Shri Jitendra H.Modi, Surat V. The Dy.CIT.,Cent.Circle-1, Surat

ITSSA 608/AHD/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9084 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 17-04-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 18-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SANKAR SRDR
• Keywords: Condonation of delay
• Section: 143(3); 153A; 68

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) IT(SS)A NO.608/AHD/2012 [ASSTT.YEAR : 2004-2005] JITENDRA H. MODI H-7, VATSALYA, NR.SUDAMA HOTEL TADWADI, RANDER ROAD SURAT 395 009. PAN : AAYPM 0990 K /VS. DCIT, CENT.CIR.1 SURAT. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : MS.ARTI SHAH + 2 3 )/ REVENUE BY : SHRI T. SANKAR, SR.DR 5 2 &(*/ DATE OF HEARING : 17 TH APRIL, 2013 678 2 &(*/ DATE OF PRONOUNCEMENT : 30-04-2013 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT : THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 2004-2005, IS DIREC TED AGAINST THE ORDER OF THE CIT(A). 2. THERE IS A DELAY OF 142 DAYS IN FILING THE PRESE NT APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED APPLICATION F OR CONDONATION OF DELAY ALONG WITH THE AFFIDAVIT STATING ON OATH THE REASONS FOR THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. THE LEAR NED COUNSEL FOR THE IT(SS)A NO.608/AHD/2012 -2- ASSESSEE HAS SUBMITTED THAT IT WAS ON THE ADVICE OF THE ASSESSEES CHARTERED ACCOUNTANT, SHRI MAYANK DAVE THAT THE ASS ESSEE DID NOT PREFER ANY APPEAL BEFORE THE TRIBUNAL, AS HE WAS AD VISED THAT THE AO WILL RECTIFY THE MISTAKE HIMSELF. HOWEVER, ON GETT ING PROPER ADVICE FROM SENIOR COUNSEL, THE PRESENT APPEAL WAS FILED B EFORE THE TRIBUNAL. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE L EARNED COUNSEL OF THE ASSESSEE. 3. WE HAVE CONSIDERED SUBMISSIONS OF BOTH THE SIDES ON THE ISSUE OF CONDONATION OF DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THER E WAS SUFFICIENT CAUSE FOR FILING THE APPEAL LATE BY 142 DAYS BEFORE THE T RIBUNAL, AND ACCORDINGLY, THE DELAY IN FILING THE APPEAL IS COND ONED. 4. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE BY CONFIRMING THE ADDITION U/S.68 OF THE RS.8,00,00 0/- MADE BY THE AO, THOUGH THE SAME ADDITION IS MADE IN THE ORI GINAL ASSESSMENT UNDER SECTION 143(3), WHICH HAS NOT ABAT ED U/S.153A. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS OF T HE CASE BY CONFIRMING THE DISALLOWANCE OF ALSO OF RS.1,96,4 25/- MADE BY THE AO, THOUGH THE SAME ADDITION IS MADE IN THE ORIGINAL ASSESSMENT UNDER SECTION 143(3), WHICH HAS NOT ABAT ED UNDER SECTION 153A. 5. THE LEARNED COUNSEL OR THE ASSESSEE SUBMITTED TH AT THE DISPUTED AMOUNT OF RS.8,00,000/- AND RS.1,96,425/- HAS ALREA DY BEEN ASSESSED IN THE ORIGINAL ASSESSMENT UNDER SECTION 143(3) OF THE ACT BY THE DEPARTMENT, AND THE APPEAL AGAINST THE SAID ADDITIO N WAS DISMISSED BY THE CIT(A) AND THE TRIBUNAL. HOWEVER, IN THE PRESE NT ASSESSMENT IT(SS)A NO.608/AHD/2012 -3- FRAMED BY THE AO UNDER SECTION 143(3) R.W.S. 153A O F THE ACT, THE SAME ADDITIONS HAVE BEEN MADE, RESULTING IN DOUBLE TAXATION OF THE SAME AMOUNT, WHICH IS NOT PERMISSIBLE UNDER THE LAW . SHE SUBMITTED THAT IT WAS A BONA FIDE MISTAKE OF LAW THAT THE ASSESSEE DID NOT PRESS THIS GROUND BEFORE THE CIT(A) CHALLENGING THE ADDIT ION OF RS.8,00,000/- UNDER SECTION 68 AND DISALLOWANCE OF LOSS OF RS.1,96,425/-. SHE SUBMITTED THAT THE SAME AMOUNT COULD NOT BE DOUBLY TAXED BY THE DEPARTMENT. THE LEARNED DR HAS RELIED ON THE ORDER OF THE AO. HE SUBMITTED THAT THE ASSESSEE HA S NOT PRESSED THIS ISSUE BEFORE THE CIT(A), AND THEREFORE NO RELIEF SH OULD BE GRANTED TO THE ASSESSEE. 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ASSESSEE H AS FILED A COPY OF THE ORIGINAL ASSESSMENT ORDER DATED 28.11.2006 FOR THE RELEVANT ASSESSMENT YEAR 2004-05 IN THE CASE OF THE ASSESSEE , FRAMED UNDER SECTION 143(3) OF THE ACT WHEREIN THE DISPUTED AMOU NT OF RS.8 LAKHS AND RS.1,96,425/- HAS ALREADY BEEN ADDED AS INCOME IN THE HANDS OF THE ASSESSEE. THE APPEAL OF THE ASSESSEE AGAINST T HIS ASSESSMENT ORDER DATED 28.11.2006 WAS DISMISSED BY THE CIT(A) AS WEL L AS BY THE TRIBUNAL. THE AO IN THE ASSESSMENT FRAMED UNDER SE CTION 143(3) R.W.S. 153A HAS AGAIN ADDED A SUM OF RS.8,00,000/- UNDER SECTION 68 AND HAS MADE A DISALLOWANCE OF RS.1,96,425/-. THIS ACTION OF THE AO TO TAX THE SAME AMOUNT ONCE AGAIN RESULTING IN DOUB LE TAXATION, IS NOT PERMISSIBLE IN LAW. THIS A CLEAR CASE OF MISTAKE O F LAW ON THE PART OF THE ASSESSEE IN NOT PRESSING THE DISPUTED AMOUNT OF RS.8,00,000/- AND RS.1,96,425/- BEFORE THE CIT(A). IN THESE FACTS OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT IT SHALL BE IN THE INTERES T OF JUSTICE TO RESTORE IT(SS)A NO.608/AHD/2012 -4- THIS ISSUE RAISED IN THIS APPEAL OF THE ASSESSEE TO THE FILE OF THE CIT(A) WITH DIRECTION TO DECIDE THE SAME ON MERITS AFTER A LLOWING REASONABLE OPPORTUNITY OF HEARING TO THE PARTIES. THE CIT(A) IS DIRECTED TO VERIFY THE FACTS, AND IN CASE THE DISPUTED AMOUNT OF RS.8, 00,000/- AND RS.1,96,425/- HAS ALREADY BEEN TAXED IN THE ORIGINA L ASSESSMENT, IN THE ASSESSMENT FRAMED FOR THE RELEVANT ASSESSMENT YEAR, IN THE CASE OF THE ASSESSEE, THEN NEED NOT TO MAKE THE ADDITION AGAIN AND TO DELETE THE DISPUTED ADDITIONS ACCORDINGLY. WE DIRECT ACCORDI NGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&' %&' %&' %&'( (( ( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD 1. DATE OF DICTATION : 17-04-2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER. : 18-04-2013 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S : 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT. : 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER : 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. : 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK. : 30-04-2013 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. : 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER. : 10. DATE OF DESPATCH OF THE ORDER :