Hemang T. Bhatt, Ahmedabad V. The Dy.CIT.,Circle-9, Ahmedabad

ITSSA 23/AHD/2008

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8664 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-01-2011
• Assessment Year: misc
• Appeal Filed On: 25-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K VYAWAHARE
• Assessee Lawyers: VISHANBHAI S PATEL
• Keywords: Opportunity of being heard; Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI D. C. AGRAWAL, ACCOUNTANT MEMBER IT(SS)A NO.23/AHD/2008 BLOCK PERIOD FROM 1/4/85 TO 31/3/95 & 1/4/95 TO 21/9/95 DATE OF HEARING:0.1.11 DRAFTED:24.1.11 SHRI HEMANG T BHATT, B-1, SHYAM GOKUL APARTMENT, 132 FEET CIRCULAR ROAD, P.O. JIVRA PARK, AHMEDABAD PAN NO.AATPB2851K V/S . DY. COMMISSIONER OF INCOME-TAX, CIRCLE-9, AHMEDABAD (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI VISHANBHAI S PATEL, AR RESPONDENT BY:- SHRI K.K. VYAWAHARE, CIT-DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF DY. COMMISSIONER OF INCOME-TAX, CIRCLE-9, AHMEDABAD VIDE HIS ORDER DATED 26-12-2007. THE ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-9, AHMEDABAD U/S143(3) R.W.S. 158BC &254 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFER RED TO AS THE ACT) FOR BLOCK PERIOD 01-04-85 TO 21-09-1995. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS THA T THE ASSESSING OFFICER HAS MADE THE ADDITION WITHOUT PROVIDING REASONABLE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE AND THE RELEVANT GROUND NO.2-6 , WHICH READ AS UNDER:- 2.0 THE AO ERRED IN FRAMING THE ORDER WITHOUT FOLL OWING DIRECTIONS OF THE INCOME TAX APPELLATE TRIBUNAL. THE ASSESSING OFFICE R OUGHT TO HAVE COMPLIED WITH DIRECTIONS OF THE INCOME TAX APPELLATE TRIBUNA L. THE ORDER FRAMED WITHOUT FOLLOWING THE DIRECTIONS IS BAD IN LAW AND BE QUASH ED. 3.0 THE ASSESSING OFFICER ERRED IN ASSESSING TOTAL UNDISCLOSED INCOME AT RS.2,12,120/- WHICH IS ERRONEOUS AND CONTRARY TO TH E FACTS. THE ASSESSMENT HAS BEEN MADE BY THE ASSESSING OFFICER WITHOUT AFFO RDING REASONABLE IT(SS)A NO.23/AHD/2008 B.P. 1/4/85 TO 31/3/95 & 1/4/95 TO 21/9/95 SH HEMANG T BHATT V. DCIT CIR-9, ABD PAGE 2 OPPORTUNITY OF BEING HEARD AND IS IN CONTRADICTION TO THE FACTS AND PROVISIONS OF LAW. THE APPELLANT SUBMITS THAT ASSESSMENT BE SCALE D DOWN. 4.0 THE ASSESSING OFFICER ERRED IN MAKING ADDITION OF RS.40,000/- ON ESTIMATE BASIS. THE APPELLANT SUBMITS THAT ADDITION IS CONTR ARY TO THE FACTS AND PROVISIONS OF LAW AND THE ADDITIONS BE DELETED. 4.1 THE APPELLANT WITHOUT PREJUDICE TO ABOVE SUBMIT S THAT ADDITION IN ANY EVENT IS EXCESSIVE. THE APPELLANT SUBMITS THAT APPR OPRIATE RELIEF BE ALLOWED AS PER THE PROVISION OF LAW. 5.0 THE ASSESSING OFFICER ERRED IN NOT PROPERLY ALL OWING BENEFIT OF SET OFF AVAILABLE TO THE APPELLANT IN RESPECT OF SHARE IN P ROFITS AND GAINS OF FIRM IN WHICH THE APPELLANT WAS A PARTNER. THE APPELLANT SU BMITS THAT THE ASSESSING OFFICER BE DIRECTED TO ALLOW SET OFF IN ACCORDANCE WITH THE PROVISIONS OF LAW AND THE FACTS IN THE CASE OF THE APPELLANT. 6.0 THE ASSESSING OFFICER ERRED IN NOT PROPERLY COM PUTING THE TAX PAYABLE BY YOUR APPELLANT AND HE HAS NOT TAKEN INTO CONSIDERAT ION THE APPROPRIATION AVAILABLE TO YOUR APPELLANT OUT OF CASH SEIZED DURI NG THE PROCEEDINGS U/S.132. IT IS RESPECTFULLY SUBMITTED THAT THE CASH SEIZED I S AVAILABLE FOR APPROPRIATION IN VIEW OF THE PETITION MADE BY THE APPELLANT AND THE ASSESSING OFFICER OUGHT TO HAVE ALLOWED THE SAME. IT IS RESPECTFULLY SUBMITTED THAT THE ASSESSING OFFICER BE DIRECTED TO ALLOW THE RELIEF IN RESPECT OF CASH SEIZED AS PER THE PROVISIONS OF LAW. 3. AT THE OUTSET LD. CIT-DR STATED THAT LET THE ASS ESSEE BE GIVEN ANOTHER OPPORTUNITY OF BEING HEARD AND LET THE ASSESSING OF FICER FRAME BLOCK ASSESSMENT AND DECIDE THE ISSUE ACCORDING TO THE PROVISIONS OF THE ACT. WE FIND THAT EVEN THE PLEA OF ASSESSEE IS THAT THE ASSESSING OFFICER HAS NOT PROVIDED PROPER OPPORTUNITIES OF BEING HEARD AND ACCORDINGLY, DIRECT THE ASSESSIN G OFFICER TO PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS IS SUE OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE . 4. IN THE RESULT, ASSESSEE APPEAL IS ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 31/01/2011 SD/- SD/- (D.C.AGRAWAL) (MAHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 31/01/2011 *DKP COPY OF THE ORDER FORWARDED TO :- IT(SS)A NO.23/AHD/2008 B.P. 1/4/85 TO 31/3/95 & 1/4/95 TO 21/9/95 SH HEMANG T BHATT V. DCIT CIR-9, ABD PAGE 3 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD