Rajeshkumar Chhaganlal Ni Co., Ahmedabad V. The ACIT., Cent.Circle-1(4), Ahmedabad

ITSSA 133/AHD/2007

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9528 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-03-2010
• Assessment Year: misc
• Appeal Filed On: 10-08-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: R K JINDAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER DATE OF HEARING: 08.03.10 DRAFTED ON:09.03.10 IT(SS)A NO.133/AHD/2007 & 134/AHD/2007 ASSESSMENT YEAR : 2007-2008 RAJESHKUMAR CHHAGANLAL NI CO., 23, ZAVERI CHAMBERS, ZAVERI WAD, RATANPOLE, AHMEDABAD-1 VS. ACIT, CENTRAL CIRCLE 1(4), AHMEDABAD. PAN/GIR NO. : AAFFR 2964 P (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI R.K. JINDAL A.R. RESPONDENT BY: SHRI C.K. MISHRA SR. D.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINS T THE SEPARATE ORDER OF THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS)-IV, AHMEDABAD, DATED 08.03.2007 AND 21.03 .2007 FOR ASSESSMENT YEAR 2007-08. THE APPEAL IN IT(SS)A NO.133/AHD/2007 WITH REGARD TO THE ADDITIONS CONFIR MED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND THE APPEAL IN IT(SS)A NO.134/AHD/2007 IS WITH REGARD TO THE LE VY OF PENALTY UNDER SECTION 158BFA(2). 2. IN THE QUANTUM APPEAL, THE ASSESSEE HAS TAKEN TH E FOLLOWING GROUNDS OF APPEAL:- 1. IN THE LAW AND IN THE FACTS AND CIRCUMSTANCES O F THE APPELLANTS CASE, LD.CIT(APPEALS) HAS GROSSLY ERRED IN ITA NO.133/AHD/2007 - 2 - CONFIRMING THE BLOCK ASSTT. ORDER. THE IMPUGNED ORD ER IS ILLEGAL AND REQUIRED TO BE QUASHED. 2. IN THE LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, LD. CIT(APPEALS) HAS GROSSLY ERRE D IN CONFIRMING AO'S ACTION IN TREATING ORDER OFFICIAL M ONEY RS.14,00,000/- AS UNACCOUNTED/UNEXPLAINED CASH. 3. LD. CIT(APPEALS) HAS GROSSLY ERRED IN CONFIRMING AO'S ACTION IN CHARGING SURCHARGE RS.16,800/- @ 2% ON THE TAX WITHOUT ANY AUTHORITY OF LAW. 4. THE LD. CIT(APPEALS) HAS ERRED IN CONFIRMING AO' S ACTION OF PROCEEDING U/S.158BFA[2] OF THE ACT. IN V IEW OF THE FACTS OF THE CASE, THE INITIATION OF IMPUGNED P ENALTY PROCEEDING REQUIRES TO BE QUASHED/VACATED. 3. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT THE ASSESSEE HAD FILED AN AFFIDAVIT OF DHIRUBHAI H. PATEL PARTNER OF RAJESHKUMAR CHHAGANLAL & CO. DA TED 30.11.2005 SWORN BEFORE THE NOTARY, GOVERNMENT OF GUJARAT(INDIA), BEFORE THE LEARNED COMMISSIONER O F INCOME TAX(APPEALS) TOGETHER WITH SUBMISSIONS WITH ENCLOSU RE OF 225 PAGES, WHICH WAS NOT CONSIDERED BY THE LEARNED COMM ISSIONER OF INCOME TAX(APPEALS) WHILE DISPOSING OF THE APPEA L FOR THE REASON THAT THE AFFIDAVIT WAS NOT FILED BEFORE THE LEARNED ASSESSING OFFICER. IT WAS SUBMITTED THAT THE AFFIDA VIT COULD NOT BE FILED BEFORE THE AO AS THE SAME WAS NOT AVAILABL E AT THAT TIME AND NO SUFFICIENT OPPORTUNITY WAS ALLOWED TO P RODUCE THE SAME. HE ALSO SUBMITTED THAT THE AFFIDAVIT GOES TO THE ROOT OF THE MATTER AND FOR PROPER ADJUDICATION ADMISSION OF THE AFFIDAVIT IS NECESSARY. IT WAS THEREFORE, PRAYED THAT THE MAT TER SHOULD BE RESTORED BACK TO THE FILE OF THE LEARNED COMMISSION ER OF INCOME TAX(APPEALS) FOR DECIDING THE APPEAL OF THE ASSESSE E AFTER CONSIDERING THE EVIDENCES FILED BEFORE HIM AND ALSO THE AFFIDAVIT OF THE PARTNER OF THE ASSESSEE FIRM. ITA NO.133/AHD/2007 - 3 - 4. LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT HAVE ANY OBJECTION TO THE ABOVE SUBMISSION OF THE LEARNED AU THORISED REPRESENTATIVE OF THE ASSESSEE. 5. AFTER HEARING BOTH THE PARTIES, WE FIND THAT LEA RNED COMMISSIONER OF INCOME TAX(APPEALS) WHILE DECIDING THE APPEAL OF THE ASSESSEE HAD NOT CONSIDERED THE SUBMISSIONS AND EVIDENCES TOGETHER WITH THE AFFIDAVIT OF THE PARTNE R OF THE FIRM FILED BEFORE HIM. BOTH THE PARTIES BEFORE US HAVE EXPRESSED THAT THEY SHALL NOT HAVE ANY GRIEVANCE IF THE MATTER IS RESTORED BACK TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME T AX(APPEALS) FOR ADJUDICATING THE APPEAL AFRESH AFTER TAKING INT O CONSIDERATIONS THE SUBMISSION AND EVIDENCES FILED B Y THE ASSESSEE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). WE THEREFORE, SET ASIDE THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND REMAND THE MATTER BACK TO HIS FILE TO ADJUDICATE THE APPEAL OF THE AS SESSEE AFRESH AS PER LAW AFTER TAKING INTO ACCOUNT THE EVIDENCES AND MATERIALS FILED BY THE ASSESSEE INCLUDING AFFIDAVIT AFTER AL LOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. THE APPEAL IN IT(SS)A NO.134/AHD/2008 RELATES TO LEVY OF PENALTY UNDER SECTION 158BFA[2] OF THE ACT. SINCE, WE HAVE RESTORED THE APPEAL REGARDING THE ADDITIONS SUSTAIN ED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOR DEC IDING THE SAME AFRESH. THIS APPEAL IS ALSO RESTORED BACK TO T HE FILE OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOR DEC IDING THE SAME AFRESH IN LIGHT OF THE DECISION TAKEN IN QUANT UM APPEAL. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR THE STATISTICAL PURPOSES. ITA NO.133/AHD/2007 - 4 - ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 12/03/2010. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT M EMBER AHMEDABAD; DATED 12/03/2010 PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS) 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD