GUJ, TEA PROCESORAS&PALKERS LTD, Ahmedabad V. THE DY,CIT CENT CIR ,2(1), Ahmedabad

MA 12/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8471 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 29-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P SHAH A R SHRI RAHUL KUMAR
• Keywords: Unexplained investment; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTAN T MEMBER M.A. NO.12/AHD/2010(BY ASSESSEE) (ARISING OUT OF I.T.(SS) NO.101/AHD/2002) (BLOC PERIOD 01.04.1988 TO 29.07.1998) GUJARAT TEA PROCESSORS & PACKERS LTD., KRISHNA ESTATE, OPP. ANUPAM CINEMA KHOKHRA, AHMEDABAD APPELLANT VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(1) AHMEDABAD RESPONDENT APPELLANT BY : SRI J.P. SHAH, A.R. RESPONDENT BY : SHRI RAHUL KUMAR, SR. D.R. ---------------- DATE OF HEARING : 22.06.2012 DATE OF PRONOUNCEMENT : 06.07.2012 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER THROUGH THIS M.A. THE ASSESSEE PRAYS FOR RECALLING OUR ORDER DATED 03.07.2009 IN RESPECT OF GROUND NO.2 OF ADDIT ION OF RS.13.03,700/- CONFIRMED BY CIT(A) IN RESPECT OF ADDITION MADE FOR UNACCOUNTED INVESTMENT IN STOCK OF 13.037 KGS FOR DISCREPANCIES IN STOCK. 2. THE ASSESSEE HAD TAKEN FOLLOWING GROUND AS GROU ND NO.2:- THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.13,03,700/- AS ALLEGED UNACCOUNTED INVESTMENT IN STOCK OF 13,037/- KGS INSPITE OF CONT RARY CONVINCING EVIDENCE AND EXPLANATION. M.A. NO.12/AHD/2010(BY ASSESSEE) (ARISING OUT OF I.T.(SS) NO.101/AHD/2002) (BLOC PERIOD 01.04.1988 TO 29.07.1998) 2 3. THIS GROUND WAS ADJUDICATED BY THE TRIBUNAL AT PARA 35 OF THE ORDER DISMISSING THE GROUND OF THE ASSESSEE BY HOLD ING AS UNDER:- WE FIND THAT THIS ISSUE OF UNACCOUNTED INVESTMENT IN STOCK HAS BEEN CONSIDERED IN IT(SS)A NO.107/AHD/200 2 IN PARA 26 OF THIS ORDER, WHEREIN THE FINDINGS OF CIT(A) AR E CONFIRMED. ACCORDINGLY, TAKING A CONSISTENT VIEW, WE UPHELD TH IS ADDITION AND THIS ISSUE OF THE ASSESSEES APPEAL IS DISMISSE D. 4. THE CONTENTION OF THE ASSESSEE, BEFORE US, IS T HAT AT THE TIME OF HEARING OF THE APPEAL IT WAS SUBMITTED BY THE LD. C OUNSEL OF THE ASSESSEE THAT ACTUAL RECONCILIATION OF STOCK DISCREPANCIES W AS FILED BEFORE THE LOWER AUTHORITIES, HOWEVER, PROPER APPRECIATION HAS NOT B EEN DONE AND IT WAS SUBMITTED THAT IN ALL FAIRNESS THIS GROUND OF APPEA L SHOULD BE SENT BACK TO THE A.O. FOR VERIFICATION. IT WAS FURTHER SUBMITTE D THAT IF THE HONBLE MEMBERS ARE INCLINED TO SEND BACK THE MATTER TO THE A.O. THEN IN THAT EVENT DETAIL ARGUMENTS MAY NOT BE NECESSARY. THE R ECONCILIATION FOR DISCREPANCIES OF STOCK WAS FILED BEFORE HONBLE ITA T AT PAGE NO.40 TO 57 IN THE COMPILATION FILED AT THAT TIME. HONBLE BENCH ACCEPTED THE REQUEST FOR SETTING ASIDE TO LD. A.O. AND THEREFORE, NO DETAILE D ARGUMENTS WERE MADE, HOWEVER, WHEN THE ORDER WAS RECEIVED BY THE ASSESSE E, IT WAS FOUND THAT GROUND HAS BEEN REJECTED INSTEAD OF BEING SENT BACK TO THE A.O. IN VIEW OF THIS, IT WAS SUBMITTED THAT A MISTAKE APPARENT ON R ECORD IN CONFIRMING THE ORDER OF LD. CIT(A) INSTEAD OF SETTING ASIDE THIS G ROUND OF APPEAL TO THE A.O. HAS CREPT IN, IN THE ORDER OF THE TRIBUNAL AND THE SAME MAY KINDLY BE RECTIFIED IN THE INTEREST OF NATURAL JUSTICE BY REC ALLING THE SAID ORDER TO THE EXTENT OF ADJUDICATING THE GROUND NO.2 AFRESH. LD. D.R. STRONGLY OPPOSED THIS SUBMISSION OF THE ASSESSEES COUNSEL AND PLACE D RELIANCE ON THE M.A. NO.12/AHD/2010(BY ASSESSEE) (ARISING OUT OF I.T.(SS) NO.101/AHD/2002) (BLOC PERIOD 01.04.1988 TO 29.07.1998) 3 DECISION OF THE TRIBUNAL IN THE CASE OF CIT VS. JIN ENDRA SMELTING & ROLLING MILLS WHEREIN IT WAS HELD THAT THE DECLARATION OF I NTENTION OF WHAT THE JUDGMENT WOULD BE CANNOT BE SAID TO BE AN ORDER PAS SED AS PRESCRIBED IN SECTION 254(1) AND THEREFORE, THERE WAS NO MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE TRIBUNAL REJECTING THE G ROUND NO.2 OF THE ASSESSEE. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE LOG BOOK OF THE HONBLE JUDICIAL MEMBER, WHO HAS AUTHORED THE ORDER , WE FIND FORCE IN THE CONTENTION OF LD. COUNSEL OF THE ASSESSEE THAT THE BENCH INTENDED TO SEND THE MATTER BACK TO THE FILE OF THE A.O. AND THEREFO RE, DETAILED ARGUMENTS COULD NOT BE ADVANCED ON BEHALF OF THE ASSESSEE. S INCE THE ASSESSEE WAS NOT HEARD FULLY, WE ARE INCLINED TO RECALL THE ORDE R DATED 03.07.2009 TO THE EXTENT OF GROUND NO.2 IN RESPECT OF ADDITION OF RS. 13,03,700/- AND FOR FRESH ADJUDICATION OF GROUND NO.2 THE MATTER WOULD BE RE- FIXED FOR HEARING. 5. IN THE RESULT, THE M.A. FILED BY THE ASSESSEE I S ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 06/07/2012 SD/- SD/- (A.MOHAN ALANKAMONY) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY N.K. CHAUDHARY, SR. P.S. DATED : 06.07.2012 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT M.A. NO.12/AHD/2010(BY ASSESSEE) (ARISING OUT OF I.T.(SS) NO.101/AHD/2002) (BLOC PERIOD 01.04.1988 TO 29.07.1998) 4 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# * '# *