The DCIT, Central Circle-1(1), Ahmedabad V. M/s. Navratna Organisers & Developers Pvt.Ltd., Ahmedabad

ITSSA 528/AHD/2010

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9410 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-07-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 02-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Business income; Additional evidence
• Section: 143(3); 153A

Judgement Text

IT(SS)A NOS. 71,526,527 ,528 & 529/A/2010 . A.YS. 2001-02 TO 2005 -06 & CO.NOS.89,179,180,181 & 182/A/2010 A.YS. 2001-02 TO 20 05- 06 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T.(SS) A. NOS. 71,526,527,528 & 529 /AHD/2010 (ASSESSMENT YEARS: 2001-02 TO 2005-06) THE DCIT CENTRAL CIRCLE 1(1), AHMEDABAD (APPELLANT) VS. M/S NAVRATNA ORGANISERS & DEVELOPERS PVT. LTD. 2 ND FLOOR, KAYCREST, OPP. GUJARAT GAS CO. LTDL, NR. PARIMAL CROSSING AHMEDABAD (RESPONDENT) C.O. NOS. 89,179,180,181& 182/AHD/2010 (ASSESSMENT YEARS: 2001-02 TO 2005-06) M/S NAVRATNA ORGANISERS & DEVELOPERS PVT. LTD. 2 ND FLOOR, KAYCREST, OPP. GUJARAT GAS CO. LTDL, NR. PARIMAL CROSSING AHMEDABAD (APPELLANT) VS. THE DCIT CENTRAL CIRCLE 1(1), AHMEDABAD (RESPONDENT) PAN: AAACN5181E APPELLANT BY : SHRI SUBHASH BAINS. CIT D. R. RESPONDENT BY : NONE ( )/ ORDER DATE OF HEARING : 11-07-201 3 DATE OF PRONOUNCEMENT : 30-08-2013 IT(SS)A NOS. 71,526,527 ,528 & 529/A/2010 . A.YS. 2001-02 TO 2005 -06 & CO.NOS.89,179,180,181 & 182/A/2010 A.YS. 2001-02 TO 20 05- 06 2 PER BENCH: 1. THESE FIVE APPEALS ARE FILED BY THE REVENUE AGAI NST THE ORDER OF CIT(A)-I, AHMEDABAD FOR ASSESSMENT YEAR 2001-02 ORDER DATED 3 0.11.2009, FOR ASSESSMENT YEAR 2002-03 ORDER DATED 23.03.2010, ASS ESSMENT YEAR 2003-04 ORDER DATED 23.03.2010, FOR ASSESSMENT YEAR 2004-05 ORDER DATED 23.03.2010 AND FOR ASSESSMENT YEAR 2005-06 ORDER DA TED 23.03.2010. ASSESSEE HAS ALSO FILED CROSS OBJECTIONS FOR ALL TH E YEARS IN WHICH THE REVENUE IS IN APPEAL. 2. ON THE DATE OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE BUT HOWEVER AN ADJOURNMENT APPLICATION WAS FILED REQUESTING FOR ADJOURNMENT AS ACCORDING TO THE ASSESSEE FOR FINAL PREPARATION SOMETIME WAS REQUIRED. FROM THE RECORDS IT IS SEEN THAT THE CASE WAS ADJOURNED ON 3 OCCASIONS AT THE REQUEST OF ASSESSEE AND ON 6 OCCASIONS THE HEARING WAS ADJO URNED DUE TO NON FUNCTIONING OF BENCH. WE THEREFORE ARE OF THE VIEW THAT SINCE SUFFICIENT TIME WAS ALREADY MADE AVAILABLE TO ASSESSEE IN PAST, THE REQUEST FOR ADJOURNMENT ON THE PRESENT DATE OF HEARING WAS UNCALLED FOR AND WE THEREFORE REJECT THE ADJOURNMENT APPLICATION AND WE THUS PROCEED TO DECI DE THE APPEAL EX-PARTE QUA THE ASSESSEE. AT THE OUTSET THE LEARNED D.R. SU BMITTED THAT IN ALL THE APPEALS, THE MATTERS ARE IDENTICAL AND THEREFORE AL L THE APPEALS CAN BE DECIDED TOGETHER. WE FIRST TAKE UP IT(SS) NO. 71/AHD/2010 FOR A.Y. 20 01-02. 3. THE FACTS AS CULLED OUT FROM THE ORDER OF LOWER AUTHORITIES ARE AS UNDER. 4. ASSESSEE IS COMPANY ENGAGED IN THE BUSINESS OF D EVELOPMENT OF VARIOUS SCHEMES ON THE LAND OWNED AND BELONGING TO DIFFEREN T ENTITIES. ASSESSEE IS A FLAGSHIP COMPANY OF NAVRATNA GROUP. SEARCH AND SEIZ URE ACTION WAS CONDUCTED ON THE NAVRATNA GROUP ON 10.05.2006 AND S UBSEQUENT DATES. IT(SS)A NOS. 71,526,527 ,528 & 529/A/2010 . A.YS. 2001-02 TO 2005 -06 & CO.NOS.89,179,180,181 & 182/A/2010 A.YS. 2001-02 TO 20 05- 06 3 DURING THE COURSE OF SEARCH AND SURVEY OPERATIONS V ARIOUS DOCUMENTS WERE SEIZED/ IMPOUNDED, STATEMENTS OF THE MAIN PERSONS W ERE ALSO RECORDED. PROCEEDINGS UNDER SECTION 153A WAS INITIATED BY ISS UING NOTICE UNDER SECTION 153A(1)(A) ON 4.05.2007 AND SERVED UPON ASS ESSEE ON 11.05.2007. IN RESPONSE TO THE NOTICE, ASSESSEE FILED RETURN OF INCOME ON 8.06.2007 DECLARING TOTAL INCOME AT RS. NIL. THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 153A(1)(B) READ WITH SECTION 143(3) A ND THE TOTAL INCOME WAS DETERMINED AT RS. 34,71,610/- VIDE ORDER DATED 31. 12.2008. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESSEE CARRIED TH E MATTER BEFORE CIT(A). CIT(A) VIDE ORDER DATED 30.11.2009 GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A) THE REVE NUE IS NOW IN APPEAL BEFORE US, ASSESSEE HAS ALSO FILED CROSS OBJECTION. THE GROUNDS RAISED IN THE APPEAL READS AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELE TING THE ADDITION OF RS.3,74,574/- MADE ON ACCOUNT OF BUSINESS INCOME. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELE TING THE ADDITION OF UNEXPLAINED CASH CREDIT OF RS.20,61,328/- MADE BY T HE ASSESSING OFFICER. 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELE TING THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED LIABILITY OF RS.10,1 9,552/- 4. THE CIT(A) HAS ERRED IN ADMITTING THE ADDITIONAL EV IDENCE IN CONTRAVENTION OF RULE 46A OF THE INCOME TAX RULES, 1962.HE HAS ALSO NOT ACCORDED THE ASSESSING OFFICER AN OPPORTUNITY O F BEING HEARD AND TO REBUT THE EVIDENCES PRODUCED BY THE ASSESSEE IN CON TRAVENTION TO THE RATIO LAID DOWN BY THE GUJARAT HIGH COURT IN THE CA SE OF CIT(GUJARAT)VS.VALIRAM BHERUMAL,134 ITR 214. 5. AT THE OUTSET, THE LEARNED D.R. SUBMITTED THAT O NE OF THE COMMON GROUND IN ALL THE APPEALS IS WITH RESPECT TO ADMISSION OF ADD ITIONAL EVIDENCE IN CONTRAVENTION OF RULE 46A OF THE INCOME TAX RULES, 1962. HE SUBMITTED THAT CIT(A) DID NOT ACCORD THE ASSESSING OFFICER OPPORTU NITY OF BEING HEARD AND TO REBUT THE EVIDENCES PRODUCED BY THE ASSESSEE. HE T HEREFORE URGED THAT THE MATTER IN ALL THE APPEALS BE REMITTED BACK TO THE F ILE OF ASSESSING OFFICER SO THAT THE ADDITIONAL EVIDENCES SUBMITTED BY THE ASSE SSEE CAN BE CONSIDERED IT(SS)A NOS. 71,526,527 ,528 & 529/A/2010 . A.YS. 2001-02 TO 2005 -06 & CO.NOS.89,179,180,181 & 182/A/2010 A.YS. 2001-02 TO 20 05- 06 4 BY HIM. HE ALSO RELIED ON THE DECISION IN THE CASE OF CIT VS. VALIMOHMED AHMEDBHAI (1982) 134 ITR 214. 6. WE HAVE HEARD THE LEARNED D.R. AND PERUSED THE M ATERIAL ON RECORD. FROM THE ORDER OF ASSESSING OFFICER IT IS NOTICED THAT A SSESSEE WAS ASKED TO SUBMIT VARIOUS DETAILS AS NOTED IN HIS ORDER AND THAT THE SAME WERE NOT FURNISHED BY THE ASSESSEE. ON PERUSING THE ORDER OF CIT(A), WE F IND THAT THE ASSESSEE HAS FURNISHED ADDITIONAL EVIDENCE IN THE FORM OF COPIES OF WORKING PROGRESS, ACCOUNT DETAILS OF WORKING PROGRESS ACCOUNT FOR VAR IOUS YEARS. THE ASSESSEE HAD ALSO SUBMITTED COPIES OF THE AGREEMENTS. WE FU RTHER FIND THAT CIT(A) HAS NOT CALLED FOR REMAND REPORT ON THE ADDITIONAL EVID ENCES SUBMITTED BY THE ASSESSEE IN ALL THE YEARS, NOR HAS HE CALLED FOR AN Y REPORT OR COMMENTS FROM THE ASSESSING OFFICER. HE HAS ADMITTED ADDITIONAL E VIDENCES WITHOUT GIVING AN OPPORTUNITY TO ASSESSING OFFICER TO CROSS EXAMINE R EBUT THE ADDITIONAL EVIDENCE FILED BY ASSESSEE BUT PROCEEDED TO DECIDE THE ISSUE. 7. RULE 46A(1) OF THE I.T. RULES 1962 STIPULATES TH E GROUNDS ON WHICH THE APPELLATE AUTHORITY CAN ALLOW ADDITIONAL EVIDENCE. SUB RULE (2) PROVIDES THAT THE APPELLATE AUTHORITY WHILE ADMITTING SUCH EVIDEN CE MUST RECORD ITS REASONING IN WRITING. SUB RULE (3) PROVIDES THAT N O EVIDENCE PRODUCED UNDER SUB RULE(1) SHALL BE TAKEN INTO ACCOUNT UNLESS THE ASSESSING OFFICER HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF EXAMINING THE EVI DENCE OR DOCUMENTS PRODUCED OR PERMITTED TO CROSS EXAMINE THE WITNESSE S EXAMINED OR PERMITTED TO PRODUCE ANY EVIDENCE OR DOCUMENT IN REBUTTAL TO THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. 8. IN THE CASE OF CIT VS. VALIMOHMED AHMEDBHAI (198 2) 134 ITR 214 (GUJ) THE HON. GUJ. HIGH COURT HAS HELD AS UNDER:- THE MERE FACT THAT THE NOTICE OF HEARING OF THE AP PEAL WAS GIVEN TO THE 1TO WOULD NOT MEET THE REQUIREMENTS OF R. 46A. IT IS CL EAR FROM THE RULE THAT THE AAC SHOULD NOT HAVE TAKEN INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-R. IT(SS)A NOS. 71,526,527 ,528 & 529/A/2010 . A.YS. 2001-02 TO 2005 -06 & CO.NOS.89,179,180,181 & 182/A/2010 A.YS. 2001-02 TO 20 05- 06 5 (1), UNLESS THE ITO HAD BEEN ALLOWED A REASONABLE O PPORTUNITY TO EXAMINE THE EVIDENCE OR TO CROSS-EXAMINE THE WITNESS WHOSE EVIDENCE WAS TAKEN ON RECORD OR TO PRODUCE ANY EVIDENCE IN REBUTTAL OF TH E ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE. EVEN IF NO SUCH RULE WAS IN EXISTENCE, ENDS OF JUSTICE AND FAIR PLAY DEMAND THAT WHEN AN ASSESSEE PRODUCES ADDITIONAL EVIDENCE IN HIS APPEAL AN OPPORTUNITY IS GIVEN TO T HE ITO TO TEST THE EVIDENCE OR TO COUNTER THE EFFECT OF THE EVIDENCE BY PRODUCI NG EVIDENCE IN REBUTTAL OR OTHERWISE. A NOTICE OF APPEAL CANNOT BE EQUATED WIT H NOTICE OF A FUTURE APPLICATION TO LEAD ADDITIONAL EVIDENCE WHICH NO ON E COULD HAVE ANTICIPATED OR REASONABLY FORESEEN. ORDINARILY, THE APPEAL WOULD B E DECIDED ON THE EVIDENCE RECORDED IN THE COURSE OF ASSESSMENT PROCE EDINGS. THE ITO, THEREFORE, MAY NOT, IN A GIVEN CASE, THINK IT NECES SARY TO REMAIN PRESENT AT THE HEARING OF THE APPEAL. HE, HOWEVER, CANNOT BE EXPEC TED TO ANTICIPATE THAT ADDITIONAL EVIDENCE MIGHT BE PRODUCED BY THE ASSESS EE IN HIS APPEAL. IT IS FOR THIS REASON THAT IT IS NECESSARY TO GIVE HIM AN OPP ORTUNITY TO MEET THE ADDITIONAL EVIDENCE. THE AAC OUGHT TO HAVE GIVEN AN OPPORTUNITY TO THE ITO TO EXAMINE THE ADDITIONAL EVIDENCE OR TO CROSS-EXAM INE THE WITNESSES WHOSE EVIDENCE WAS TAKEN ON RECORD OR TO REBUT THE ADDITI ONAL EVIDENCE. 9. CONSIDERING THE TOTALITY OF FACTS AND IN VIEW O F THE AFORESAID DECISION OF HON. HIGH COURT WE ARE OF THE VIEW THAT TO MEET THE ENDS OF JUSTICE, THE MATTER BE REMANDED TO THE FILE OF ASSESSING OFFICER. WE THERE FORE DIRECT THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH AS PER LAW AND A FTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND ADDITIONAL EVIDENCE S FILED BY THE ASSESSEE BEFORE CIT(A) AND OTHER EVIDENCE THAT IT MAY LIKE T O RELY UPON AND AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO ASSESSEE. TH E ASSESSEE IS ALSO DIRECTED TO CO-OPERATE BY PROMPTLY FURNISHING THE D ETAILS CALLED FOR BY ASSESSING OFFICER. THUS THIS GROUND OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 10. SINCE THE ENTIRE MATTER HAS BEEN REMITTED BACK TO THE FILE OF ASSESSING OFFICER, THE OTHER GROUNDS DO NOT SURVIVE. THUS THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 11. ONE OF THE GROUND IN ALL THE APPEALS IS WITH R ESPECT TO CONTRAVENTION OF RULE 46A, WE FOR REASONS GIVEN HEREINABOVE WHILE DECIDIN G THE APPEAL FOR A.Y. IT(SS)A NOS. 71,526,527 ,528 & 529/A/2010 . A.YS. 2001-02 TO 2005 -06 & CO.NOS.89,179,180,181 & 182/A/2010 A.YS. 2001-02 TO 20 05- 06 6 2001-02 ALSO REMIT ALL THE APPEALS TO THE FILE OF ASSESSING OFFICER WITH SIMILAR DIRECTIONS. 12. SINCE ALL THE APPEALS OF THE REVENUE ARE RESTOR ED TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION AND THEREFORE WE ARE OF THE VIEW THAT THE ISSUES IN THE PRESENT COS OF THE ASSESSEE FOR ALL THE ASS ESSMENT YEARS MAY ALSO BE RESTORED TO THE FILE OF ASSESSING OFFICER. THUS, T HE COS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 13. IN THE RESULT, ALL THE APPEALS OF THE REVENUE AND T HE COS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 30 -08 - 2013. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY 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.REGISTR AR ITAT ,AHMEDABAD