Appeal details
Counselvise Citation
[2012] 121 COUNSELVISE.COM (IT) 8090 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 6 month(s) 13 day(s)
Appellant
Respondent
Appeal Type
Income Tax (Search & Seizure) Appeal
Pronouncement Date
08-06-2012
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
23-05-2012
Assessment Year
2007-2008
Appeal Filed On
25-11-2009
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER IT(SS)A NO. 158/AHD/2009 ASSESSMENT YEAR :2006-07 & C.O. NO. 280/AHD/2011 ASSESSMENT YEAR :2006-07 THE ASSISTANT COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-2, SURAT SHRI SANJAY J. AGRAWAL (HUF) 301, POOJA ABHISEK, ATHWALINES, SURAT. V/S . V/S. SHRI SANJAY J. AGRAWAL (HUF) 301, POOJA ABHISEK, ATHWALINES, SURAT. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE- 2, SURAT (APPELLANT) .. (RESPONDENT) IT(SS)A NO. 159/AHD/2009 ASSESSMENT YEAR :2007-08 & C.O. NO. 281/AHD/2011 ASSESSMENT YEAR :2007-08 THE ASSISTANT COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-2, SURAT SHRI SANJAY J. AGRAWAL (HUF) 301, POOJA ABHISEK, ATHWALINES, SURAT. V/S . V/S. SHRI SANJAY J. AGRAWAL (HUF) 301, POOJA ABHISEK, ATHWALINES, SURAT. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE- 2, SURAT (APPELLANT) .. (RESPONDENT) IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 2 IT(SS)A NO. 95/AHD/2012 ASSESSMENT YEAR :2007-08 SHRI SANJAY J. AGRAWAL (HUF) 301, POOJA ABHISEK, ATHWALINES, SURAT. V/S . THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE- 2, SURAT PAN NO. AATHS 2858 F (APPELLANT) .. (RESPONDENT) BY REVENUE SHRI SHYAM PRASAD, SR. D.R /BY ASSESSEE SHRI SAPNESH SHETH, A.R. /DATE OF HEARING 23.05.2012 /DATE OF PRONOUNCEMENT 08.06.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER OUT OF THREE APPEALS TWO BY REVENUE AND ONE BY AS SESSEE, THE ASSESSEE ALSO FILED TWO CROSS APPEAL (C.O.) ARISING OUT OF DIFFERENT ORDERS OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-II, AHMEDA BAD, DATED 03.09.2009 & 21.12.2011 FOR THE ASSESSMENT YEARS 2006-07 & 20 07-08. SINCE THE ISSUES ARE COMMON OF REVENUES APPEAL, WE HEARD TOG ETHER AND DISPOSE OF BY A CONSOLIDATE ORDER FOR THE SAKE OF CONVENIENCE. IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 3 FIRST WE TAKE UP REVENUES APPEAL IN IT(SS)A NO. 15 8 - 159/AHD/2009, [A.YS. 06-07 & 07-08]. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.24,29,070/- MADE ON ACCOUNT OF UNEXP LAINED INVESTMENT IN COST OF CONSTRUCTION OF BUILDING U/S.69B OF THE ACT OF RS.97,76,773/- BY CONSIDERING THE ADVANCES MADE BY THE ASSESSEE AS COST OF CONSTRUCTION OF BUILDING THOUGH EVEN BY ASSESSEES OWN ADMISSION, THE SAME WERE ONLY ADVANCES GIVEN AND THE COST HAD NOT BEEN INCURRED AS ON 31.03.2007. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN A LLOWING A DEDUCTION OF 10% FOR CONSTRUCTION UNDER OWNERS OWN SUPERVISION RELYING ON THE DECISION OF HONBLE ITAT JAIPUR BENC H IN THE CASE OF ITO VS. PRAKASH CHAND SURANA (1979) 7 TTJ 29(JP), IGNOR ING THE FACT THAT ASSESSEE COULD NOT HAVE HAD THAT ADVANTAGE OF COST REDUCTION AS THE ASSESSEE HIMSELF HAD SHOWN ARCHITECT FEES OF RS.6,6 1,200/- AND HAS GOT THE WORK DONE THROUGH LABOUR CONTRACTORS AND NOT UN DER HIS OWN SUPERVISION. 