Shri Kanubhai Joitaram Patel, Ahmedabad V. The DY.CIT, Circle-6, Ahmedabad

ITSSA 153/AHD/2005

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7826 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-01-2012
• Assessment Year: misc
• Appeal Filed On: 02-05-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARTAR SINGH
• Assessee Lawyers: A M TALSANIA
• Keywords: Opportunity of being heard; Principle of natural justice; Retrospective amendment

Judgement Text

IT(SS)A.NO.153/A/2 005 BLOCK PERIOD 1-4-86 TO 11-1 0-95) 1 IN THE INCOME TAX APPELLATE TRIBUNALA BENCH,AHMED ABAD. (BEFORE SHRI G.C. GUPTA,VICE PRESIDENT AND SHRI B. R.BASKARAN, AM) I.T.(SS) A.NO.153/AHD/2005 (BLOCK PERIOD: 1-4-86 TO 11-10-1995) KANUBHAI JOITARAM PATEL, 23, NEW RATNAKAR SOCIETY-I, OPP. ANNAPURNA FLATS, RANIP, AHMEDABD. (APPELLANT) VS. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-6, KENDRIYA PRATAYAKSHA HOUSE, OPP.OLD SACHIVALAYA, AMBAWADI, AHMEDABAD. (RESPONDENT) PAN: ABGPP 6894G APPELLANT BY : SHRI A. M. TALSANIA. RESPONDENT BY : SHRI KARTAR SINGH, CIT (DR) DATE OF HEARING : 16-1-2012 DATE OF PRONOUNCEMENT : 19-1-2012 ( (( ( )/ )/)/ )/ ORDER PER: SHRI B.R.BASKARAN, ACCOUNTANT MEMBER:- THE ASSESSEE HAS FILED THIS DIRECT APPEAL AGAINST THE ORDER DATED 31.3.2005 PASSED BY THE ASSESSING OFFICER U/S 158BC R.W.S. 250 OF TH E INCOME TAX ACT IN THE SET ASIDE PROCEEDINGS IN PURSUANCE OF THE ORDER OF THE ITAT DATED 22.11.2002. 2. IN THE CONCISE GROUNDS OF APPEAL, THE ASSES SEE HAS RAISED 14 GROUNDS. BESIDES THAT, HE HAS ALSO RAISED ONE MORE ADDITIONAL GROUND. ALL THESE GROUNDS RELATE TO VARIOUS ADDITIONS MADE IN THE HANDS OF THE ASSESSEE. THE MA IN CONTENTION OF THE ASSESSEE IS THAT THE ITAT, IN ITS EARLIER ORDER DATED 22.11.2002, HA D SET ASIDE ALL THE ISSUES TO THE FILE OF THE ASSESSING OFFICER, WHERE AS THE ASSESSING OFFIC ER HAS TAKEN THE VIEW THAT THE ISSUE RELATING TO THE AGRICULTURAL INCOME ALONE HAS BEEN SET ASIDE. HE FURTHER SUBMITTED THAT THE ASSESSING OFFICER DID NOT CONSIDER THE VARIOUS EVID ENCES FURNISHED BY THE ASSESSEE IN IT(SS)A.NO.153/A/2 005 BLOCK PERIOD 1-4-86 TO 11-1 0-95) 2 SUPPORT OF THE AVAILABILITY OF AGRICULTURAL INCOME. FURTHER THE ASSESSING OFFICER HAS TOTALLY DISREGARDED THE FACT THAT THE INVESTMENTS MADE BY T HE ASSESSEE HAVE ALREADY BEEN DULY RECORDED IN THE BOOKS OF ACCOUNTS AND HENCE THEY FA LL OUTSIDE THE SCOPE OF UNDISCLOSED INCOME. 3. ON THE OTHER HAND, THE LD D.R SUBMITTED THAT THE ASSESSING OFFICER, AS PER THE DIRECTION GIVEN BY THE ITAT, HAS DULY CONSIDERED TH E EVIDENCES FURNISHED BY THE ASSESSEE IN SUPPORT OF AVAILABILITY OF AGRICULTURAL INCOME A ND HAS CATEGORICALLY STATED THAT THE ASSESSEE HAS FAILED TO PROVE THE AVAILABILITY OF AG RICULTURAL INCOME IN THE HANDS OF THE ASSESSEE. HE FURTHER SUBMITTED THAT THE ASSESSEE I S AN EMPLOYEE OF M/S DHARMENDRA GROUP OF INDUSTRIES AND WAS HAVING ONLY SALARY INCO ME AND OTHER INCOME. HE FURTHER SUBMITTED THAT THERE IS NO DISCUSSION ABOUT THE AVA ILABILITY OF BOOKS OF ACCOUNTS IN THE ASSESSMENT ORDER. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAR EFULLY PERUSED THE RECORD. THE ITAT, VIDE ITS ORDER DATED 22.11.2002, HAD SET ASIDE THE ORDER OF THE EARLIER ASSESSMENT ORDER AND HAS DIRECTED THE ASSESSING OFFICER TO RE-COMPUTE THE INCOME OF THE BLOCK PERIOD IN ACCORDANCE WITH THE LAW AFTER EXAMINING THE EVIDENC E FURNISHED IN RESPECT OF AGRICULTURAL INCOME AND ALSO BY CONSIDERING THE RETROSPECTIVE AM ENDMENTS MADE BY THE FINANCE ACT, 2002. THE CONTENTION OF THE ASSESSEE IS THAT THE COMPUTATION SECTION, I.E. 158BB HAS UNDERGONE MANY AMENDMENTS, ACCORDING TO WHICH THE I NVESTMENTS ALREADY RECORDED IN THE BOOKS OF ACCOUNT HAS TO BE EXCLUDED FROM THE AM BIT OF UNDISCLOSED INCOME AND HENCE THE ASSESSING OFFICER HAS TO NECESSARILY GO T HROUGH THE EVIDENCES FOUND DURING THE COURSE OF SEARCH AND HAS TO RE-COMPUTE THE UNDISCLO SED INCOME. 5. FROM THE ASSESSMENT ORDER, WE NOTICE THAT TH E ASSESSING OFFICER DID NOT DISCUSS ANYTHING ABOUT THE AMENDMENTS MADE TO SEC. 158BB OF THE ACT BY THE FINANCE ACT, 2002 WITH RETROSPECTIVE EFFECT FROM 1.7.1995. HENCE, WE FIND MERIT IN THE SAID CONTENTIONS OF THE ASSESSEE. FURTHER THE ASSESSEE CLAIMS THAT HE WAS MAINTAINING BOOKS OF ACCOUNT, WHEREIN HE HAS RECORDED VARIOUS INVESTMENTS. HOWEV ER, THE LD A.R COULD NOT PRODUCE ANY EVIDENCE IN SUPPORT OF ITS CLAIM THAT THE SAID INVESTMENT WERE FOUND RECORDED IN THE IT(SS)A.NO.153/A/2 005 BLOCK PERIOD 1-4-86 TO 11-1 0-95) 3 BOOKS OF ACCOUNT AND OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE ON OR BEFORE THE DATE OF SEARCH. HENCE, WE FIND MERIT IN THE CONTEN TION OF THE LD D.R THAT THE SAID CLAIM OF THE ASSESSEE NEEDS VERIFICATION. THE CRUCIAL PO INT IS THAT THE INVESTMENTS SHOULD HAVE BEEN RECORDED IN THE BOOKS OF ACCOUNT AND OTHER DO CUMENTS MAINTAINED IN THE NORMAL COURSE ON BEFORE THE DATE OF SEARCH, WHICH FACT REQ UIRES VERIFICATION AT THE END OF THE ASSESSING OFFICER AS THE ASSESSEE HAS FAILED TO PRO DUCE A COPY OF PANCHANAMA TO PROVE THAT THE SAID BOOKS OF ACCOUNTS WERE AVAILABLE ON THE DA TE OF SEARCH. 6. WITH REGARD TO THE CLAIM OF AVAILABILITY OF AGRI CULTURAL INCOME, WE NOTICE THAT THE ASSESSING OFFICER HAS TAKEN A CONSCIOUS VIEW AFTER CONSIDERING ALL THE EVIDENCES FURNISHED BY THE ASSESSEE AND HENCE WE DO NOT FIND ANY REASON TO INTERFERE WITH THE SAME. HOWEVER, IN THE INTEREST OF NATURAL JUSTICE, THE AS SESSING OFFICER MAY CONSIDER TELESCOPING THE SAME AGAINST OTHER INVESTMENTS. 7. IN VIEW OF THE FOREGOING DISCUSSIONS, WE SE T ASIDE THE ORDER OF THE ASSESSING OFFICER WITH REGARD TO THE VARIOUS OTHER ADDITIONS MADE AND RESTORE THOSE ISSUES TO HIS FILE WITH A DIRECTION TO EXAMINE THE CLAIM OF THE ASSESSEE WITH REGARD TO THE AVAILABILITY OF BOOKS OF ACCOUNT AND DECIDE THE SAME IN ACCORDANCE WITH THE LAW AFTER AFFORDING NECESSARY OPPORTUNITY OF BEING HEARD. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS TREA TED AS ALLOWED AS STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 19-1-2012 SD/- SD/- ( G.C. GUPTA) (B.R.BASKARAN) VICE PRESIDENT ACCOUNTAN T MEMBER AHMEDABAD. S.A.PATKI. IT(SS)A.NO.153/A/2 005 BLOCK PERIOD 1-4-86 TO 11-1 0-95) 4 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 16 - 1 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 16 / 1 /2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 18 - 1 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 19 - 1 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 19 - 1 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 9 - 1 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..