCOUNT OF THIS DIFFERENCE IN VALUE OF STOCK IS CALLED FOR. CONSID ERING THE FACTS OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LD. CIT(A) ON THIS ISSUE . HENCE, GROUND NO.1 IS REJECTED. 10. GROUND NO.2 OF THE REVENUE IS AS UNDER: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DE LETING THE ADDITION MISCELLANEOUS APPLICATION DE OF RS.4,03,05 0/- BEING UNEXPLAINED EXPENSES CLAIMED BY THE ASSESSEE. 11. LD. D.R. SUPPORTED THE ASSESSMENT ORDER. 12. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. D .R. AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND T HAT THIS ISSUE HAS BEEN DECIDED BY THE LD. CIT(A) AS PER PARA 8.2 OF HIS OR DER WHICH IS REPRODUCED BELOW: I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND PERUSED THE FACTS OF THE CASE. AS DISCUSSED ON THE EARLIER PAR A, I HAVE CONFIRMED THE ADDITION OF RS.30,90,646/- AS UNDISCL OSED INCOME FOR THE F.Y. 1999-2000. I AGREE WITH THE CONTENTION OF THE APPELLANT THAT THE SOURCE OF EXPENDITURE OF RS.4,03,050/- WAS THIS UNDISCLOSED INCOME AVAILABLE WITH THE APPELLANT. T HEREFORE THIS ADDITION OF RS.4,03,050/- IS DELETED. 13. FROM THE ABOVE PARA OF THE ORDER OF LD. CIT(A), WE FIND THAT THIS ADDITION WAS DELETED BY LD. CIT(A) ON THIS BASIS TH AT THE ASSESSEE I.T.(SS).NO. 92,116 /AHD/2006 5 DESERVES THE BENEFIT OF THE TELESCOPING AGAINST ADD ITION CONFIRMED BY LD. CIT(A) OF RS.30.90 LACS. UNDER THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT NO INTERFERENCE IS CALLED FOR IN THE O RDER OF LD. CIT(A) ON THIS ISSUE ALSO. ACCORDINGLY, GROUND NO.2 OF THE R EVENUE IS ALSO REJECTED. 14. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. 15. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE ASSESSEE AND THE REVENUE ARE DISMISSED. 16. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (G. C. GUPTA) (A. K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER SP ORDER PRONOUNCED ON 30.12.2011 SD./- SD./- (G.C.GUPTA)VP (B.P.JAIN)AM 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 BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 21/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23/12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.23/12 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 30/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.30/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30/12/2011 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. ..