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN H OLDING THAT THE DIFFERENCE IN VALUATION OF RS.6,21,411/- HAS TO BE IGNORED AS DVO HAS VALUED THE PROPERTY AFTER A LAPSE OF CONSIDERABLE T IME, IGNORING THE FACT THAT THE SCRUTINY ASSESSMENTS IN THE INCOME TAX ACT IS COMPLETED WITHIN A SPAN OF TREE YEARS FROM THE END OF THE F.Y. RELEV ANT TO THE A.Y. IN IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 4 QUESTION AND THE VALUATION IS MADE BY THE DVO CONSI DERING THE CONSTRUCTION AND THE RATES IN THE RELEVANT YEAR. 4. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN D ELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN TH E CONSTRUCTION OF THE BUILDING ON THE BASIS OF THE VALUATION REPORT OF TH E DVO, ON REFERENCE UNDER SECTION 42A OF THE ACT. 5. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN D ELETING THE ADDITION ON THE GROUND THAT NO DOCUMENTARY EVIDENCE WAS FOUND IN RESPECT OF UNACCOUNTED EXPENDITURE, IGNORING THAT T HE ADDITION WAS NOT BASED ON EVIDENCE FOUND DURING SEARCH, BUT ON ACCOU NT OF DIFFERENCE IN THE COST SHOWN BY THE ASSESSEE AND THE COST ESTIMAT ED BY THE DVO TO WHOM REFERENCES WAS MADE BY THE AO AS THE ASSESSEE HAD UNDERINVOICED THE INPUT BILLS. 6. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN N OT APPRECIATING THE RATIO LAID DOWN IN THE JUDGMENT OF THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF AMAR KUMARI SU RANA VS. CIT(226 ITR 344), WHEREIN THE HONBLE HIGH COURT HELD THAT IF THE ASSESSEE IS NOT ABLE TO POINT OUT ANY MISTAKE IN THE ESTIMATE O F THE VALUATION OFFICER, THE ONLY REASONABLE INFERENCE THAT CAN BE DRAWN IS THAT THE ASSESSEE HAS SHOWN LESS AMOUNT IN THE ACCOUNT BOOKS AND SALE DEED THAN THE ACTUAL CONSIDERATION. 7. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN I GNORING THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CAS E OF CIT VS MEERUT CEMENT CO. PVT. LTD.(2006) 150 TAXMAN 7 (ALL.), WHE REIN, IN CASE OF DOUBT, THE HONBLE HIGH COURT HELD THAT THE ASSESSI NG OFFICER CAN REFER THE MATTER TO VALUATION CELL FOR DETERMINATION OF C OST OF CONSTRUCTION AND RELY UPON SUCH REPORT AS AN EVIDENCE. 2. THE SEVEN GROUNDS OF APPEAL ARE AGAINST THE ADDI TION OF RS.24,29,070/- AND 28,46,248/- UNEXPLAINED INVESTMENT IN COST OF CONSTRUCTION OF BUILDING IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 5 U/S. 69B OF THE I.T. ACT IN A.Y. 2006-07 & 2007-08. THE A.O. OBSERVED THAT THERE WAS A SEARCH AND SEIZURE OPERATION AT THE RES IDENCE PREMISES OF THE ASSESSEE BELONGING TO RACHNA GROUP, SURAT ON 08.02. 2007 AND SURVEY ACTION SIMULTANEOUSLY WAS CONDUCTED U/S 133A ON BUSINESS P REMISES OF THE GROUP. THE ASSESSMENT WAS FRAMED U/S 153C READ WITH 143(3) OF I.T. ACT FOR A.Y. 2006-07 AND 143(3) FOR A.Y. 2007-08. DURING THE Y EAR, THE ASSESSEE CONSTRUCTED BUILDING AT BUNGLOW-40, ADARSH SOCIETY, SURAT FOR A SUM OF RS. 62,77,866/- ON SCRUTINY OF CONSTRUCTION ACCOUNT, TH E A.O. ESTIMATED AVERAGE UNIT COST @ RS. 5850/- PER SQUARE METER WHICH WAS S HOWN IN THE BOOKS OF ACCOUNT @ 3,179/- PER SQUARE METER. THE COST OF TH E CONSTRUCTION WAS REFERRED TO THE DISTRICT VALUATION OFFICER. THERE W AS DIFFERENCE BETWEEN INVESTMENT DECLARED IN THE RETURN AND COST ESTIMATE D BY THE D.V.O. AT RS. 52,75,318/-. THE BIFURCATION WAS RS. 24,29,470/- F OR A.Y. 2006-07 AND RS. 28,46,248/- FOR A.Y. 2007-08. THE A.O. ALSO REJEC TED BOOKS U/S 145 OF THE I.T. ACT. HE CONSIDERED THE VALUATION REPORT AND EVIDEN CE FOR FRAMING OF THE ASSESSMENT. THE ASSESSEE WAS GIVEN REASONABLE OPPO RTUNITY TO EXPLAIN THE DIFFERENCE IN COST OF CONSTRUCTION OF RS. 24,29,470 /- FOR A.Y. 2006-07 AND RS. 28,46,248/- FOR A.Y. 2007-08 BUT THE A.O. WAS NOT C ONVINCED WITH THE REASONS SUBMITTED BY THE APPELLANT. HE HAD GIVEN DETAILED REASONING ON PAGE NOS. 5 TO 7 FOR A.Y. 2006-07 AND ON PAGE NO. 6 TO 8 FOR A. Y. 2007-08 AND HE MADE ADDITION OF RS. 24,29,470/- IN A.Y. 2006-07 AND RS. 28,46,248/- IN A.Y. 2007- 08 ON ACCOUNT OF EXCESS UNEXPLAINED EXPENDITURE. IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 6 3. BEING AGGRIEVED BY THESE ORDERS, THE ASSESSEE FI LED SECOND APPEAL BEFORE LD. CIT (A)-II, AHMEDABAD, WHO HAS ADJUDICAT ED THIS ISSUE IN HIS JOINT ORDER ON PAGE NOS. 2 TO 9 AND ALLOWED THE APPEAL FO R BOTH THE YEARS IN FAVOUR OF THE ASSESSEE, IN PARAGRAPH 3.3 WHICH IS REPRODUC ED AS UNDER:- 3.3 I HAVE CONSIDERED THE FACTS AND THE SUBMISSION S. I AGREE WITH THE APPELLANTS VIEW FOR THE FOLLOWING REASONS: (A) THE APPELLANT HAS SHOWN THE COST OF CONSTRUCTIO N MATERIAL AND LABOUR EXPENSES FOR THE CONSTRUCTION IN HIS BAL ANCE SHEET AND THE RETURN FILED AT RS.97,76,773/- HENCE, THE DIFFE RENCE REMAINS ONLY OF RS. 17,76,411/- BETWEEN THE VALUE SHOWN BY THE APPELLANT AND THE VALUATION REPORT OF DVO. (B) THE DVO HAS NOT CONSIDERED SELF SUPERVISION FAC TOR. AS PER DECISION OF JAIPUR BENCH OF ITAT IN THE CASE OF ITO V. PRAKASH CHAND SURANA (1979) 7 TTJ 29 (JP), WHEN T HE HOUSE IS CONSTRUCTED UNDER OWNERS SUPERVISION, A DEDUCTION OF ABOUT 10% FOR SUPERVISION IS GIVEN WHILE ESTIMATING THE COST OF CONSTRUCTION. AFTER GIVING THE DEDUCTION FOR SELF SUPERVISION AT 10%, BEING RS.11,55,000/-, THE DIFFERENCE REMAINS ONLY RS.6,21 ,411/-. (C) AFTER CONSIDERING THE FACT THAT THE DVO HAS VAL UED THE PROPERTY AFTER A LAPSE OF TIME AND ALSO THE FACT TH AT THE APPELLANT HAS MADE FURTHER EXPENDITURE ON CONSTRUCTION AFTER 31.03.2007, THE DIFFERENCE BECOMES NEGLIGIBLE AND LIABLE TO BE IGNORED. (D) DURING THE SEARCH, NO DOCUMENTARY EVIDENCE WAS FOUND THAT THE APPELLANT HAS INCURRED UNACCOUNTED EXPENDI TURE IN CONSTRUCTION. (E) IN VIEW OF THESE FACTS AND THE CASE LAWS RELIED ON BY THE APPELLANT DISCUSSED IN THE ABOVE PARAS, THE A.O. IS NOT JUSTIFIED IN MAKING THE ADDITION. ACCORDINGLY, THE ADDITION IS DELETED AND THE GROUND IS ALLOWED. IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 7 4. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD. D.R. CONTENDED BEFORE US THAT COST OF CONSTRUCTION ESTIMATED BY THE A.O. WAS EVIDENCE FOR THE COST OF CONSTRUCTION. THE VALUER IS AN EXPERT. THE MATTER WAS REFERRED U/S 142A OF THE IT ACT, WHO HAD GIVEN REASONABLE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE DIFFERENCE BUT LD. CIT(A) WAS NOT JUSTIFYING IN DELETION OF THAT ADDITION MADE BY THE A.O. OTHER SIDE, LD. A.R. OF THE ASSESSEE R AISED MAIN CONTENTIONS IN C.O. AS WELL AS IN ARGUMENT THAT THERE WAS NO PROCE EDING WAS PENDING FOR MAKING AN ASSESSMENT OR RE-ASSESSMENT. THE REFEREN CE WAS MADE WITHOUT ANY JURISDICTION. FURTHER, HE ALSO CLAIMED THAT 10 % DEDUCTION ON ACCOUNT OF OWNERS OWN SUPERVISION HAD NOT BEEN ALLOWED BY THE A.O. IN KEEPING VIEW OF THE HONBLE ITAT DECISION OF JAIPUR BENCH IN THE CA SE OF ITO V. PRAKASH CHAND SURANA (1979) 7 TTJ 29 (JP) . THE PROPERTY WAS VALUED AFTER A LAPSE OF CONSIDERABLE TIME. THEREFORE, ADDITIONS MADE BY TH E A.O., WERE NOT JUSTIFIED AND DESERVE TO BE DELETED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GO NE THROUGH THE ORDERS OF AUTHORITIES BELOW AND CASE LAW CITED BY BOTH THE SIDE. THE ASSESSEE HAS SHOWN COST OF CONSTRUCTION IN BALANCE SHEET AT RS. 97,76,773/- WHEREAS COST ESTIMATED BY THE VALUER AT RS. 1,15,55,424/-. THE DIFFERENCE IS REMAINED RS. 17,76,412/-. THERE IS OWN SUPERVISION IN CONSTRUCT ION OF BUNGALOW WHICH REDUCES THE COST OF CONSTRUCTION. THIS BENEFIT WAS ALLOWED BY THE VARIOUS ITATS NEAR ABOUT 10% OF THE ESTIMATED COST OF CONST RUCTION. THE APPELLANT ALSO MADE EXPENDITURE AFTER 31.03.2007. THE A.O. H AS NOT BROUGHT ON RECORD ANY INCRIMINATING EVIDENCE FOUND DURING THE COURSE OF SEARCH AND SEIZURE IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 8 OPERATION FOR CONSTRUCTION OF BUNGALOW. AFTER CONS IDERING THE FACTS OF THE CASE, WE HAVE CONSIDERED VIEW THAT THE VALUATION MA DE BY THE D.V.O. IS AN ESTIMATE AND HAS VARIATION IN COST ESTIMATION. THE APPELLANT HAS EXPLAINED THE DIFFERENCE BEFORE THE CIT(A) AS WELL AS US. THEREF ORE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). THUS, THE SAME IS CONFIRMED. ACCORDINGLY, THE REVENUE APPEALS ARE DISMISSED. 6. IN THE RESULT, THE REVENUES APPEALS ARE DISMISS ED IN BOTH THE YEARS. COMING TO ASSESSEES C.O.NOS. 280-281/AHD/2011 [A.Y S.06-07& 07-08] 7. THE C.OS. ARE AGAINST FOR REFERRING THE MATTER TO THE D.V.O. U/S 142A OF THE I.T. ACT IN BOTH THE YEARS. THE DETAIL FINDING S HAVE BEEN GIVEN IN PRECEDING PARAS. THEREFORE, NO SEPARATE FINDINGS A RE GIVEN ON THESE C.OS AND ON SAME ISSUE REVENUES APPEALS HAVE BEEN DISMI SSED AND ALLOWED IN FAVOUR OF THE ASSESSEE. NOW WE TAKE UP ASSESSEES APPEAL IN IT(SS)A NO. 95/AHD/2012 A.Y. 07-08 8. THE MAIN GROUND OF APPEAL IS AS UNDER:- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFF ICER IN REJECTING THE APPLICATION FOR RECTIFICATION U/S 154 AND CHARGING INTEREST U/S 234B AND 234C BY TREATING AMOUNT