The ACIT, Central Circle-1(4), Ahmedabad V. M/s. Patel Avenue Housing Co.Op.So.Ltd., Ahmedabad

ITSSA 191/AHD/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8454 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-04-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 23-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard
• Section: 142(1); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON' BLE SHRI N.S.SAINI, A.M. ) I.T.A. NOS. 191 & 192/AHD./20009 ASSESSMENT YEARS : 2006-2007 & 2007-2008 A.C.I.T., CENT. CIRCLE-1(4), AHMEDABAD -VS- PATEL AVENUE HOUSING CO.OP. SOC. LTD. (PAN: ) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. MADHUSUDAN, S R.D.R RESPONDENT BY : NONE O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THESE TWO APPEALS FILED BY THE REVENUE ARE AGAINST THE TWO SEPARATE ORDERS BOTH DATED 03.11.2009 PASSED BY THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS)-I, AHMEDABAD DELETING THE ADDITION OF RS.10 LAKHS MADE IN EACH Y EAR OF THE ASSESSMENT YEARS 2006-2007 AND 2007-2008. 2. DESPITE THE SERVICE OF NOTICE THROUGH REGISTERED POST, NEITHER ANYBODY APPEARED FROM THE SIDE OF THE ASSESSEE NOR AN APPLICATION FOR ADJOURN MENT RECEIVED. WE, THEREFORE, PROCEED TO DECIDE BOTH THE APPEALS ON THE BASIS OF SUBMISSIONS MADE BY THE LD. D.R. AND MATERIALS AVAILABLE ON RECORD. 3. AT THE TIME OF HEARING BEFORE US, SHRI K. MADHUS UDAN, SR. D.R. APPEARED ON BEHALF OF THE REVENUE AND CONTENDED THAT A SEARCH AND SEIZURE UND ER SECTION 132 WAS CONDUCTED IN THE NEPTUNE GROUP OF CASES ON 01.11.2006. THE SEARCH WA S ALSO CONDUCTED AT THE SITE OFFICE OF PATEL AVENUE, NEAR GURU GOVINDDHAM, GURUDWARA, THALTEJ, A HMEDABAD. A SEARCH WARRANT WAS ALSO ISSUED AT THE BUSINESS PREMISES AT 205, AAROHI COMP LEX, NEAR GANESH PLAZA, OPP. NAVRANGPURA BUS STATION, AHMEDABAD. THEREAFTER NOTICE UNDER SEC TION 153A OF THE ACT WAS ISSUED ON 30.01.2008 ASKING THE ASSESSEE TO FURNISH THE RETUR N OF INCOME. IN RESPONSE TO THE SAID NOTICE, NO RETURN OF INCOME WAS FURNISHED. THEREAFTER, FRESH P ROCEEDINGS UNDER SECTION 153A WERE INITIATED VIDE NOTICE DATED 12.12.2008 AND NOTICE UNDER SECTI ON 142(1) OF THE ACT WAS ISSUED. IN 2 ITA NO. 191&192-AHD-2009 COMPLIANCE TO THE STATUTORY NOTICES, THE ASSESSEE F ILED A LETTER DATED 15.12.2008 ENCLOSING THEREWITH COPY OF BALANCE-SHEET AND PROFIT & LOSS A /C. BUT HE HAS NOT FILED THE RETURN OF INCOME AND IT WAS STATED THAT INCOME OF THE SOCIETY IS NOT TAXABLE. THE LD. D.R. POINTED OUT THAT NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS), THE ASSESSEE EXPLAINED HOW THE INCOME OF THE SOCIETY IS NOT TAXABLE. HE FURTHER SUBMITTED THAT BALANCE-SHEET FOR BOTH THE ASSESSMENT YEARS UNDER A PPEAL WERE NEITHER FURNISHED BEFORE THE ASSESSING OFFICER NOR BEFORE THE LEARNED COMMISSION ER OF INCOME TAX(APPEALS). IN THE CIRCUMSTANCES, THE ASSESSING OFFICER WAS HAVING NO OPTION BUT TO ESTIMATE THE INCOME. IN THE IMPUGNED ORDER, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DELETED THE ADDITION ON THE GROUND THAT IN THE ABSENCE OF ANY CORROBORATIVE EVI DENCE, THERE IS NO JUSTIFICATION IN ASSESSING INCOME OF THE ASSESSEE AT RS.10 LAKHS. THE LD. D.R. FURTHER POINTED OUT THAT DURING THE COURSE OF SEARCH AND SEIZURE OPERATION AND SUBSEQUENT ENQUIRY , IT WAS FOUND THAT THE ASSESSEE HAS CONSTRUCTED A COMPLEX NAMED AS PATEL AVENUE COMPLEX AT SURVEY NO.447 OF BODAKDEV AT AN AREA OF 11938 SQ.MTRS. THE PROJECT HAS BEEN DEVELOP ED AND CONSTRUCTED BY THE SOCIETY ITSELF DURING THE PERIOD FROM 2000 TO 2006. IN THESE CIRC UMSTANCES, THE ASSESSEE SHOULD HAVE FURNISHED THE RETURN OF INCOME, BALANCE-SHEET AND VARIOUS OTH ER DETAILS CALLED. SINCE THESE WERE NOT FURNISHED, THE ASSESSING OFFICER WAS HAVING NO OPTI ON BUT TO ESTIMATE THE INCOME. HE ACCORDINGLY CONTENDED THAT ON THESE FACTS, THE LEAR NED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT TO HAVE INSISTED THE ASSESSEE TO FURNISH THE BALANCE-SHEET FOR BOTH THE ASSESSMENT YEARS AND AFTER SCRUTINIZING THE SAME, HE SHOULD HAVE PASSED THE APPROPRIATE ORDER. ALTERNATIVELY, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OUGHT T O HAVE UPHELD THE ADDITION OF RS.10 LAKHS MADE IN EACH OF THE TWO ASSESSMENT YEARS. 4. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE BALANCE-SHE ETS FOR BOTH THE ASSESSMENT YEARS UNDER APPEAL WERE NOT FURNISHED BEFORE THE ASSESSING OFFICER. TH IS FACT IS CLEARLY RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER ITSELF. IN VIEW OF THIS, WE SET ASIDE THE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSEE SHOULD FURNISH BALANCE-SHEETS/ ANNUAL ACCOUNTS FOR BOTH THE ASSESSMENT YEARS UNDER APPEAL AND ALSO PRO DUCE THE BOOKS OF ACCOUNTS AND OTHER DETAILS, WHICH THE ASSESSING OFFICER MAY ASK. THE ASSESSING OFFICER IS ALSO DIRECTED TO ISSUE A 3 ITA NO. 191&192-AHD-2009 QUESTIONNAIRE CALLING VARIOUS DETAILS AND THEREAFTE R RE-FRAME THE ASSESSMENT FOR BOTH THE ASSESSMENT YEARS, IN ACCORDANCE WITH LAW, AFTER GIV ING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. BEFORE PARTING WITH, WE MAY OBSERVE THAT IN CASE, T HE ASSESSEE FAILS TO FURNISH THE ANNUAL ACCOUNTS FOR BOTH THE ASSESSMENT YEARS, IN THAT EVE NT, THE ASSESSING OFFICER IS AT LIBERTY TO ESTIMATE THE INCOME BY PASSING A SPEAKING ORDER FOR BOTH THE ASSESSMENT YEARS. 5. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EALS FILED BY THE REVENUE ARE TREATED AS ALLOWED. THE ORDER PRONOUNCED IN THE COURT ON 08.04.2011 . SD/- SD/- (N.S.SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 08/04/2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT. 3) CIT(A.) CONCERNED, 4) CIT CONCERNED, 5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD TALUKDAR/SR.P.S.