M/s. Laxmi Movers, RAJKOT-GUJARAT V. The Deputy Commissiner of Income Tax, Circle-2, JUNAGADH

ITSSA 118/RJT/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9053 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 21-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR I
• Assessee Lawyers: D R ADHIA R
• Keywords: Unexplained investment; Block assessment
• Section: 132

Judgement Text

I E, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. .. O, E O . . O , O BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAVA, AM IT (SS ) A NO . 11 8 /RJT/20 1 2 . AI I / BLOCK ASSESSMENT PERIOD 1985 - 86 TO 1995 - 96 UP TO 21.12.1995 M/S LAXMI MOVERS, C/O D R ADHIA, OM SHRI PADMALAYA BESIDE TRIKAMRAIJI HAVELI, 16, JAGNATH PLOT IMPERIAL PALACE, DR.YAGNIK ROAD, RAJKOT. PAN:ACJPM 6935H ( / APPELLANT) VS. DY. COMMISSIONER OF INCOME TAX , CIRCLE 1, RAJKOT . A / RESPONDENT AI /ASSESSEE BY SHRI D. R ADHIA R / REVENUE BY SHRI. AVINASH KUMAR I /DATE OF HEARING 8 .2. 2013 I / DATE OF PRONOUNCEMENT 15.2.2013 / ORDER .. O, E O / T. K. SHARMA, J. M THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 31.8.2012 OF THE LD.CIT(A) - IV , RAJKOT F OR THE BLOCK ASSESSMENT PERIOD 1985 - 86 TO 1995 - 96 UP TO 21.12.1995. IT(SS)A NO.118/RJT/2012. 2 2. FACTS IN BRIEF ARE THAT THE ASSESSEE IS A FIRM. IN THIS CASE, A SEARCH WAS CONDUCTED ON 21.12.1995. AO FRAMED THE ASSESSMENT U/S 158BC R.W.S.246A(1)(K) OF THE INCOME TAX ACT, 1961 (THE ACT) ON 23.12.2010 WHEREIN HE COMPUTED UNDI SCLOSED INCOME OF THE ASSESSEE AT RS.42,71,553/ - . ON THE FOLLOWING GROUNDS : 1. THE LD. AO HAS ERRED IN LAW AND FACTS IN DETERMINING INCOME ATRS.42,71,653/ - IN RESPECT OF THE FOLLOWING ADDITIONS EACH OF WHICH NEEDS DELETION 1 RS.23,000/ TREATING THE SAME AS UNEXPLAINED INVESTMENT RELATION TO AIR - CONDITIONER, TV, GENERATOR, TYPEWRITER, CAR TAPE ETC. 2 RS.1,25,000/ TREATING THE SAME AS UNEXPLAINED INVESTMENT RELATION TO FIAT CAR . 3. RS.1,88,000/ TREATING THE SAME AS UNEXPLAINED INVES TMENT TOWARDS SALARY 4. RS.27,05,900/ - TREATING THE SAME AS UNEXPLAINED INCOME AS PER LOOSE PAPER FILE SEIZED (A - 1) FROM SHRI KIRIT A SHAH 5. RS.50,000/ - TOWARDS EXPENSE DISALLOWED ON ACCOUNT OF TRAVELLING EXPENSES AND OTHER DISCREPANCIES. 6 . RS.26,652/ - CONSIDERING THE SAME AS EXCESS REMUNERATION TO THE PARTNERS. 7. RS.5,00,000/ - IN RESPECT OF AMOUNT OF RS.2,00,000/ - AND RS.3,00,000/ - BEING CREDIT BALANCE TO THE ASSESSEES ACCOUNT IN THE BOOKS OF M/S MONEY AND JOTTING THEREOF. 2. THE ASSESSMENT FRAMED BEING BAD IN LAW NEEDS ANNULMENT. 3. THE ASSESSMENT FRAMED BEING NOT IN ACCORDANCE WITH THE DIRECTION OF THE HONTAT NEEDS ANNULMENT. 4. TAKING INTO CONSIDERATION THE LEGAL, STATUTORY, FACTUAL AND ADMINISTRATIVE ASPECTS, NO ADDITION OF EACH OF THE ABOVE ITEMS MENTIONED AT PARA 1 OUGHT TO HAVE BEEN MADE. THE ADDITION NEED DELETION. IT(SS)A NO.118/RJT/2012. 3 5. WITHOUT PREJUDICE, THE ASSESSMENT MADE IS BAD IN LAW AND DESERVES ANNULMENT. 6. WITHOUT PREJUDICE, NO ADEQUATE, SUFFICIENT AND REASONABLE OPPORTUNITY HAS BEEN PROVIDED. THE ASSESSMENT NEEDS ANNULMENT. 7. THE APPELLANT CRAVES LE A VE TO ADD/ALTER AMEND AND /OR SUBSTITUTE ANY OR A L L GROUND OF APPEAL BEFORE THE ACTUAL HEARING TAKES PLACE 3. AGAINST THE AFORESAID ORDER, THE ASSESSEE FILED AN APPEAL BEF ORE THE LD. CIT(A), WHO BY HIS IMPUGNED ORDER DATED 31.8.2012 VIDE HIS OBSERVATIONS AND FINDING DISMISSED THE APPEAL OF THE ASSESSEE AS INVALID. THE OBSERVATIONS OF THE LD. CIT(A) ARE REPRODUCED BELOW: A SEARCH U/S 132 OF THE IT ACT WAS CARRIED OUT A T THE PREMISES OF APPELLANT ON 21.12.1 9 95. AS PER SECTION 246A(1)(K) OF THE IT ACT, THE ORDER U/S 158BC IN RESPECT OF THIS SEARCH INITIATED PRIOR TO 1.1.1997 CANNOT BE A SUBJECT MATTER OF APPEAL BEFORE THE LD. CIT(A). THE APPELLANT CAN FILE APPEAL AGAI NST SUCH ORDER U/S 158BC IN RESPECT OF SEARCH INITIATED AFTER 30.6.1 9 95 BUT BEFORE 1.1.19 9 7 BEFORE THE HONBLE ITAT ONLY AS PROVIDED IN SECTION 253(1)(B) OF THE IT ACT. THEREFORE , THIS APPEAL FILED BY THE APPELLANT BEFORE ME IS INVALID AGGRIEVED WITH T HE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING, SHRI D R ADHIA, THE LD. COUNSEL APPEARED FOR THE ASSESSEE AND CONTENDED THAT THE LD. CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE A S INVALID . HE CONTENDED THAT THE LD. CIT(A) BE DIRECTED TO DECIDE THE APPEAL ON MERITS. WE HAVE SPECIFICALLY ASKED THE COUNSEL OF THE ASSESSEE TO EXPLAIN AS TO HOW THE APPEAL OF THE ASSESSEE IS MAINTAINABLE BEFORE THE LD. CIT(A) AS SECTION 246A (1)(K) OF THE ACT SPECIFICALLY PROVIDES IT(SS)A NO.118/RJT/2012. 4 THAT THE ORDER U/S 158BC IN RESPECT OF SEARCH CANNOT BE PRIOR TO 1.1.1997 CANNOT BE A SUBJECT MATTER OF THE APPEAL BEFORE THE LD. CIT(A). IN THIS CASE, A SEARCH WAS CONDUCTED ON 21.12.195. NO REPLY WAS FURNISHED BY THE ASSE SSEES COUNSEL. WE, THEREFORE, ARE OF THE VIEW THE LD. CIT(A) IS LEGALLY AND FACTUALLY CORRECT IN DISMISSED THE APPEAL OF THE ASSESSEE AS INVALID. WE, DECLINE TO INTERFERE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER IS PRO NOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD SD ( .. BR / D. K. SRIVASTAVA) ( I.. I / T. K. SHARMA) ASSE / ACCOUNTANT MEMBER A R / JUDICIAL MEMBER / ORDER DATE 15. 2. 2013 . /RAJKOT SRL EJB B / COPY OF ORD ER FORWARDED TO: - 1. / APPELLANT - 2. A / RESPONDENT - 3. E V / CONCERNED CIT . 4. V - / CIT (A) . 5. AAE, I E, / DR, ITAT, RAJKOT 6. I / GUARD FILE. / B Y ORDER , TRUE COPY SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, RAJKOT.