The ACIT, Circle-2(2), Baroda V. Vaishali Electricals, Baroda

MA 146/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8527 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 05-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: M J SHAH
• Keywords: Unexplained investment
• Section: 69

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'# ,$% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MA NO.146/AHD/2011 [ IN ./ IN I.T.A. NO.1525/AHD/2008 ] ( # ( # ( # ( # ( / / / / ASSESSMENT YEAR : 2001-02 ) ASST.CIT CIRCLE-2(2) BARODA # # # # / VS. M/S.VAISHALI ELECTRICALS 115/B, RADHA KRISHNA FLATS NEAR AKOTA GARDEN, AKOTA, BARODA ) $% ./*+ ./ PAN/GIR NO. : AABFV 1414 C ( ), / // / APPLICANT ) .. ( -.), / RESPONDENT ) ), / $ / APPLICANT BY : SHRI B.L.YADAV, SR.D.R. -.), 0 / $ / RESPONDENT BY : SHRI M.J.SHAH, ADV. #1 0 % / / / / DATE OF HEARING : 22.6.2012 2'( 0 % / DATE OF PRONOUNCEMENT : 27.7.12 $3 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THROUGH THIS MISCELLANEOUS PETITION FILED ON 05/09 /2011, THE REVENUE HAS RAISED THE FOLLOWING OBJECTION:- I. IT IS SUBMITTED THAT IN THE ORDER OF ITAT NO. 15 25/AHD/2008 (REVENUE'S APPEAL) AND ITA NO. 1609/AHD/2008 (ASSESSEE'S APPEA L) IN THE CASE OF M/S VAISHALI ELECTRICALS, BARODA FOR A.Y. 2001-02, THE ITAT FOLLOWING THE VIEW TAKEN BY THE ITAT IN THE ASSESSEE'S CASE FOR A.Y. 2 002-03 DELETED ADDITION OF RS. 4,84,198/- ON ACCOUNT OF UNEXPLAINED INVESTM ENT. THE RELEVANT PARA OF ITAT FOR A.Y. 2002-03 IS REPRO DUCED FOR REFERENCE:- MA NO.146/AHD/2011 (IN ITA NO.1525/AHD/2008) ASST.CIT VS. M/S.VAISHALI ELECTRICALS ASST.YEAR 2001-02 - 2 - IN VIEW OF THE ABOVE SETTLED POSITION OF LAW, IN OU R CONSIDERED OPINION THE CONTENTION OF THE REVENUE TO THE EFFECT OF THE ENTIRE SALE PROCEEDS SHOULD BE ADDED TO THE INCOME OF THE ASSESSEE CANNO T BE ACCEPTED. FURTHER, WE FIND NO MATERIAL WAS BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT THE ASSESSEE HAS IN FACT MADE INVESTMENT OF RS. 11,33,329/- FROM ANY UNEXPLAINED SOURCE TO EFFECT UNRECORDED SA LES OF RS. 11,33,329/- FROM ANY UNEXPLAINED SOURCE TO EFFE CT UNRECORDED SALES OF RS.83,23,833/-. THUS IN OUR CONSIDERED OPINION T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS JUSTIFIED IN SUSTAINING THE ADDITION TO THE EXTENT OF RS. 11,33,329/- U/S 69 OF THE ACT ON THE BASIS OF A PRESUMPTION. WE, THEREFORE, DELETE THE ADDITION O F RS. 11,33,329/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT. THUS THE APPEAL OF THE REVENUE IS DISMISSED ARID THE APPEAL OF THE ASSESSE E IS ALLOWED. FROM THE ABOVE IT IS BEING NOTED THAT FINAL DECISIO N GIVEN IN RESPECT OF THE ADDITION OF RS. 11,33,329/- IS CONTRADICTORY, MEANI NG THEREBY ON ONE HAND IT IS HELD THAT THE DECISION OF THE LD.CIT(A), IN W HICH ADDITION MADE U/S 69 C OF THE ACT IS CONFIRMED AND ON THE OTHER HAND THE HON.ITAT DELETED THE ADDITION. IN VIEW OF ABOVE AN MISC. APPLICATION WAS FILED IN ITAT VIDE M.A. NO.LLL/AHD/10 DATED 07.05.2010 AFTER GETTING APPROV AL OF CIT-I, BARODA VIDE NO. BRD/CIT-I/HQ/217-A/107-D/2009-10 DATED 25. 04.2010 FOR A.Y. 2002-03. 2. THE HON.ITAT VIDE ORDER ITA NO.1525 & 160-9/AHD /2008 FOR A.Y. 2001-02 HAS DELETED THE ADDITION OF RS.4,84,19 8/-. THE RELEVANT PARA IS REPRODUCED FOR REFERENCE: FOLLOWING THE VIEW TAKEN BY THE ITAT IN THEIR AFORE SAID DECISION, WE UPHOLD THE ORDER OF THE LEARNED CIT(A) IN DELETI NG THE ADDITION OF RS.21,55,656/- AND FURTHER DELETE THE ADDITIO9N OF RS.4,84,198/- ON ACCOUNT OF UNEXPLAINED INVESTMENT. 2. HAVING HEARD THE SUBMISSION OF BOTH THE SIDES, W E HAVE NOTICED THAT THIS MISCELLANEOUS PETITION OF THE REVENUE HAS BECOME INFRUCTUOUS BECAUSE THE IMPUGNED EARLIER ORDER OF THE TRIBUNAL HAS ALREADY BEEN MA NO.146/AHD/2011 (IN ITA NO.1525/AHD/2008) ASST.CIT VS. M/S.VAISHALI ELECTRICALS ASST.YEAR 2001-02 - 3 - RECTIFIED BY THE RESPECTED ITAT C BENCH AHMEDABAD VIDE ORDER DATED 23/09/2011 IN THE ORDER BEARING MA NO.111/AHD/2010 (IN ITA NO.1046/AHD/2006 AY 2002-03) TITLED AS THE DCIT CI RCLE-2(2) BARODA VS. M/S.VAISHALI ELECTRICALS, BARODA, WHEREIN IT W AS HELD AS UNDER: 2. THE RECORD REVEALED THAT BOTH THE CROSS APPEALS WERE DECIDED BY THE TRIBUNAL VIDE ORDER DATED 08-01-2010. BOTH THE PARTIES HAVE BROUGHT TO OUR NOTICE MISTAKE APPARENT ON RECORD IN PARA 7 PAGE 17 OF THE ORDER OF THE TRIBUNAL IN WHICH IN THE OPERATIVE ORDER OF THE TRIBUNAL THE WORD 'NOT' COULD NOT BE MENTIONED DUE TO TYPOGR APHICAL MISTAKE. THE OPERATIVE ORDER OF THE TRIBUNAL IN PARA 7 PAGE 1 7 OF THE ORDER OF THE TRIBUNAL READS AS UNDER: 'THUS, IN OUR CONSIDERED OPINION THE LEARNED COMMIS SIONER OF INCOME-TAX (APPEALS) WAS JUSTIFIED IN SUSTAINING TH E ADDITION TO THE EXTENT OF RS.11,33,329/- U/S 69 OF THE ACT ON T HE BASIS OF A PRESUMPTION. WE, THEREFORE, DELETE THE ADDITION OF RS.11,33,329/- MADE ON ACCOUNT OF UNEXPLAINED INVES TMENT. THUS, THE APPEAL OF THE REVENUE IS DISMISSED AND TH E APPEAL OF THE ASSESSEE IS ALLOWED.' 3. IT IS STATED THAT WHILE GIVING THE AFORESAI D FINDINGS THE WORD 'NOT WAS NOT MENTIONED IN BETWEEN THE WORDS WAS JUSTIFIED . THE FINDING OF THE TRIBUNAL CLEARLY SNOWS THAT IT IS TY POGRAPHICAL MISTAKE WHICH IS CORRECTED ACCORDINGLY. NOW THE ABOVE OPERA TIVE ORDER OF THE TRIBUNAL WOULD READ AS UNDER: 'THUS, IN OUR CONSIDERED OPINION THE LEARNED COMMIS SIONER OF INCOME-TAX (APPEALS) WAS NOT JUSTIFIED IN SUSTAININ G THE ADDITION TO THE EXTENT OF RS.11,33,329/-U/S 69 OF THE ACT ON THE BASIS OF A PRESUMPTION. WE, THEREFORE, DELETE THE ADDITION OF RS.11,33,329/- MADE ON ACCOUNT OF UNEXPLAINED INVES TMENT. THUS, THE APPEAL OF THE REVENUE IS DISMISSED AND TH E APPEAL OF THE ASSESSEE IS ALLOWED.' THE ORDER OF THE TRIBUNAL IS, THEREFORE, RECTIFIED TO THE ABOVE EXTENT. 3. THE GRIEVANCE OF THE REVENUE NOW STOOD RESOL VED BY INTRODUCING THE WORD NOT AND RECTIFYING SUITABLY THE SAID ORDER OF THE TRIBU NAL. MA NO.146/AHD/2011 (IN ITA NO.1525/AHD/2008) ASST.CIT VS. M/S.VAISHALI ELECTRICALS ASST.YEAR 2001-02 - 4 - RESULTANTLY, WE HEREBY DISMISS THIS MISCELLANEOUS A PPLICATION OF THE REVENUE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. SD/- SD/- ( .'# ) ( ) $% ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD; DATED 27 / 7 /2012 4..#, .#../ T.C. NAIR, SR. PS $3 0 -5 6$5( $3 0 -5 6$5( $3 0 -5 6$5( $3 0 -5 6$5(/ COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPLICANT 2. -.), / THE RESPONDENT 3. 7 / CONCERNED CIT 4. 7() / THE CIT(A)-II, BARODA 5. 5:; -# , , / DR, ITAT, AHMEDABAD 6. ; <1 / GUARD FILE. $3# $3# $3# $3# / BY ORDER, .5 - //TRUE COPY// = == =/ // / * * * * ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION ON 22.6.12 (DICTATION-PAD PAGES 3 ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.6.12 OTHER MEMBER 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 D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 27.7.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.7.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER