Shri Chandrakant Prabhulal Chokshi, Ahmedabad V. The ACIT.,B.K.Circle, Palanpur

ITSSA 689/AHD/2010

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0046 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 10-02-2014
• Assessment Year: misc
• Appeal Filed On: 17-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P KRISHNA KUMAR

Judgement Text

-1- , , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , ! ! ! !, , , , '# $% '# $% '# $% '# $% , , , , %& ' %& ' %& ' %& ' % ! ( % ! ( % ! ( % ! ( BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) IT(SS)A NO.689/AHD/2010 [BLOCK PERIOD FROM 1.4.1989 TO 23.3.2000] CHANDRAKANT PRABHULAL CHOKSHI NR. HANUMAN TEMPLE, THARAD BANASKANTHA PAN :ADCPC 6035 G /VS. ACIT, B.K. CIRCLE PALANPUR. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,- ,- ,- ,-*+ *+*+ *+ / RESPONDENT) .$ / 0 %/ ASSESSEE BY : SHRI UMAIDSINGH BHATI ' / 0 %/ REVENUE BY : SHRI T.P. KRISHNAKUMAR, CIT-DR 2 / $3&/ DATE OF HEARING : 10 TH FEBRUARY, 2014. 456 / $3&/ DATE OF PRONOUNCEMENT : 07-03-2014 %7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT : THIS APPEAL OF THE ASSESSEE FOR THE BLOCK PERIOD 1.4.1989 TO 28.3.2000 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-XV, AHMEDABAD DATED 14.7.2010. IT(SS)A NO.689/AHD/2010 -2- 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE APPEAL OF THE APPELLANT WAS NOT MAINTAINABLE BY VIR TUE OF PROVISIONS OF SECTION 249(4) OF THE IT ACT, 1961. 2. THE LD.CIT(A) FURTHER ERRED IN LAW AND ON FACTS IN NOT FOLLOWING THE COMBINED ORDER OF THE ITAT IN IT(SS)A.NO.(S) 29 4 & 295/AHD/2003 AND 164 & 165/AHD/2005 DATED 26 TH MAY, 2006 PASSED IN THE CASE OF THE APPELLANT. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ISSUE BEFORE THE CIT(A) WERE NOT DECIDED BY HIM ON MERITS, AND T HE CIT(A) HAS HELD THAT THE APPEAL BEFORE HIM WAS NOT MAINTAINABLE AS THE T AX REQUIRED UNDER SECTION 249(4) OF THE ACT WAS NOT DEPOSITED BY THE ASSESSEE . IN THE OPERATIVE PART OF THE ORDER OF THE CIT(A), THE CIT(A) HAS ADMITTED TH AT THE PAYMENT OF RS.2,68,713/- WAS BY DRAFT AND CASH OF RS.45,000/- WERE ALSO PAID, BUT BY MISTAKE ALLOWED THE CREDIT OF SEIZED ASSETS OUT OF THE SELF-ASSESSMENT LIABILITY OF THE ASSESSEE AND DID NOT ALLOW THE AMOUNT OF DRA FT OF RS.2,68,713/- AND CASH OF RS.45,000/- WHILE DECIDING THE ISSUE OF MAI NTAINABILITY OF APPEAL BEFORE HIM. THE LEARNED CIT-DR HAS OPPOSED THE SUB MISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE RELIED ON THE ORDERS OF THE CIT(A). HE SUBMITTED THAT THE PROCEDURAL AMENDMENT IN LAW APPL IES TO THE CASE OF THE ASSESSEE ALSO, AND THEREFORE, THE CREDIT OF SEIZED ASSETS COULD NOT BE ALLOWED WHILE DECIDING THE MAINTAINABILITY OF APPEAL OF THE ASSESSEE BEFORE THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS CAREFULLY A ND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ARGUMENTS OF THE LD. CIT- DR ARE MISPLACED, AS THE CREDIT OF SEIZED ASSETS WH ILE DECIDING THE MAINTAINABILITY OF APPEAL IS NOT AN ISSUE BEFORE TH E TRIBUNAL. THE CIT(A) IT(SS)A NO.689/AHD/2010 -3- HAS ALREADY ALLOWED THE CREDIT OF VALUE OF SEIZED A SSETS, AGAINST WHICH THE REVENUE HAS NOT PREFERRED ANY APPEAL BEFORE THE TRI BUNAL. IN THE OPERATIVE PART OF THE APPELLATE ORDER PASSED BY THE CIT(A), H E HAS ADMITTED THE PAYMENT OF DRAFT AMOUNTING TO RS.2,68,713/- AND CAS H OF RS.45,000/-. WE FIND THAT IF THESE TWO AMOUNTS ARE DEDUCTED OUT OF THE SELF-ASSESSMENT TAX LIABILITY OF THE ASSESSEE AND THE VALUE OF THE SEIZ ED ASSETS, THERE REMAINS NO TAX PAYABLE AS SELF-ASSESSMENT BY THE ASSESSEE. IN THESE FACTS, WE ALLOW THE GROUND OF APPEAL OF THE ASSESSEE AND RESTORE THIS I SSUE TO THE FILE OF THE CIT(A) WITH DIRECTION TO TREAT THE APPEAL BEFORE HI M AS MAINTAINABLE AND VALIDLY INSTITUTED BY THE ASSESSEE AND DISPOSE OF T HE APPEAL BEFORE HIM ON MERITS AFTER ALLOWING REASONABLE OPPORTUNITY OF HEA RING TO BOTH THE PARTIES. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( $% $% $% $% /T.R. MEENA) %& ' /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