OF RS. 23 LACS WHICH HAS BE EN ADJUSTED AGAINST THE CASH SEIZED AS SELF ASSESSMENT TAX INST EAD OF ADVANCE TAX. IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 9 9. THE FIRST GROUND OF APPEAL OF A.Y. 2007-08 WAS A GAIN CHARGING OF INTEREST U/S 234B AND 234C OF THE IT ACT. THE BRIE F FACT OF THE CASE IS THAT THERE WAS SEARCH AND SEIZURE OPERATION ON THE GROUP ON 08.02.2007. THE LD. A.O. HAD GIVEN THE APPEAL EFFECT ON 13.11.2009 IN W HICH HE CHARGED INTEREST U/S 234B AND 234C. THE ASSESSEE FILED APPLICATION U/S 154 ON 15 TH APRIL, 2010 FOR RECTIFICATION THE DEMAND CREATED ON ACCOUN T OF THE INTEREST WHICH WAS NOT CHARGEABLE BECAUSE THE ASSESSEE HAD REQUESTED F OR ADJUSTMENT ON 12.03.2007 TO THE A.O., THE ADDITIONAL COMMISSIONER OF IT AND THE COMMISSIONER OF IT TOWARDS PAYMENT OF ADVANCE TAX O F RS. 23,00,000/- OUT OF TOTAL CASH SEIZED RS. 43,00,000/-. HOWEVER, THE A. O. HAD REJECTED THE RECTIFICATION APPLICATION. THE ASSESSEE FILED SECO ND APPEAL BEFORE LD. CIT (A)- II, AHMEDABAD, WHO HAS ALSO DISMISSED THE APPEAL BY OBSERVING ON PAGE NOS. 3 & 4 OF THE ORDER DATED 21.12.2011 AS UNDER:- 5. I HAVE CONSIDERED THE SUBMISSION OF THE LEARNED A.R., STATEMENT OF FACTS AND THE ORDER PASSED U/S. 154 OF THE I.T.A CT DATED 18.02.2011 BY THE ASSESSING OFFICER IN WHICH THE APPLICATION U /S. 154 WAS REJECTED. I HVE ALSO PERUSED THE ASSESSMENT ORDER PASSED U/S. 143(3) FOR A.Y.2007-08 ON 30.12.2008 ALONG WITH THE CALCULATIO N SHEET OF TAX, SURCHARGE AND INTEREST. IT IS APPARENT FROM THE CA LCULATION SHEET THAT THE INTEREST OF RS.8,15,456/- U/S. 234B & RS.91,461/- U /S.234 C WAS CHARGED IN THE ASSESSMENT ORDER ITSELF. ONE APPLIC ATION DTD. 22 ND MARCH,2011 BY THE AUTHORIZED REPRESENTATIVE RASESH SHAH & ASSOCIATES IS FILED ALONGWITH FORM NO.35 IN WHICH I T IS MENTIONED THAT THE ASSESSEE FILED AN APPEAL AGAINST THE ORDER PASSED B Y THE ASSESSING OFFICER U/S. 154 ON 18.02.2011 AND NO FURTHER DEMAN D HAS BEEN RAISED BY THE A.O. AS THE ORDER WAS PASSED U/S. 154 REJECT ING THE ASSESSEES APPLICATION FOR RECTIFICATION AND ACCORDINGLY, NO D EMAND NOTICE WAS IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 10 ISSUED BY THE ASSESSING OFFICER ALONGWITH THE ORDER PASSED U/S. 154 OF THE ACT. 5.1 FROM THE ABOVE FACTS, IT IS ESTABLISHED BEYOND ANY DOUBT THAT THE LEARNED A.R. HAS MENTIONED WRONG FACTS THAT THE INT EREST U/S. 234B & 234C WAS CHARGED FIRST TIME IN THE ORDER GIVING EFF ECT TO THE ORDER OF THE CIT(A) WITHOUT GIVING OPPORTUNITY TO THE APPELLANT AND WITHOUT PASSING ANY SPEAKING ORDER. THE INTEREST U/S.2345B AND 234 C WAS CHARGED ORIGINALLY IN THE ASSESSMENT ORDER PASSED U/S. 143( 3) AND IN THE ORDER GIVING EFFECT TO THE ORDER OF THE CIT(A), THE INTER EST U/S.234B & 234C WAS REDUCED TO RS.5,20,125/- AS AGAINST INTEREST OF RS.9,06,917/- [ RS.8,15,456 INT. U/S.2234B + RS.91,461 INT. U/S.234 C]. IT IS THEREFORE, CLEAR THAT THERE WAS NO MISTAKE APPARENT FROM THE R ECORD IN THE ORDER GIVING EFFECT TO THE ORDER OF THE CIT(A) AND THE AS SESSING OFFICER HAS RIGHTLY REJECTED THE RECTIFICATION APPLICATION U/S. 154 AGAINST WHICH THE APPEAL UNDER CONSIDERATION IS FILED. IT APPEARS TH AT THE APPELLANT HAS NOT RAISED ANY GROUND OF APPEAL AGAINST CHARGING OF INTEREST U/S. 2234B & 234C IN THE ORDER PASSED U/S.143(3) ON 30.12.2008 AND NOW THROUGH THE RECTIFICATION APPLICATION, THE APPELLANT WANTS TO RAISE THE GROUND OF APPEAL AGAINST THE CHARGING OF INTEREST U/S.234B & 234C IN THE ORIGINAL ASSESSMENT ORDER BY QUOTING WRONG FACTS IN THE RECT IFICATION APPLICATION AND SUBMISSIONS FILED DURING THE APPELLATE PROCEEDI NGS THAT THE INTEREST U/S.234B & 234C WAS CHARGED FIRST TIME IN THE ORDER GIVING EFFECT TO THE ORDER OF THE CIT(A). IN VIEW OF THE ABOVE OBSERVATION, THE APPEAL FILED AGAINST THE REJECTION OF RECTIFICATION APPLICATION VIDE ORDER DATED 18.02 .2011 U/S. 154 OF THE I.T. ACT, IS DISMISSED. 10. NOW THE ASSESSEE IS IN APPEAL BEFORE US AND ARG UED THAT THIS WAS NO FAULT OF THE ASSESSEE IN ADJUSTING THE CASH AGAINST THE ADVANCE TAX EVEN AFTER IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 11 WRITTEN REQUEST HAD BEEN MADE BY THE ASSESSEE. HE RELIED UPON C BENCH, AHMEDABAD DECISION IN CASE OF SHREEJI PRINTS PVT. L TD. VS. ACIT, SURAT IN ITA NO. 359/AHD/2012 . CO-ORDINATE C BENCH HAD CONSIDERED OTHER TWO D ECISIONS OF ITAT RAJKOT BENCH IN ITA NO.1172/RJT/2010 IN CASE OF SHRI RAM S. SARDA V. DCIT AND ITAT MUMBAI BENCH IN THE CASE OF SUDHAKAR M. SHETTY V. ACIT IN ITA NO. 4238 & 4239/MUM/2007 AND HELD THAT THE ASSESSEE IS ENTITLED TO GIVE CREDIT OF RS. 8 LAC AS ADVANCE TAX INSTEAD OF SELF ASSESSMENT TAX. IN ASSESSEES CASE, THE REQUEST HAS BEEN MADE TO ADJUS T THE TAX AGAINST ADVANCE TAX BEFORE THE IT AUTHORITY BUT NO ADJUSTME NT WAS MADE FROM THE SEIZURE OF CASH. THE RATIO LAID DOWN BY THE C BE NCH IN ABOVE CASE IS EQUALLY APPLICABLE IN ASSESSEES CASE. THEREFORE, WE DIRE CT THE A.O. TO GIVE THE CREDIT OF RS. 23 LAC AS ADVANCE TAX AND CHARGE INTE REST AFTER ASSUMING ADVANCE TAX PAID RS. 23 LAC U/S 234B AND 234C AS PE R LAW, IF ANY. 11. IN THE RESULT, THE APPEAL IS ALLOWED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 12. IN THE COMBINED RESULT, THE REVENUES APPEAL IS DISMISSED AND THE ASSESSEES C.O. IS ALLOWED FOR BOTH THE YEARS & THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (MUKUL KR. SHRAWAT) ( T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA IT(SS)A NOS. 158&159/A/09 & 95/A/12 & C.O. NO. 280&281/A/2011 PAGE 12 / COPY OF ORDER FORWARDED TO:- 1. '#$ / APPELLANT 2. &'#$ / RESPONDENT 3. )*)+ ' ', / CONCERNED CIT 4. ' ',- ' / CIT (A) 5. 01'' +, ' ''' +, 34 * / DR, ITAT, AHMEDABAD 6. 167 89 / GUARD FILE. BY ORDER/ , :/3' )' ' ''' +, 34 * < STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 05.06.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 06.06.2012 4) DATE OF CORRECTION 06.06.2012 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 08.06.2012 7) ORDER UPLOADED ON 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 08.06.2012
Mehul