Shri Manilal Amulakhrai Kothari, Ahmedabad V. The Dy.CIT.,C.C.1(1), Ahmedabad

ITSSA 538/AHD/2011

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1868 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-03-2016
• Assessment Year: 1999-2000
• Appeal Filed On: 22-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIBHA BHALLA
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHM EDABAD , (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI S. S. GOD ARA, J.M.) ( , !' !#!#$% , &' ) IT(SS)A NO: 538/AHD/2011 (ASSESSMENT YEAR: 1999-2000) SHRI MANILAL AMULAKHRAI KOTHARI C/O. KETAN H. SHAH, ADVOCATE 903, SAPPHIRE COMPLEX, C. G/ ROAD, NAVRANGPURA, AHMEDABAD VS. DY. COMMISSIONER OF INCOME TAX, C.C. 1(1), AHMEDABAD PAN: ACMPK0159J (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SMT. VIBHA BHALLA, CIT D.R. DATE OF HEARING : 16-03-201 6 DATE OF PRONOUNCEMENT : 06-04-2016 ( )/ ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-XI, AHMEDABAD, DATED 10.06.2009 FOR A.Y. 1999-2000. 2. FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER: IT(SS)A NO .538/AHD/2011 (SHRI MANILAL A. KOTHARI VS. DCIT) A.Y. 1999-2000 2 3. A SEARCH ACTION U/S 132 OF THE ACT WAS CARRIED O UT AT DHARAMDEV BUILDERS GROUP AND THE RESIDENCE OF SHRI SANJAY KOTHARI ON 0 9.02.2005 WHEREIN FDRS WORTH RS. 51,65,595/- (WHICH INCLUDED FDRS WORTH R S. 19,07,089/- IN THE NAME OF ASSESSEE) WERE FOUND AND SEIZED. ACCORDINGLY, NOTIC E U/S. 153C WAS SERVED ON ASSESSEE ON 25.5.2007 AND IN RESPONSE TO WHICH ASSE SSEE FILED THE RETURN OF INCOME FOR A.Y. 1999-2000 ON 19.9.2007 DECLARING TOTAL INC OME OF RS. 1,53,130/-. THEREAFTER, VIDE ORDER DATED 31.12.2008, ASSESSMENT WAS FRAMED U/S 153C R.W.S. 153A OF THE ACT AND THE TOTAL INCOME WAS DETERMINED AT RS. 2,61,610/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER B EFORE LD. CIT(A) WHO VIDE ORDER DATED 10.06.2009 (IN APPEAL NO. CIT(A) XI / 780 / 08-09) GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT( A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS. THE FOLLOWING GROUNDS ARE WITHOUT PREJUDICE TO EAC H OTHER. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSION ER OF INCOME TAX (APPEALS) ERRED 1. IN NOT APPRECIATING THE FACTS AND SUBMISSIONS MA DE BEFORE HIM INTER ALIA ERRED IN NOT APPRECIATING THE GROUND RAISED BEFORE HIM THAT THE WHOLE PROCEEDINGS UNDER SEC. 153 R.W.S. 153A IS ILLEGAL AND UNLAWFUL. 2. IN NOT APPRECIATING THE FACTS AND IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THERE IS NO JUSTIFICATION FOR CONFIRMING THE ADDITION MAD E BY THE ASSESSING OFFICER UNDER SEC.69B OF THE ACT AMOUNTING TO RS.61,500/-. 3. IN NOT APPRECIATING THE FACTS THAT THE ASSESSING OFFICER HAS ALREADY DEMONSTRATED THE FACTUAL ASPECT, AND AS SUCH, THERE IS NO JUSTIFICAT ION FOR GIVING CONTRARY FINDING AS PER HIS APPEAL ORDER PAGE 5 PARA 5.1.3. IT IS PRAYED THAT H E OUGHT TO HAVE DELETED THE WHOLE ADDITION INSTEAD OF GIVING DIRECTION TO THE ASSESSI NG OFFICER. 4. IN NOT APPRECIATING THE FACTS THAT THERE IS NO J USTIFICATION FOR CONFIRMING ADDITION ON ACCOUNT OF COMMISSION EXPENDITURE OF RS.17,000/- ON THE GROUND THAT NO PRUDENT BUSINESSMAN CAN INCUR THE AMOUNT OF RS.17,000/- FOR EARNING COMMISSION INCOME AMOUNTING TO RS.20,000/-. IT IS PRAYED THAT THE ASS ESSING OFFICER HAS NO POWER TO DIRECT THE ASSESSEE TO DO THE BUSINESS IN A PARTICULAR MAN NER AND HE OUGHT TO HAVE DELETED THE ADDITION OF RS.17,000/-. IT(SS)A NO .538/AHD/2011 (SHRI MANILAL A. KOTHARI VS. DCIT) A.Y. 1999-2000 3 4. LATER ON, ASSESSEE VIDE LETTER DATED 6.7.2015 HA S RAISED THE ADDITIONAL GROUND, UNDER RULE 35A OF THE INCOME TAX APPELLATE RULES 1963, WHICH READS AS UNDER: 1. THE ASSESSMENT ORDER PASSED BY THE LD. A.O IS B ARRED BY LIMITATION AS THE LD. A.O. HAD RECEIVED INFORMATION ON 15-05-2007 AND HEN CE THE PROCEEDINGS U/S 153C OF THE INCOME TAX ACT, 1961 TO BE CONDUCTED FO R THE A.Y 2002-2003 TO A.Y 2007-2008. 4.1 WE FIND THAT IN THE ADDITIONAL GROUND RAISED BY THE ASSESSEE NOW BEFORE US, THE ASSESSEE HAS CHALLENGED THE ASSESSMENT FRAMED U /S.153C OF THE ACT. THIS GROUND WAS NOT RAISED BEFORE LD. CIT(A). SINCE THE GROUND RAISED BY THE ASSESSEE IS A LEGAL GROUND, WE ADMIT THE ADDITIONAL GROUND R AISED BY THE ASSESSEE. 5. ON THE DATE OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED ON HIS BEHALF AND FURTHER THERE IS NOTHING ON RECORD TO JUSTIFY THE ABSENCE OF ASSESSEE OR HIS RE PRESENTATIVE. FROM THE RECORDS, IT IS SEEN THAT THE NOTICE INTIMATING THE ASSESSEE ABO UT HEARING WAS SENT THROUGH REGISTERED POST ON 02.02.2016 BUT THE NOTICE WAS RETURNED BACK UNDELIVERED BY THE POSTAL AUTHORITIES WITH THE REMARKS REFUSED. IN SUCH A SITUATION, IN LIGHT OF RULE 24 OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, WE PROCEED TO DISPOSE OF THE APPEAL ON MERITS, EX PARTE QUA THE ASSESSEE, ON THE BASIS OF SUBMISSIONS OF REVENUE AND MATERIAL ON RECORD. 6. BEFORE US, LD. D.R. SUPPORTED THE ORDER OF A.O. 7. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATER IAL ON RECORD. BEFORE US, THE ASSESSEE APART FROM CHALLENGING THE ADDITIONS UPHELD BY CIT(A), BY WAY OF ADDITIONAL GROUND HAS ALSO CHALLENGED THE VALIDITY OF THE ASSESSMENT FRAMED U/S 153C R.W.S. 153A BY SUBMITTING THAT SINCE THE A.O. HAD RECEIVED INFORMATION FROM THE A.O. OF THE SEARCHED PERSON ON 15.05.2007, THE IMPUGNED ASSESSMENT ORDER IT(SS)A NO .538/AHD/2011 (SHRI MANILAL A. KOTHARI VS. DCIT) A.Y. 1999-2000 4 DATED 21.12.2008 IS BARRED BY LIMITATION. BEFORE US , APART FROM THE AFORESAID CONTENTION RAISED IN THE GROUND, NO MATERIAL HAS BE EN PLACED ON RECORD BY THE ASSESSEE TO SUPPORT HIS AFORESAID CONTENTIONS. FUR THER, WE ALSO FIND THAT THE GROUND OF VALIDITY OF IMPUGNED ASSESSMENT WAS NOT RAISED B Y THE ASSESSEE BEFORE LD.CIT(A). IN SUCH A SITUATION, WE ARE OF THE VIEW , THAT IN THE INTEREST OF JUSTICE THE ISSUE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROU ND NEEDS TO BE EXAMINED AT THE END OF LD.CIT(A). WE THEREFORE, WITHOUT DECIDING O N THE OTHER ISSUES RAISED ON MERITS, RESTORE THE APPEAL TO THE FILE OF LD. CIT( A) TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. NEEDLESS TO STATE, THAT LD. C IT(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. THUS, THIS GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 06 -04- 2016. SD/- SD/- (S. S. GODARA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED. 06/04/2016 TRUE COPY S K SINHA 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,AHMEDABAD