Kiran Utamchand Shah, Gandhinagar V. The ACIT.,Gandhinagar Circle, Gandhinagar

MA 133/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9588 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 13-07-2012
• Assessment Year: misc
• Appeal Filed On: 24-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T SANKAR
• Assessee Lawyers: K C THAKKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, JM AND SHRI A. MOHA N ALANKAMONY, AM) M.A. NO.133 AND 135/AHD/2011 (IN IT (SS) A NO.04/AHD/2008 AND C. O. NO.51/AHD/20 08: BLOCK PERIOD ENDING 04-09-2002) SHRI KIRAN UTTAMCHAND SHAH, PROP. ALAP SECURITIES, PLOT NO.165, 1 ST FLOOR, SECTOR -21, GANDHINAGAR P. A. NO. AHSPS 6623- C VS THE A. C. I. T., GANDHINAGAR CIRCLE,. BLOCK NO.14, 4 TH FLOOR, UDYOG BHAVAN, SECTOR -11, GANDHINAGAR (APPLICANT) (RESPONDENT) APPLICANT BY SHRI K. C. THAKKAR, AR RESPONDENT BY SHRI T. SANKAR, SR. DR DATE OF HEARING: 07-12-2012 DATE OF PRONOUNCEMENT: 14-12-2012 O R D E R PER A. MOHAN ALANKAMONY: THESE TWO MISC. APPLICATIONS ARE FILED BY THE ASSESSEE REQUESTING FOR RECTIFICAT ION OF THE ORDER OF THE TRIBUNAL DATED 07-05-2010 PASSED IN IT(SS)A NO. 04/ AHD/2008 AND CO NO.51/AHD/2008, FOR THE BLOCK PERIOD ENDING ON 04- 09-2002. 2. THE ASSESSEE IN HIS ABOVE M. A. NO. 133/AHD/2011 ARISING OUT OF IT (SS)A NO. 04/AHD/ 2008 HAS FILED ELABORATE SUBMISSI ONS RUNNING TO FIVE PAGES. HOWEVER, THE LEARNED AR OF THE ASSESSEE HAS CONCISED THE SUBMISSION OF THE ASSESSEE WHICH IS REPRODUCED HERE UNDER FOR REFERENCE AND CONSIDERATION: MISTAKES APPARENT FROM RECORD SUBMITTED IN PRECISE FORM AS DIRECTED: 1) THE GROUND OF APPEAL AGAINST THE DELETION OF ADDITION OF RS.15,16,000/- STATES THE CIT(A) ERRED BECAUSE THE ADDITION WAS M. A. NO.133 AND 135/AHD/2011 (IN IT (SS) A NO.04/A HD/2008 & C. O. NO.51/AHD/2008 BP ENDING ON 04-09-2002) SHRI KIRAN UTTAMCHAND SHAH VS ACIT, GANDHINAGAR CIR CLE 2 BASED ON STATEMENT RECORDED IN POST-SEARCH PROCEEDINGS . HON. TRIBUNAL DID NOT NOTICE THE FACT THAT THERE IS NOTHING LIKE POST-SEARCH PROCEEDING KNOWN TO LAW, AND CONSEQUENT APPRECIATION OF ILLEGALITY OF SUCH EVIDENCE, EXHIBI TED BY THE GROUND OF APPEAL ITSELF TAKEN BY THE REVENUE. NOT N OTICING THE CRUCIAL FACT IS AN ERROR APPARENT FROM RECORD. 2) THE CIT(A) HAS RECORDED THE THAT THE STATEMENT O F MR. CHONA RELIED UPON WAS NOT ONLY NOT SHOWN TO THE APPELLANT BUT EVEN THE AO HIMSELF DID NOT HAVE IT. THE CIT(A) HAS RECORDED THAT THE AO HAS ADMITTED THIS FACT IN WRITING (PARA 4.4 OF THE APPELLATE ORDER). THE CIT(A) HELD THIS TO BE A MAJOR INFIRMITY IN FRAMING THE ASSESSMENT. THE HON. TRIBUNAL HAS NOT TAKEN NOTICE OF THIS CRUCIAL FACT RECORDED IN THE APPELLATE ORDER. 