M/s. Vijesh Pritamsingh Jamdar, Bharuch V. The ACIT.,Circle-2, Baroda

ITSSA 298/AHD/2010

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7733 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-02-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 07-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEHUL K PATEL SHRI B K
• Keywords: Document seized; Documents seized

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , !', #$ # % BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER APPEAL(S) BY APPELLANT(S) VS. RESPONDENT SL. NO(S). ITA NO(S)/IT(SS)A NO(S) / BLOCK PERIOD/ ASSESSMENT YEAR(S) APPELLANT (S) RESPONDENT(S) 1. IT(SS)A 298/AHD/10 2001-02 VIJESH PRITAMSINGH JAMADAR DANDIA BAZAR BHARUCH PAN: ACHPJ7661F THE ASSTT.CIT CENTRAL CIR-2 BARODA 2. IT(SS)A 299/AHD/10 2002-03 -DO- -DO- 3. IT(SS)A 300/AHD/10 2003-04 -DO- -DO- 4. IT(SS)A 301/AHD/10 2005-06 -DO- -DO- 5. IT(SS)A 302/AHD/10 2006-07 -DO- -DO- 6. ITA 1068/AHD/10 2007-08 M/S.JAMADAR TRAVELS DANDIA BAZAR BHARUCH PAN : AABFJ 9426 G -DO- 7. IT(SS)A 303/AHD/10 2005-06 -DO- -DO- 8. IT(SS)A 304/AHD/10 2006-07 -DO- -DO- 9. IT(SS)A 305/AHD/10 2001-02 M/S.JAMADAR BRICKS CO., DANDIA BAZAR BHARUCH PAN:AABFJ9425 F -DO- 10. IT(SS)A 306/AHD/10 2002-03 -DO- -DO- 11. IT(SS)A 307/AHD/10 2003-04 -DO- -DO- 12. IT(SS)A 308/AHD/10 2004-05 -DO- -DO- 13. IT(SS)A 309/AHD/10 2005-06 -DO- -DO- 14. IT(SS)A 310/AHD/10 2006-07 -DO- -DO- ASSESSEE(S) BY : SHRI MEHUL K.PATEL REVENUE BY : SHRI B.K.S.PANDYA, CIT-DR & ' '$ / / / / DATE OF HEARING : 29.2.2012 )*+ ' '$ / DATE OF PRONOUNCEMENT : 29.2.2012 IT(SS)298 TO 302/AHD/10, ITA 1068/AHD/10, IT(SS)303,304/AHD/10 AND IT(SS)305 TO 310/AHD/2010 VIJESH P.JAMADAR, M/S.JAMADAR TRAVELS AND M/S.JAMADAR BRICKS CO.VS. ACIT - 2 - #, / O R D E R PER BENCH : THESE 14 APPEALS AT THE BEHEST OF THE DIFFERENT AP PELLANTS HAVE BEEN FILED AGAINST THE LD.CIT(APPEALS)-IV, AHMEDABA D ALL DATED JANUARY 25, 2010. 2. A COMMON GROUND IN ALL THE APPEALS IS GROUND NO. 1 WHICH READS AS UNDER:- (1) THAT THE LEARNED COMMISSIONER OF INCOME-TAX(APP EALS) HAS GRIEVOUSLY ERRED IN DECIDING THE APPEAL EX.PARTE AN D NOT AFFORDING REASONABLE OPP0ORTUNITY TO THE APPELLANT TO REPRESENT THE APPEAL. COMMON GROUND NO.2 :- IN THE CASE OF VIJESH P.JAMAD AR (REPRODUCED FROM A.Y. 2001-02) (2) THAT ON FACTS AND IN LAW THE LEARNED CIT(APPEAL S) HAS GRIEVOUSLY ERRED IN CONFIRMING THE ADDITION OF RS.5 4,000/- (A.Y. 2002-03 RS.60,680, A.Y.2003-04 RS.56,700 AND A.Y. 2005-06 RS.48,000) MADE TOWARDS LOW HOUSE HOLD WITHDRAWALS. COMMON GROUND NOS.4 & 2:- IN THE CASE OF VIJESH P.J AMADAR (REPRODUCED FROM A.Y. 2003-04) THAT THE LEARNED CIT (APPEALS) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.4,02,987/- (A.Y.2005-06 RS.50,677 AND A.Y. 2006-07 RS.3,590) MADE TOWARDS U NEXPLAINED JEWELLERY. IT(SS)298 TO 302/AHD/10, ITA 1068/AHD/10, IT(SS)303,304/AHD/10 AND IT(SS)305 TO 310/AHD/2010 VIJESH P.JAMADAR, M/S.JAMADAR TRAVELS AND M/S.JAMADAR BRICKS CO.VS. ACIT - 3 - COMMON GROUND NO.2 :- IN THE CASE OF M/S.JAMADAR TR AVELS (A.Y. 2007-08) (2) THAT THE LEARNED CIT (APPEALS) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.5,22, 011/- (A.Y. 2005-06 RS.2,27,256/- & A.Y. 2006-07 RS.3,54,073/-) MADE ON ACCOUNT OF DISALLOWANCE OF INTEREST FOR ALLEGED DIV ERSION OF INTEREST BEARING FUNDS FOR NON BUSINESS PURPOSE. COMMON GROUND NOS.2,3 &4:- IN THE CASE OF M/S.JAMAD AR BRICKS CO.. (REPRODUCED FROM A.Y.2001-02) (2) THAT ON FACTS AND IN LAW THE LEARNED CIT(APPEA LS0 HAS GRIEVOUSLY ERRED IN HOLDING THAT THE ASSESSING OFFI CER WAS JUSTIFIED IN REJECTING THE BOOKS OF ACCOUNTS AND ESTIMATING T HE INCOME BY APPLYING THE GROSS PROFIT RATE. (3) THAT ON FACTS AND EVIDENCE ON RECORD THE LEARN ED LEARNED CIT(APPEALS) HAS GRIEVOUSLY ERRED IN CONFIRMING THE GROSS PROFIT RATE OF 25% ON SALE OF BRICKS . (4) THAT ON FACTS AND EVIDENCE ON RECORD THE LEARN ED CIT(APPEALS) HAS GRIEVOUSLY ERRED IN CONFIRMING THE GROSS PROFIT OF 10% ON SALE OF COAL [EXCEPT IN A.Y.2005-06]. 2.1. AT THE OUTSET, WE HAVE BEEN INFORMED THAT ON IDENTICAL FACTS IN RESPECT OF INSUFFICIENT OPPORTUNITY OF HEARING IN G ROUP CASES TITLED AS SHRI BABUBHAI PRITAMSINGH VS. ACIT [IN IT(SS)A NO S.283 TO 287/AHD/2010 FOR A.YS.2001-02 TO 2005-06], M/S.JAM ADAR TRANSPORT IT(SS)298 TO 302/AHD/10, ITA 1068/AHD/10, IT(SS)303,304/AHD/10 AND IT(SS)305 TO 310/AHD/2010 VIJESH P.JAMADAR, M/S.JAMADAR TRAVELS AND M/S.JAMADAR BRICKS CO.VS. ACIT - 4 - VS. ACIT [IN IT(SS)A NOS.288 TO 292 & 1067/AHD/201 0 FOR A.YS 2001- 02, 2002-03 & 2004-05 TO 2007-08] AND SHRI MEHMOOD BHAI VS ACIT [IN IT(SS)A NOS.293 TO 297/AHD/2010 FOR A.YS 2001-0 2 TO 2005-06], THE ITAT B BENCH VIDE AN ORDER DATED 02/07/2010 HAS A LREADY RESTORED THE MATTER BACK TO THE STAGE OF LD.CIT(A); RELEVANT PAR A-10 IS REPRODUCED BELOW:- 10. NOW COMING TO THE FACTS OF THE CASE, WE FIND T HAT THE AO MADE THE ADDITION ON ACCOUNT OF HOUSEHOLD EXPENSES IN TH E CASE OF INDIVIDUALS ON THE GROUND THAT ANNUAL WITHDRAWALS S HOWN BY THE RESPECTIVE ASSESSEES FROM M/S JAMADAR TRAVELS, M/S JAMADAR BRICKS & M/S JAMADAR TRANSPORT CO. WERE NOT SUFFICI ENT FOR MEETING THE HOUSEHOLD EXPENSES. HOWEVER, NEITHER TH E DATE NOR EVEN THE MONTH OF WITHDRAWAL OR EVEN PURPOSE OF WIT HDRAWAL IS EVIDENT FROM THE RESPECTIVE ASSESSMENT ORDERS. IT I S ALSO NOT KNOWN AS TO WHETHER THESE WITHDRAWALS WERE FOR FEES OF EA CH OF THE THREE SCHOOL GOING CHILDREN OR WERE FOR PAYMENT OF ELECTR ICITY OR PERSONAL TELEPHONE BILLS OR FOR CONVEYANCE EXPENSES OR FOR NORMAL FOOD, MILK ETC./CLOTHING OR FOR ANY OTHER EXPENDITU RE. EVEN THE DETAILS OF MONTHLY/ANNUAL FEES OF THE CHILDREN, ELE CTRICITY, TELEPHONE/MOBILE OR CONVEYANCE EXPENSES AND FOOD/MI LK/CLOTHING EXPENSES DO NOT FIND MENTION IN THE IMPUGNED ORDERS . IN THE CASE OF M/S JAMADAR TRANSPORT, THE AO MENTIONED ABOUT CE RTAIN IRREGULARITIES IN THE BOOKS OF ACCOUNTS IN THE AYS. 2001-02 & IT(SS)298 TO 302/AHD/10, ITA 1068/AHD/10, IT(SS)303,304/AHD/10 AND IT(SS)305 TO 310/AHD/2010 VIJESH P.JAMADAR, M/S.JAMADAR TRAVELS AND M/S.JAMADAR BRICKS CO.VS. ACIT - 5 - 2002-03 AS A RESULT OF WHICH BOOKS OF ACCOUNTS WERE REJECTED. THE NATURE OF THESE IRREGULARITIES ARE NOT EVIDENT FROM THE IMPUGNED ORDERS NOR THE ID. DR THREW ANY LIGHT ON THESE ASPE CTS. THE DETAILS OF RELEVANT EXPENSES HAS ALSO NOT BEEN BROUGHT TO O UR NOTICE. EVEN THE RELEVANT SEIZED DOCUMENTS PAGE 132 AND 135 OF A NNEXURE A-16 REFERRED TO IN THE IMPUGNED ORDERS FOR THE AY 2004- 05 TO 2007-08 IN THE CASE OF M/S JAMADAR TRANSPORT WERE NOT PLACE D BEFORE US EITHER BY THE ID. AR ON BEHALF OF THE ASSESSEE OR E VEN THE ID. DR NOR IT WAS CLARIFIED AS TO WHO MET THE EXPENSE ON C ERTAIN CARS/VEHICLES NAMELY 1 TATA SUMO, 1 MARUTI ZEN, 1 I NNOVA, 1 MARUTI OMNI, 1 TOYOTA QUALIS AND 1 SCORPIO, ATTRIBU TED BY THE AO FOR PERSONAL USE OF FAMILY MEMBERS AND NOT FOR THE PURPOSE OF BUSINESS OF THE FIRM. IN NUTSHELL, THE COMPLETE FAC TS ARE NOT EVIDENT FROM THE IMPUGNED ORDERS IN THESE CASES NOR WE RE CLARIFIED BEFORE US. IN THESE CIRCUMSTANCES, IN THE INTERES T OF JUSTICE AND FAIR PLAY, WE CONSIDER IT FAIR AND APPROPRIATE TO S ET ASIDE THE ORDER OF THE ID. CIT(A) AND RESTORE THE MATTER TO HIS FIL E FOR DECIDING THE ISSUES, RAISED IN GROUND NOS. 2 & 3 IN EACH OF THE FIVE APPEALS IN THE CASE OF TWO INDIVIDUALS AND IN THE APPEALS FOR THE AY 2001-02 & 2002-03 IN THE CASE OF FIRM AS ALSO GROUND NOS. 2 TO 4 IN THE APPEALS OF THE FIRM FOR THE AYS. 2004-05 TO 2006-07 , AFRESH IN ACCORDANCE WITH LAW, IN THE LIGHT OF OUR AFORESAID OBSERVATIONS AND OF COURSE AFTER ALLOWING SUFFICIENT OPPORTUNITY TO BOTH THE PARTIES. THE ID. CIT(A) IS FREE TO UNDERTAKE ANY IN DEPENDENT IT(SS)298 TO 302/AHD/10, ITA 1068/AHD/10, IT(SS)303,304/AHD/10 AND IT(SS)305 TO 310/AHD/2010 VIJESH P.JAMADAR, M/S.JAMADAR TRAVELS AND M/S.JAMADAR BRICKS CO.VS. ACIT - 6 - ENQUIRES, IF FOUND NECESSARY AND THEREAFTER, MAY PA SS SUCH ORDERS AS HE DEEMS PROPER, IN ACCORDANCE WITH LAW. THE ASS ESSEE IS ALSO DIRECTED TO CO-OPERATE IN THE PROCEEDINGS BEFORE TH E ID. CIT(A) SO THAT MATTER IS EXPEDITIOUSLY DISPOSED OF. WITH THES E OBSERVATIONS, GROUND NOS. 2 & 3 IN EACH OF THE FIVE APPEALS IN TH E CASE OF TWO INDIVIDUALS AND IN THE APPEALS FOR THE AY 2001-02 & 2002-03 IN THE CASE OF FIRM AS ALSO GROUND NOS. 2 TO 4 IN THE APPEAL OF THE FIRM FOR THE AYS. 2004-05 TO 2006-07 ARE DISPOSED OF. 3. IN THE PRESENT SET OF APPEALS, WE HAVE NOTED THA T NO ONE HAS APPEARED BEFORE THE FIRST APPELLATE AUTHORITY. UN DER THESE CIRCUMSTANCES, IT IS JUSTIFIABLE TO RESTORE ALL THESE APPEALS BACK TO THE STAGE OF THE LD.CIT(A), SO THAT THESE APPEALS CAN ALSO BE DECIDE D ALONG WITH THE SAID APPEALS ALREADY RESTORED BY THE RESPECTED COORDINAT E BENCH. 4. IN THE RESULT, ALL THESE FOURTEEN APPEALS ARE TR EATED AS ALLOWED BUT FOR STATISTICAL PURPOSES. SD/- SD/- ( ANIL CHATURVEDI ) ( MUKUL KR . SHRAWAT ) ACCOUNTANT MEMBER JUDI CIAL MEMBER AHMEDABAD; DATED 29/ 02 /2012 -'.., .../ T.C. NAIR, SR. PS IT(SS)298 TO 302/AHD/10, ITA 1068/AHD/10, IT(SS)303,304/AHD/10 AND IT(SS)305 TO 310/AHD/2010 VIJESH P.JAMADAR, M/S.JAMADAR TRAVELS AND M/S.JAMADAR BRICKS CO.VS. ACIT - 7 - #, ' /0 1#0+ #, ' /0 1#0+ #, ' /0 1#0+ #, ' /0 1#0+/ COPY OF THE ORDER FORWARDED TO : 1. 23 / THE APPELLANT 2. /423 / THE RESPONDENT. 3. 5 / CONCERNED CIT 4. 5() / THE CIT(A)-IV, AHMEDABAD 5. 089 / , , / DR, ITAT, AHMEDABAD 6. 9: ;& / GUARD FILE. #, #, #, #, / BY ORDER, 40 / //TRUE COPY// < <<