M/s. Tiki Tar Industries,(Taloja), Baroda V. The ACIT., Cent.Circle-2, Baroda

ITSSA 176/AHD/2006

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7761 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-02-2012
• Assessment Year: misc
• Appeal Filed On: 10-07-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL PATEL
• Assessee Lawyers: B S GEHLOT
• Keywords: Block assessment
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI P.K.BANSAL, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER IT(SS)A NO.176/AHD/2005 BLOCK PERIOD FROM: 1-4-89 TO 02-12-99 DATE OF HEARING:13.8.09 DRAFTED:10.9.09 ACIT, MEHSANA CIRCLE, MEHSANA V/S . NIMISHA KHADI GRAMODYOG MANDAL, AT & POST: JAMLA, TAL. KALOL PAN NO.AAATN4908N (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI B.S. GEHLOT, CIT, DR RESPONDENT BY:- SHRI RAHUL PATEL AR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XXI, AHMEDABAD IN APPEAL NO. C IT(A)/XXI/MEH/209/04-05 DATED 29-03-2005. THE BLOCK ASSESSMENT WAS FRAMED BY THE ACIT, MEHSANA CIRCLE, MEHSANA U/S.158 BD R,W.S 143(3) OF THE INCOME-TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 27-08-2004 FO R THE BLOCK PERIOD FROM 01-04-1989 TO 02-12-1999. 2. THE ONLY ISSUE IN THIS APPEAL OF THE REVENUE IS AGAINST THE ORDER OF CIT(A) IN DIRECTING THE ASSESSING OFFICER TO DELETE THE ADDIT ION MADE ON ACCOUNT OF UNDISCLOSED INCOME OF RS.27,61,500/- DURING THE BLO CK ASSESSMENT. IT(SS)A NO176/AHD/2005 B.P. ENDING 2.12.99 ACIT MSN V. NIMISHA KHADI GRAMODYOG MANDAL PAGE 2 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE TAKE N US TO THE FINDINGS OF CIT(A), WHICH ARE RECORDED AT PAGE-13 AND 14 OF HIS APPELLATE ORDER, WHICH READS AS UNDER:- I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLAN T AND PERUSED THE RELEVANT FACTS OF THE CASE. I AGREE WITH THE FACT STATED BY THE APPELLANT THAT SHRI NITINBHAI PATEL FROM WHOM THE INCRIMINATING PAPERS WERE SEIZED NEVER STATED IN HIS STATEMENT THAT THE APPELLANT HAD BEEN PAID A MOUNTS IN CASH AS STATED IN THE SEIZED MATERIAL. FURTHER THE APPELLANT HAS NOT BEEN PROVIDED OPPORTUNITY OF CROSS EXAMINING SHRI NITINBHAI PATEL. THE DECISI ON OF HONBLE AHMEDABAD TRIBUNAL IN THE CASE OF PRARTHNA CONSTRUCTION PVT. LTD. IS SQUARELY APPLICABLE IN THE CASE OF THE APPELLANT. FOLLOWING THE SAME, I HOLD THAT AS IT IS NOT ESTABLISHED THAT THE APPELLANT HAD RECEIVED THE AMO UNTS MENTIONED IN THE VARIOUS ENTRIES APPEARING IN THE PAPER SEIZED FROM SHRI NITINBHAI PATEL I HOLD THAT THE AMOUNT OF RS.27,61,500/- CANNOT BE CONSIDE RED UNDISCLOSED INCOME OF THE PENALTY PROCEEDINGS. HENCE, THE ADDITION OF RS.27,61,500/- IS DELETED. 4. SUBSEQUENTLY, LD. DEPARTMENTAL REPRESENTATIVE TA KEN US TO THE SEIZED MATERIAL AS MARKED A/11 IN WHICH THE SUBSTANTIAL CA SH RECEIPTS ON VARIOUS DATES DURING THE YEARS 1997 AND 1998 ARE RECORDED BY THE ASSESSEE AND WHICH WERE GIVEN ON BEHALF OF VARIOUS CONCERNED OF TIMBER GROUP I.E. M/S. PREMIUM PLY PVT. LTD., VENEER PVT. LTD. AND M/S. BHARAT SAW MILL ETC. FURT HER, LD. DEPARTMENTAL REPRESENTATIVE TAKEN US TO THE BLOCK ASSESSMENT ORD ER WHERE THESE TRANSACTIONS ARE RECORDED AND PAID IN CASH AS ADMITTED BY SHRI NITIN BHAI K PATEL, WHO IS A KEY PERSON OF THE TIMBER GROUP AND MANAGING AFFAIRS OF THESE C ONCERNS AND HE ALSO REFERRED THAT THE ASSESSEE WAS PROVIDED OPPORTUNITIES OF BEI NG HEARD AND TO PRODUCE THE DOCUMENTARY EVIDENCE TO EXPLAIN THE SOURCE AND THE PURPOSE OF THE ABOVE RECEIPTS. WE FIND THAT THIS FACT HAS BEEN CLEARLY MENTIONED I N THE ASSESSMENT ORDER THAT THE ASSESSEE WAS PROVIDED OPPORTUNITIES TO CROSS-EXAMIN E BY PROVIDING X-EROX COPIES OF THE STATEMENTS. THE ASSESSING OFFICER ALSO SUMMONED SHRI NITINBHAI K PATEL ON 20- 08-2004 FOR CROSS-EXAMINATION BUT HE REMAINED ABSEN T AND ANOTHER OPPORTUNITY WAS PROVIDED ON 27-08-2004 BUT DESPITE THAT HE REMAINED ABSENT. ON THE OTHER HAND, LD AUTHORIZED REPRESENTATIVE WHEN CONFRONTED, THAT THE NITINBHAI K PATEL WAS ISSUED SUMMONS BUT HE DID NOT ATTEND AND HE FAIRLY AGREED THAT THE CASE BE SET ASIDE TO THE FILE OF ASSESSING OFFICER FOR DECIDING THE ISSUE AF TER PROVIDING REASONABLE OPPORTUNITIES TO CROSS-EXAMINE, SHRI NITINBHAI K PA TEL AND ALSO EXPLAINED THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH PERTAIN ING TO TIMBER GROUP WHICH RELATES TO THE ASSESSEE. AS THE MATTER REQUIRES REC ONSIDERATION AND THE ASSESSEE IT(SS)A NO176/AHD/2005 B.P. ENDING 2.12.99 ACIT MSN V. NIMISHA KHADI GRAMODYOG MANDAL PAGE 3 SHOULD BE GIVEN OPPORTUNITY OF BEING HEARING AND OP PORTUNITY TO CROSS-EXAMINE SHRI NITINBHAI K PATEL. THIS ISSUE OF THE REVENUES APP EAL IS SET ASIDE TO THE FILE OF ASSESSING OFFICER AS INDICATED ABOVE AND THIS ISSUE OF REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 09/10/2009 SD/- SD/- (P.K.BANSAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED : 09/10/2009 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- XXI, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD