ROMAN M. PATEL, MUMBAI V. DCIT CEN CIR 35, MUMBAI

ITSSA 54/MUM/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1396 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 25-03-2015
• Assessment Year: misc
• Appeal Filed On: 11-10-2011
• Court: TRIBUNAL
• Department Lawyers: A K SRIVASTAVA
• Assessee Lawyers: Y P TRIVEDI
• Keywords: Opportunity of being heard; Principle of natural justice; Assessment record
• Section: 132

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER I.T (SS) .A. NO. 54/M/2011 (BLOCK PERIOD 1.4.1996 TO 11.4.2002 ) SHRI ROMAN M. PATEL, 40, BHANSHALI BUILDING, WALKESHWAR, BANGANGA ROAD, MUMBAI 400 006. / VS. DCIT, CC - 35, MUMBAI. ./ PAN : AETPP4620G ( / APPELLANT) .. ( / RESPONDENT ) I.T (SS) .A. NO. 62/M/2011 (BLOCK PERIOD 1.4.1996 TO 11.4.2002 ) ACIT, CC - 35, MUMBAI. / VS. SHRI ROMAN M. PATEL, 40, BHANSHALI BUILDING, WALKESHWAR, BANGANGA ROAD, MUMBAI 400 006. ./ PAN : AETPP4620G ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI Y.P. TRIVEDI / RESPONDENT BY : SHRI A.K. SRIVASTAVA, CIT - DR / DATE OF HEARING : 04.11.2015 / DATE OF PRONOUNCEMENT : 16 .12.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION AND THEY ARE CROSS APPEALS INVOLVING THE BLOCK PERIOD FROM 1.4.1996 TO 11.4.2002. IT(SS) NO.54/M/2011 IS FILED BY THE ASSESSEE AND IT(SS) NO.62/M/2011 IS FILED BY THE REVENUE. SINCE, THE ISSUES RAISED IN BOTH THE APPEALS ARE INTER - CONNECTED, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD TOGETHER AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAS OF THIS ORDER. 2. BOTH THE APPEALS ARE FILED AGAINST THE FINDING OF THE CIT (A) - 41, MUMBAI DATED 12.9.2011. WHILE THE REVENUE IS AGGRIEVED AGAINST THE RELIEF OF RS. 2 79,15,881/ - , THE DIFFERENCE BETWEEN THE BALANCE SHEETS SEIZED DURING THE SEARCH, THE ASSESSEE IS AGGRIEVED A GAINST THE CONFIRMING OF CERTAIN ADDITIONS BY THE CIT (A). OTHERWISE, ASSESSMENT MADE U/S 158BC OF THE ACT ON 30.12.2010 DETERMINING THE ASSESSED INCOME AT RS. 1,04,67,310/ - . THIS IS THE SECOND ROUND OF THE PROCEEDINGS BEFORE THE TRIBUNAL. IN THE FIRST ROUND, THE TRIB UNAL SET ASIDE THE ASSESSMENT ORDER TO THE FILE OF THE CIT (A) AND DIRECTED TO DE NOVO ASSESSMENT IN THIS CASE. WITH THE BACKGROUND OF THESE FACTS, LD CIT - DR FOR THE REVENUE ARGUED THE REVENUES APPEAL AND TO START WITH , H E READ OUT THE GROUND S RAISED THEREIN. BEFORE US, LD DR SUBMITTED THAT THE ASSESSMENT WAS MADE U/S 158BC OF THE ACT AND THE BOOKS OF ACCOUNTS OF THE ASSESSEE WERE NEVER PRODUCED BEFORE THE AO. CRITICIZING THE COMMENTS OF THE CIT (A), SPECIALLY WITH REFERENCE TO THE BOOKS OF ACCOUNTS AND THE RECONCILIATION OF TWO SETS OF BALANCE SHEETS OF THE ASSESSEE, LD DR MENTIONED THAT THE SAID RECONCILIATIONS ARE NOT PART OF THE ASSESSMENT RECORDS. IN THIS REGARD, HE PRODUCED THE ASSESSMENT RECORDS FOR EXAMINATION. THESE RECONCILIATION S , PROBABLY 4 PAGES, PLACED BEFORE THE CIT (A) W H O ACCEPTED T H E S A M E WITHOUT REMANDING THE SAME TO THE FILE OF THE AO. 3. ON THE OTHER HAND, LD COUNSEL FOR THE ASSESSEE PRODUCED THE COPIES OF THE RECONCILIATIONS ALTHOUGH HE COULD NOT CONCLUSIVE LY ESTABLISH THAT THE SAME WERE FACTUALLY F I L E D B E F O R E THE AO DURING THE SET ASIDE PROCEEDINGS. EVENTUALLY, BOTH THE PARTIES OF THE LITIGATION AGREED TO THE PROPOSITION THAT THE ISSUE RAISED BY THE REVENUE IN THE APPEAL SHOULD BE REMANDED FOR FRESH ASSESS MENT PROCE EDINGS IN ACCORDANCE WITH THE SET PRINCIPLES OF NATURAL JUSTICE QUA THE EXAMINATION OF THE BOOKS OF ACCOUNTS OF THE RECONCILIATION OF THE TWO TYPES OF BALANCES SHEETS FOUND AND SEIZED DURING THE SEARCH ACTION U/S 132 OF THE ACT. IT IS AN UNDISPU TED FACT THAT SEARCH TEAM DISCOVERED TWO SETS OF BALANCES SHEETS WHEREAS ONE SET WAS DULY SIGNED AND STAMPED BY SHRI C.N. SHAH & ASSOCIATES AND OTHER SET IS SIGNED AND STAMPED BY SHRI P.P. TRIVEDI (MEMBERSHIP NO.37646). IT IS ALSO AN UNDISPUTED FACT THAT THE ASSESSMENT ORDER DOES NOT REFER TO ANY RECONCILIATION WHATSOEVER. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 4. REGARDING THE GROUNDS RAISED BY THE ASSESSEE IN THEIR APPEAL IT(SS) NO.54/M/2011, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE SHOULD BE 3 REMANDED FOR FRESH EXAMINATION BY THE AO IN THE SET ASIDE PROCEEDINGS. IN THIS REGARD, HE MENTIONED THAT CERTAIN FACTS WHICH ARE NECESSARY FOR ADJUDICATION WERE NOT BROUGHT ON TO THE RECORDS IN THE ORDERS OF TH E AO AND THE CIT (A). 5. AFTER HEARING BOTH THE PARTIES, WE FIND NEED OF REMANDING THE MATTER TO THE FILE OF THE AO TO ADJUDICATE THE MATTER AFRESH. WE ORDER ACCORDINGLY. AO IS DIRECTED TO PASS A SPEAKING ORDER ON EACH OF THE ISSUES AFTER GRANTING A REAS ONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH THE SET PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE REVENUE AS WELL AS THE APPEAL OF THE A S S E S S E E ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 6 T H DECEMBER, 2015. S D / - S D / - ( RAM LAL NEGI ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 1 6 /12/2015 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI