Shri Sandeep K.Patel, Ahmedabad V. The ACIT., Cent.Circle-1(1), Ahmedabad

ITSSA 228/AHD/2006

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0256 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 30-07-2014
• Assessment Year: misc
• Appeal Filed On: 17-11-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMALENDU VERMA
• Assessee Lawyers: K H SHAH
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T. (SS)A. NO. 228/AHD/2006 & IT(SS)A NO. 411/AHD/ 2012 (BLOCK PERIOD: 1.04.1995 TO 11.02.2002) SHRI SANDEEP K. PATEL, C- 104, GOYAL INTER CITY, THALTEJ, DRIVE-IN-ROAD, AHMEDABAD PAN NO. AHMPP1302P V/S A.C.I.T., CENTRAL CIRCLE-1(1), AHMEDABAD (APPELLANT) (RESPONDENT) SHRI DEVANG K. PATEL C/O. KETAN H. SHAH, ADVOCATE 903, SAPPHIRE COMPLEX, C.G. ROAD, NAVRANGPURA, AHMEDABAD PAN NO. AHMPP1297R V/S A.C.I.T., CENTRAL CIRCLE-1(1), AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.H. SHAH RESPONDENT BY : SHRI VIMALENDU VERMA CIT/DR ( )/ ORDER DATE OF HEARING : 30-07-2014 DATE OF PRONOUNCEMENT : 22-08-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-III, AHMEDABAD DATED 31.03.2006 FOR BLOCK PERIOD 1.4.199 5 TO 11.2.2002 2. BEFORE US THE LD. A.R. SUBMITTED THAT THERE HAS BEE N DELAY IN FILING THE APPEAL AND HAS FILED THE AFFIDAVIT OF THE ASSESSEE EXPLAIN ING THE DELAY AND REQUESTED IT(SS)A NOS. 228/A HD/06, 441/AHD/2012 . B.P. 01.04.1 995 TO 11.02.2002 2 FOR CONDONING THE DELAY. LD. D.R. OBJECTED TO THE D ELAYED FILING OF APPEAL BY ASSESSEE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. AFTER CONSIDE RING THE SUBMISSION OF THE ASSESSEE AND THE REASONS STATED IN AFFIDAVIT, W E CONDONE THE DELAY AND THE APPEAL IS ADMITTED FOR HEARING. 4. AT THE OUTSET THE LD A.R. SUBMITTED THAT THOUGH THE APPEALS RELATES TO 2 DIFFERENT ASSESSEES BUT THE FACTS AND CIRCUMSTANCES IN BOTH THE CASES ARE IDENTICAL EXCEPT FOR THE AMOUNT AND THE GROUNDS RAI SED ARE ALSO SIMILAR. HE THEREFORE SUBMITTED THAT THE SUBMISSION MADE BY HIM IN CASE OF ONE WOULD BE EQUALLY APPLICABLE TO THE OTHER AND THEREFORE BO TH THE APPEALS CAN BE HEARD TOGETHER. WE THUS PROCEED TO DISPOSE OF BOTH THE APPEALS BY WAY OF A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND PROCEED WITH THE FACTS IN THE CASE OF ITA NO. 228/AHD/06 IN THE CASE OF SANDE EP PATEL. 5. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 6. ASSESSEE IS AN INDIVIDUAL AND AN EVENT MANAGER AND SHOW ORGANIZER. IN THIS CASE SEARCH OPERATION U/S. 132 OF THE ACT WAS CARRI ED OUT ON 11.02.2002. THEREAFTER BLOCK RETURN U/S. 158BC OF THE ACT WAS F ILED BY ASSESSEE ON 11.08.2003 DISCLOSING NIL UNDISCLOSED INCOME. THERE AFTER THE BOOKS OF ACCOUNTS WERE GIVEN FOR SPECIAL AUDIT U/S. 142(2A) OF THE ACT AND THEREAFTER ASSESSMENT WAS FRAMED U/S. 158BC VIDE ORDER DATED 1 1.10.2004 AND THE TOTAL UNDISCLOSED INCOME WAS ASSESSED AT RS. 25,67,090/-. AGGRIEVED BY THE ORDER OF A.O, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT( A). LD. CIT(A) VIDE ORDER DATED 31.03.2006 GRANTED PARTIAL RELIEF TO TH E ASSESSEE. AGGRIEVED BY IT(SS)A NOS. 228/A HD/06, 441/AHD/2012 . B.P. 01.04.1 995 TO 11.02.2002 3 THE ORDER OF LD CIT(A), ASSESSEE IS NOW IN APPEAL B EFORE US. BEFORE US, APART FROM RAISING VARIOUS GROUNDS, ASSESSEE HAS A LSO RAISED ADDITIONAL LEGAL GROUNDS CHALLENGING THE ASSESSMENT. THE ADDITIONAL LEGAL GROUNDS RAISED BY THE ASSESSEE READS AS UNDER:- 32. IN NOT APPRECIATING THE FACTS THAT, THERE IS NO VALID SERVICE OF NOTICE U/S. 143(2). IT IS PRAYED THAT AS PER RTI ORDER DATED 06.06.2012, NOTICE IS SERVED TO UNK NOWN/UNAUTHORIZED PERSON AND THEREFORE, AS PER CASE LAW AT PAPER BOOK PAGE 954 TO 957, THE SERVICE OF N OTICE IS BAD IN LAW AND VOID. 33. IN NOT APPRECIATING THE FACTS AND/LAW THAT, AS PER ANNEXURE 'A' TO THE LETTER DATED 10.03.2010, TH E ASSESSMENT FRAMED IS TIME BARRED U/S.!57BE(L)(B). 34. IN NOT APPRECIATING THE FACTS THAT, SEARCH ON 0 5.03.2002 & THEREFORE IN A NORMAL PROVISION, THE ASSESSMENT IS GETTING TIME BARRED ON 05.03.2004, HO WEVER THE DIRECTION U/S.!42(2A) WAS ISSUED ON 16.02.2004 AND THEREFORE AS PER, BAJARANG TEXTILE 8 3 TTJ 566 (PAPER BOOK PAGE 913 TO 916 OF LETTER DAT ED 18.06.2012), THIS DIRECTION AND ASSESSMENT MADE BAD IN LAW AND VOID. 35.THAT IT IS PRAYED THAT, AS PER SUBMISSION DATED 28.01.2004 (LETTER DATED 18.06.2012, PAGE 923 TO 92 9), THE BOOKS HAS BEEN PREPARED IN A TALLY 5.4 IN THERE FORE AS PER DECISION OF, 332 ITR 115 (GUJARAT) IN ALIDHARA TAXPRO AND ALSO 350 ITR 432 (DEL), IN DELH I DEVELOPMENT AUTHORITY, THE PROVISION OF SEC.L42(2 A) IS NOT APPLICABLE AND AS SUCH THE WHOLE PROCEEDINGS IS BAD IN LAW AND VOID. 7. BEFORE US, LD A.R. SUBMITTED THAT THE ADDITIONAL GR OUNDS WERE NOT RAISED EITHER BEFORE A.O AND LD. CIT(A) BUT ARE RAISED BEF ORE THE HONBLE TRIBUNAL FOR THE FIRST TIME. HE FURTHER SUBMITTED THAT THE A DDITIONAL GROUND BEING LEGAL IN NATURE AND SINCE IT GOES TO THE ROOT OF THE MATT ER, THE ADDITIONAL GROUNDS BE ADMITTED IN VIEW OF THE DECISION OF HONBLE APEX CO URT IN THE CASE OF NATIONAL THERMAL POWER LTD. 229 ITR 383. THE LD D.R . ON THE OTHER HAND OBJECTED TO THE ADMISSION OF ADDITIONAL GROUND. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. BEFORE US, ASSESSEE HAS RAISED ADDITIONAL GROUNDS W HICH ARE ADMITTED BEING LEGAL IN NATURE. WE ALSO FIND THAT THE ADDITIONAL G ROUNDS WERE NOT RAISED BY THE ASSESSEE EITHER BEFORE A.O OR LD. CIT(A) AND TH EREFORE FEEL THAT THE ISSUE RAISED IN THE ADDITIONAL GROUNDS NEEDS TO BE EXAMINED AT THE END OF LD. CIT(A). WE THEREFORE REMIT THE ISSUE TO THE FILE O F LD. CIT(A) FOR HIM TO RECORD THE FINDINGS AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW. IT(SS)A NOS. 228/A HD/06, 441/AHD/2012 . B.P. 01.04.1 995 TO 11.02.2002 4 LD. CIT(A) SHALL ALSO DECIDE THE GROUNDS RAISED ON MERITS AFRESH AFTER CONSIDERING THE ADMISSIBILITY OF SEIZED MATERIAL. N EEDLESS TO STATE THAT LD. CIT(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. IT(SS)A NO. 411/AHD/2012 I N THE CASE OF DEVANG PATEL 9. BEFORE US, LD. A.R. SUBMITTED THAT IT WANTS TO WITH DRAW THE APPEAL FILED IN THE CASE OF DEVANG PATEL IN IT(SS)A N0. 411/AHD/2012 TO WHICH LD. D.R. HAD NO OBJECTION. WE THEREFORE DISMISS THE APPEAL AS WI THDRAWN. 10. IN THE RESULT, ASSESSEES APPEAL IN IT(SS)A NO. 228 /AHD/2006 IS ALLOWED FOR STATISTICAL PURPOSES AND ASSESSEES APPEAL IN I T(SS)A NO. 441/AHD/2012 IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 22 -08 - 2014. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. RAJESH 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,AH MEDABAD