Smt. Pareshaben Kamleshbhai Modi, Ahmedabad V. The ACIT.,C.C.2(4), Ahmedabad

ITSSA 650/AHD/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 3090 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-08-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 02-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Keywords: Principle of natural justice
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARA T, JUDICIAL MEMBER PARESHABEN KAMLESHBHAI MODI, AHMEDABAD (APPELLANT) PAN NO. ABCPM3725B VS. A.C.I.T, C.C.-2(4) (RESPONDENT) REVENUE BY : SHRI D.K. SINGH, SR. D.R. ASSESSEE BY : NONE DATE OF HEARING : 08-08-2012 DATE OF PRONOUNCEMENT : 05 -10-2012 / ORDER PER : KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-III AHMEDABAD DATED 23-09-2011. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS I N REJECTING THE ADDITIONAL GROUND NO. 1A CONTESTING THE ASSUMPT ION OF JURISDICTION U/S. 153-C OF THE ACT. 2. THE LEARNED CIT(A) HAS FURTHER ERRED IN LAW AND ON FACTS IN REJECTING THE ADDITIONAL GROUND NO. 1B CONTESTING T HE ASSUMPTION OF JURISDICTION TO REVIEW WITHOUT ANY VALID REASONS TH E ORIGINAL ASSESSMENT THAT HAD BECOME FINAL. I.T.(S.S.)A. NO 650/AHD/2011 A.Y.:-2007-08 ITA NO. 650/AHD/2011 A.Y. 2007-08 PAGE N O. PARESHABEN KAMLESHBHAI MODI VS. ACIT 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED ASSESSING OFFICER OUGHT NOT HAVE PROCEEDED U/S. 153-C OF THE ACT TO MAKE THE ASSESSMENT, AND OUGHT NOT HAVE REVI EWED THE ASSESSMENT PREVIOUSLY MADE WITHOUT ANY VALID REASON S. 4. IT IS THEREFORE PRAYED THAT THE ORDERS OF THE LO WER AUTHORITIES MAY BE CANCELLED. 2. BRIEFLY STATED FACTS ARE THAT A SEARCH ACTION U/ S 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CARRIED OUT AT THE HIMALAYAN GROUP OF CASES ON 22-04-2008. THE ASSESS EE BELONGS TO HIMALAYAN GROUP AND DURING THE COURSE OF SEARCH PRO CEEDINGS DOCUMENTS BELONGING TO ASSESSEE FOUND AND SEIZED. THE ASSESS MENT U/S 153 C READ WITH 143(3) OF THE ACT WAS FINALIZED VIDE ORDER DATED 06 -05-2010 THEREBY ADDITION OF RS. 7,04,614/- WAS MADE BY THE ASSESSIN G OFFICER. THE ASSESSEE FEELING AGGRIEVED BY THE ORDER PREFERRED AN APPEAL BEFORE THE LD. CIT(A). DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE RAIS ED FOLLOWING ADDITIONAL GROUND OF APPEAL:- 1A. THE LEARNED AO HAS FURTHER ERRED IN LAW AND ON FACTS IN ASSUMING JURISDICTION U/S 153 C OF THE ACT WITHOUT SATISFYING THE CONDITION PRECEDENT OF BRINGING ON RECORD MATERIAL BELONGING TO THE APPELLANT WARRANTING SUCH ASSUMPTION OF JURISDICTIO N. THE PROCEEDINGS U/S. 153C ARE THEREFORE VOID AB INITIO AND LIABLE TO BE QUASHED. THE ASSESSMENT MADE IN PURSUANCE OF INVAL ID PROCEEDINGS IS ALSO LIABLE TO BE ANNULLED. IT MAY BE HELD SO NOW. 1B. THE LEARNED AO HAS ALSO ERRED IN ASSUMING JURIS DICTION TO REVIEW THE ASSESSMENT THAT HAD BECOME FINAL, WITHOU T ANY VALID REASONS AND THE ASSESSMENT SO MADE BEING VOID AB IN ITIO, IS LIABLE TO BE ANNULLED. 1C. IT IS THEREFORE PRAYED THAT THE PROCEEDINGS U/S . 153C MAY BE QUASHED AND THE ASSESSMENT MAY BE ANNULLED. ITA NO. 650/AHD/2011 A.Y. 2007-08 PAGE N O. PARESHABEN KAMLESHBHAI MODI VS. ACIT 3 3. LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE, WITHOUT ADJUDICATING THE ADDITIONAL GROUND. 4. THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS THAT THE ADDITIONAL GROUNDS AS RAISED BY THE ASSESSEE DURING THE APPELL ATE PROCEEDINGS BEFORE THE LD. CIT(A) WERE NOT DISPOSED OF IN ACCORDANCE WITH LAW. ON THE LAST DATE OF HEARING ON 05-06-2012, THE HEARING OF APPEAL WAS AD JOURNED AT THE REQUEST OF LD. A.R. FOR THE ASSESSEE. NO-ONE APPEARED ON BEHA LF OF THE ASSESSEE DESPITE THE FACT THE DATE OF HEARING WAS WELL WITHIN THE KN OWLEDGE OF THE LD. A.R OF THE ASSESSEE. HOWEVER, A PAPER BOOK IS ON RECORD. T HERE IS NO REQUEST FOR ADJOURNMENT OF THE APPEAL. IN SUCH CIRCUMSTANCES, THE APPEAL WAS TAKEN UP FOR HEARING IN THE ABSENCE OF THE ASSESSEE. LD. SR . D.R. SUPPORTED THE ORDER OF THE LD. CIT(A). HE SUBMITTED THAT THE ASSESSEE FAILED TO FURNISH THE REQUISITE DETAILS IN SUPPORT OF THE ADDITIONAL GROU NDS. THEREFORE, LD. CIT(A) WAS JUSTIFIED IN DISMISSING THE APPEAL. 5. WE HAVE HEARD LD. SR. D.R. WE FIND THAT THE LD. CIT(A) ORDER IS CRYPTIC AND HAS NOT DECIDED THE ADDITIONAL GROUND A S RAISED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS. LD. CIT(A) HAS HELD AS UNDER:- ON MERIT SHRI K.C. THAKAR, ADVOCATE STATED THAT HE DOES NOT WANT TO MAKE ANY SUBMISSION NOR DID HE MAKE ANY ARG UMENTS AS TO WHY THE AO WAS WRONG IN MAKING THE ADDITIONS. HE S AID THAT THE ADDITIONAL GROUNDS OF APPEAL RAISED BY HIM MAY BE D EALT IN THE APPELLATE ORDER. HE WAS ASKED TO CLARIFY WHETHER A NY JEWELLERY, CASH, OTHER VALUABLES OR DOCUMENTS BELONGING TO THE APPEL LANT WERE FOUND AND SEIZED IN THE CASE OF THEIR HUSBANDS OR NOT. T O THIS HE STATED THERE HAS BEEN SEIZURE OF SOME JEWELLERY IN THE CASE OF T HEIR HUSBANDS WHICH HAS BEEN CLAIMED TO BE BELONGING TO THEIR WIVES. T O RAISE AN ADDITIONAL GROUND, THE APPELLANT IS EXPECTED TO CER TIFY THAT THE FACTS MENTIONED IN THE ADDITIONAL GROUND ARE CORRECT. TH E APPELLANT HAS TO SUBSTANTIATE THE BASIS OF THE ADDITIONAL GROUND RAI SED BY THEM. IF THE APPELLANT HAS TO SUBSTANTIATE THE BASIS OF THE ADDI TIONAL GROUND RAISED BY THEM. IF THE APPELLANT KNOWINGLY RAISES AN ADDI TIONAL GROUND, THE ITA NO. 650/AHD/2011 A.Y. 2007-08 PAGE N O. PARESHABEN KAMLESHBHAI MODI VS. ACIT 4 FACTS OF WHICH ARE DELIBERATELY MENTIONED AS INCORR ECT, THEN IN MY OPINION NOT ONLY SUCH ADDITIONAL GROUND ARE LIABLE TO BE REJECTED AT FACE BUT ALSO THE APPELLANTS SHOULD BE PENALIZED FO R RAISING SUCH ADDITIONAL GROUNDS. IN THIS CASE, SINCE THE APPELL ANTS HAVE NOT BEEN ABLE TO SUBSTANTIATE THE FACTUAL POSITION MENTIONED IN THE ADDITIONAL GROUND SUCH AS COPY OF THE PANCHNAMA PREPARED AT TH E TIME OF SEARCH OF THEIR HUSBANDS TO SHOW THAT NOT A SINGLE ITEM OF JEWELLERY, VALUABLES OR DOCUMENTS BELONGING TO THEM HAVE BEEN SEIZED, I HAVE NO HESITATION IN REJECTING SUCH ADDITIONAL GROUNDS. 5. SINCE THE AR HAS NOT ARGUED, NOR FILED ANY SUBMI SSIONS REGARDING THE MERIT OF ADDITIONS, THE ADDITIONS MAD E BY THE AO ARE HEREBY CONFIRMED. THE APPEALS OF BOTH THE APPELLAN TS ARE DISMISSED. 5. FROM THE ABOVE FINDINGS OF LD. CIT(A), IT IS EVI DENT THAT HE HAS NOT DISPOSED OF THE ADDITIONAL GROUNDS AS RAISED BY THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE THIS MATTER IS REMITTED BAC K TO THE FILE OF LD. CIT(A) TO ADMIT AND DECIDE THE ADDITIONAL GROUNDS AS RAISED BY THE ASSESSEE IN ACCORDANCE WITH LAW BY WAY OF A SPEAKING ORDER. NE EDLESS TO SAY THAT LD. CIT(A) WOULD GIVE SUFFICIENT OPPORTUNITY TO CONCERN ED PARITIES IN THE INTEREST OF NATURAL JUSTICE. 6. IN THIS VIEW OF THE MATTER, THE APPEAL OF THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K. GARODIA) (KUL BHARAT) ACCOUNTANT MEMBER JU DICIAL MEMBER AHMEDABAD : DATED 05 /10/2012 AK ITA NO. 650/AHD/2011 A.Y. 2007-08 PAGE N O. PARESHABEN KAMLESHBHAI MODI VS. ACIT 5 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A)-III, BARODA 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# *