3) THE HON. TRIBUNAL RECORDS IN PARAGRAPH 7: THE AO HAS INITIATED PROCEEDINGS UNDER SECTION 158BD IN THE PRESENT CASE WHICH REMAINS UNCHALLENGED AND UNCONTROVERTED. THIS STATEMENT DOES NOT RECORD THE FACTS CORRECTLY. 4) DIRECTION TO THE CIT(A) TO INQUIRE FROM THE RECO RD OF SHRI PRADIP CHONA, IF FACTUM OF ON MONEY NOT ACCEPTED IN H IS HANDS, THEN SIMILAR TREATMENT BE GIVEN TO ASSESSEE AND, IF NO M ONEY ASSESSED IN HIS CASE ADDITION BE MADE, INCONSISTEN T WITH THE DULY RECORDED FACT THAT SHRI PRADIP CHONA HAD DECLARED RECEIPT OF ON MONEY DURING SEARCH ITSELF. 5) CROSS-OBJECTIONS NOT TAKEN UP FOR HEARING AND AD JUDICATION. 3. THE LEARNED AR REITERATED THE SUBMISSIONS MADE I N THE MISC. APPLICATION AND PRAYED THAT THE ORDER OF THE TRIBUN AL DATED 07-05-2010 REFERRED SUPRA MAY BE RECALLED. ON THE OTHER HAND, THE LEARNED DR VEHEMENTLY OPPOSED TO THE SUBMISSION OF THE LEARNED AR AND ARGUED THAT RECALLING OF THE ABOVE ORDER OF THE TRIBUNAL AMOUNT TO REVIEW OF THE ORDER AND THAT IS NOT PERMISSIBLE UNDER THE ACT. IT WAS, THEREFORE, PRAYED BY THE LEARNED DR, THAT THE MISC. APPLICATION OF THE ASSES SEE MAY BE DISMISSED. M. A. NO.133 AND 135/AHD/2011 (IN IT (SS) A NO.04/A HD/2008 & C. O. NO.51/AHD/2008 BP ENDING ON 04-09-2002) SHRI KIRAN UTTAMCHAND SHAH VS ACIT, GANDHINAGAR CIR CLE 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS ON RECORD. ON THE FIRST ISSUE, THE ASSESS EE HAS HOTLY CONTESTED IN THIS MISC. PETITION STATING THAT THE RECORDING OF T HE TRIBUNAL IN ITS ORDER THAT THE ADDITION WAS BASED ON STATEMENT RECORDED IN PO ST-SEARCH PROCEEDINGS IS ERRONEOUS BECAUSE THERE IS NO PROCE DURE UNDER THE ACT FOR POST-SEARCH PROCEEDINGS AND THIS AMOUNTS TO BE A MI STAKE APPARENT ON RECORD AND ANY ORDER BASED ON SUCH FINDING OF THE T RIBUNAL IS ERRONEOUS AND REQUIRES TO BE RECTIFIED BY RECALLING THE ORDER . THIS ASSERTION OF THE ASSESSEE CANNOT BE JUSTIFIED BECAUSE THE ASSESSEE H AS NOT FURNISHED THE DETAILS AS TO WHEN THE SEARCH WAS CONCLUDED. BEFORE US, THE REVENUE WAS ALSO NOT IN A POSITION TO SPECIFY SUCH DATE. IN THI S CIRCUMSTANCE, WE DO NOT FIND ANY MERIT IN THE ARGUMENTS OF THE ASSESSEE AND ACCORDINGLY WE DISMISS THIS ISSUE RAISED BY THE ASSESSEE IN THIS M ISC. APPLICATION. 5. WITH REGARD TO THE SECOND AND THIRD ISSUE, WE AR E OF THE CONSIDERED VIEW THAT CERTAIN FACTS, ARGUMENTS AND FINDINGS REC ORDED BY THE REVENUE AUTHORITIES IN THEIR RESPECTIVE ORDERS NEED NOT BE SPECIFICALLY MENTIONED IN THE ORDER OF THE TRIBUNAL. NON-RECORDING OF SUCH OB SERVATIONS IMBEDDED IN THE ORDERS OF THE REVENUE AUTHORITIES IN THE TRIBUN AL ORDER WILL NOT MAKE THE TRIBUNAL ORDER ERRONEOUS SO AS TO RECALL THE SA ME. THEREFORE, IN SUCH CIRCUMSTANCE, WE DO NOT CONSIDER THAT THERE IS AN A PPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. ACCORDINGLY, WE DISMISS BOTH THE TWIN ISSUES RAISED BY THE ASSESSEE IN HIS MISC. APPLICATION. 6. WITH RESPECT TO THE FOURTH ISSUE POINTED OUT BY THE ASSESSEE, WE ARE OF THE OPINION THAT IT IS A CONSCIOUS DECISION REND ERED BY THE TRIBUNAL AND RECALLING OF THE SAME WILL AMOUNT TO REVIEW OF THE TRIBUNAL ORDER WHICH IS NOT PERMISSIBLE BY THE ACT. THEREFORE, WE DISMISS T HIS ISSUE RAISED BY THE ASSESSEE IN HIS MISC. APPLICATION. M. A. NO.133 AND 135/AHD/2011 (IN IT (SS) A NO.04/A HD/2008 & C. O. NO.51/AHD/2008 BP ENDING ON 04-09-2002) SHRI KIRAN UTTAMCHAND SHAH VS ACIT, GANDHINAGAR CIR CLE 4 7. WITH RESPECT TO THE FIFTH ISSUE, WE FIND THAT TH E ISSUE WITH RESPECT TO THE CROSS OBJECTION IS MENTIONED AT THE BEGINNING O F THE TRIBUNAL ORDER AND IN THE LAST SENTENCE OF THE ORDER WHEREIN IT IS STATED THAT THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED FOR STATISTICA L PURPOSE. THEREFORE, IT IS OBVIOUS THAT THE TRIBUNAL AFTER CONSIDERING THE ISS UE WHICH IS INTER-RELATED WITH THE REVENUES APPEAL HAS REMITTED BACK THE MAT TER TO THE FILE OF THE LEARNED CIT(A). IN THIS SITUATION, WE DO NOT FIND A NY MISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL WHICH REQUIRES TO BE RECTIFIED. THEREFORE, THIS ISSUE RAISED BY THE ASSESSEE IN HIS MISC. APPL ICATION IS ALSO DISMISSED. 8. WITH RESPECT TO CERTAIN OTHER ISSUES ON LIMITATI ONS U/S 158 BE OF THE ACT, WE FIND THIS ISSUE WAS NOT RAISED BEFORE THE T RIBUNAL BY THE ASSESSEE AND THEREFORE, THE SAME WERE NOT CONSIDERED. HENCE, WE DO NOT FIND ANY MISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRIB UNAL WHICH REQUIRES TO BE RECTIFIED. 9. IN THE RESULT, BOTH THE MISC. APPLICATIONS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14-12-2012 SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD M. A. NO.133 AND 135/AHD/2011 (IN IT (SS) A NO.04/A HD/2008 & C. O. NO.51/AHD/2008 BP ENDING ON 04-09-2002) SHRI KIRAN UTTAMCHAND SHAH VS ACIT, GANDHINAGAR CIR CLE 5 1. DATE OF DICTATION: 07-12-2012 (DIRECT ON COMPUTE R) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 10-12-2012/12-12-12 OTHER MEMBER : 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR.P.S ./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: