M/s. Kruti Organisers Pvt. Ltd., Ahmedabad V. The ACIT.,Cent.Circle-1(2), Ahmedabad

ITSSA 148/AHD/2010

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0266 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 21-07-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 15-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMALENDRA VERMA
• Section: 153A; 68

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) IT(SS)A NO.148/AHD/2010 [ASSTT.YEAR : 2004-2005] M/S.KRUTI ORGANIZERS P. LTD. 2 ND FLOOR, KAYCREST OPP: GUJARAT GAS CO. LTD. NR. PARIMAL CROSSING, AHMEDABAD. PAN : AABCK 9339 C /VS. ACIT, CENT.CIR.1(2) AHMEDABAD. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI DEEPAK SONI + 2 3 )/ REVENUE BY : SHRI VIMALENDRA VERMA, CIT-DR 5 2 &(*/ DATE OF HEARING : 21 ST JULY, 2014 678 2 &(*/ DATE OF PRONOUNCEMENT : 08/08/2014 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSTT.YEAR 2004-2005 IS DIRECTED AGAINST THE OR DER OF THE CIT(A). 2. THE CONCISE GROUND NO.1 OF THE APPEAL OF THE ASS ESSEE IS AS UNDER: 1. THE CIT(A) ERRED IN NOT QUASHING THE ORDER PASS ED BY THE AO. THE ORDER BE QUASHED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE NOTICE UNDER SECTION 153C R.W.S. 153A WAS ISSUED IN THIS CASE AF TER EXPIRY OF TWO YEARS IT(SS)A NO.148/AHD/2010 -2- FROM THE DATE OF SEARCH ON 10.5.2006. HE SUBMITTED THAT A COMBINED NOTICE FOR ALL SIX YEARS WAS ISSUED BY THE AO, WHIC H WAS PATENTLY BAD IN LAW, AND THEREFORE ALSO THE ASSESSMENT SHOULD BE QU ASHED. THE ASSESSEE HAS FILED A COPY OF THE NOTICE UNDER SECTION 153C R .W.S. 153A OF THE ACT DATED 13.6.2008 IN COMPILATION FILED BEFORE THE TRI BUNAL. THE LEARNED DR HAS RELIED ON THE ORDERS OF THE AO AND THE CIT(A ). HE SUBMITTED THAT THIS ISSUE WAS NOT RAISED BY THE ASSESSEE BEFORE TH E LOWER AUTHORITIES, AND THEREFORE, SHOULD BE RESTORED TO THE FILE OF THE AO . 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ISSUE RAISED B Y THE ASSESSEE IN THIS GROUND OF THE APPEAL BEING LEGAL IN NATURE, HAS TO BE ADMITTED. HOWEVER, THIS ISSUE WAS NOT RAISED BY THE ASSESEE BEFORE THE AO AND THE CIT(A). ACCORDINGLY, WE ARE OF THE VIEW THAT IT SHALL BE IN THE INTEREST OF JUSTICE TO RESTORE THIS ISSUE TO THE FILE OF THE AO WITH DIREC TION TO DECIDE ABOUT THE LEGAL ISSUE REGARDING LEGALITY OF THE NOTICE DATED 13.6.2008 ISSUED BY THE DCIT AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARI NG TO THE ASSESSEE. 5. OTHER CONCISE GROUNDS OF THE APPEAL OF THE ASSES SEE ARE AS UNDER: 2.0 THE CIT(A) ERRED IN NOT DELETING ADDITION MADE BY THE AO BY INVOKING PROVISIONS OF SECTION 68. THE ADDITION IN VOKING PROVISIONS OF SECTION 68 IS ERRONEOUS AND CONTRARY TO THE FACT S. THE ADDITION MADE BY THE AO BE DELETED. 2.1 THE APPELLANT WITHOUT PREJUDICE TO ABOVE SUBMIT S THAT THE ADDITION OF RS.17,54,784/- IN ANY EVENT IS EXCESSIV E. THE APPELLANT SUBMITS THAT RELIEF BE ALLOWED AS PER PROVISIOSN OF LAW. 3.0 THE CIT(A) ERRED IN OBSERVING REGARDING HEAD O F INCOME IN RESPECT OF INCOME OF RS.1,30,391/-. INCOME OF RS.1 ,30,391/- BE DIRECTED TO BE ASSESSED UNDER HEAD PROFIT AND GAINS OF BUSINESS. IT(SS)A NO.148/AHD/2010 -3- 4.0 THE CIT(A) ERRED IN UPHOLDING DISALLOWANCE OF E XPENSES OF RS.5,79,872/-. THE APPELLANT SUBMITS THAT EACH AND EVERY EXPENDITURE WAS INCURRED FOR THE PURPOSE OF THE BUS INESS AND/OR FOR THE PURPOSE OF EARNING INCOME AND THEREFORE DEDUCTI BLE IN COMPUTATION OF INCOME. 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE MAIN ISSUE IN THIS GROUND OF THE APPEAL IS REGARDING ADDITION MAD E OF RS.17,54,784/- UNDER SECTION 68 OF THE ACT. HE SUBMITTED THAT IN THE CONNECTED CASE OF M/S.NAVRATNA ORGANIZERS & DEVELOPERS P. LTD., THE I SSUE HAS BEEN RESTORED BY THE TRIBUNAL TO THE FILE OF THE AO FOR FRESH ADJ UDICATION, AND THE ISSUE IN THIS GROUND OF THE APPEAL OF THE ASSESSEE MAY ALSO BE RESTORED TO THE FILE OF THE AO. THE LEARNED DR SUBMITTED THAT THE ISSUE IN THESE GROUNDS OF THE APPEAL OF THE ASSESSEE WERE RESTORED BY THE CIT(A) TO THE FILE OF THE AO, ALTHOUGH, THE CIT(A) HAS NO JURISDICTION TO RESTORE ANY ISSUE TO THE FILE OF THE AO IN ACCORDANCE WITH THE AMENDED PROVISION OF THE ACT. HE RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT SINCE THE LEGAL IS SUE RAISED REGARDING LEGALITY OF THE NOTICE DATED 13.6.2008 HAS BEEN RES TORED TO THE FILE OF THE AO, IT SHALL BE JUSTIFIED TO RESTORE OTHER ISSUES R AISED IN THE CONCISE GROUND NO.2 TO 4 OF THE APPEAL OF THE ASSESSEE TO THE FILE OF THE AO WITH DIRECTION TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH THE LA W AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSE. WE DIRECT ACCORDINGLY. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT