Shri Rajendrakumar P.Patel, Unjha V. The ACIT., Mehsana Circle, Mehsana

MA 164/AHD/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1038 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-10-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-10-2013
• Assessment Year: misc
• Appeal Filed On: 22-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: S N DIVETIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI T. R. MEENA, ACCOUNTANT MEMBER MA NO.164/AHD/2012 (ARISING OUT OF IT(SS)A NO.340/AHD/2004) RAJENDRA KUMAR P. PATEL. C/O NARENDRA KUMAR JITENDRA KUMAR, 14, MARKET YARD, MAIN LINE, OLD GUN BAZAAR, UNJHA (N.G.) VS THE ACIT MEHSANA CIR. MEHSANA, GUJARAT. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI P.L. KUREEL, SR.D.R. ASSESSEE(S) BY : SHRI S.N. DIVETIA, A.R. DATE OF HEARING : 04/10/ 2013 DATE OF PRONOUNCEMENT : 18/10/2013 O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS MISC. PETITION HAS BEEN FILED ON 22 ND OF AUGUST, 2012 AGAINST THE ORDER OF THE TRIBUNAL AS MENTIONED IN NOMENCLAT URE DATED 26 TH FEBRUARY, 2010. THE APPLICANT HAS STATED IN THE APP LICATION ARE AS UNDER: THE BRIEF FACTS OF THE CASE ARE THAT THE APPLICANT ALONG WITH ON SRI CHANDRESH P. PRAJAPATI WERE INTERCEPTED BY JAIPUR P OLICE ON 18.9.2001 WHEN HE WAS FOUND TO BE TAKING WITH HIM CASH OF RS.25 LA KH AND A SATISFACTORY EXPLANATION ABOUT THE SOURCE OF THE SAID CASH COULD NOT BE GIVEN TO THE POLICE AUTHORITIES SO THAT THE SAME WERE REQUISITIONED BY WARRANT OF AUTHORIZATION U/S. 132A ISSUED ON 19.9.2001 BY IT DEPT. ULTIMATEL Y, PROCEEDINGS U/S. 158C WERE COMMENCED AGAINST BOTH TO THEM AND THE AO COMP LETED ASSTT. WHEREBY SUBSTANTIVE ADDITION OF RS.25 LAKHS WAS MADE IN THE CASE OF THE PRESENT APPLICATION. BEING AGGRIEVED, THE APPELLANT PREFERR ED APPEAL TO CIT(A) WHO UPHELD THE SUBSTANTIVE ASST. IN THE HANDS OF THE PR ESENT APPLICANT VIDE ORDER NO.CIT(A)-XXI/MEH/198/03-04 DATED 30.9.2004. HENCE, APPEAL WAS PREFERRED BY THE APPLICANT BEFORE THE HON. TRIBUNAL WHICH INCLUDED THE FOLLOWING GROUNDS OF APPEAL. M A NO.164/AHD/2012 IN IT(SS)A NO.340/AHD/2004 SRI RAJENDRA P. PATEL V/S. ACIT MEHSANA - 2 - THAT THE LEARNED ASSESSING OFFICER HAS ERRED ON FA CTS AS WELL AS IN LAW IS ASSESSING RS.1,68,400/- AS UNDISCLOSED INCOM E & THE LEARNED CIT(APPEALS) HAS ERRED IN UPHOLDING THE SAME. THE TRIBUNAL SUBMITS WITH UTMOST RESPECT THAT THE H ONBLE TRIBUNAL HAS NOT DISPOSED OF THE AFORESAID GROUNDS OF APPEAL WHILE P ASSING THE ORDER ON 26.2.2010. IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES OF THE CSE, THE APPLICANT MOST HUMBLY SUBMITS THAT THERE IS A MISTAKE APPARENT FRO M RECORD OF THE HONBLE TRIBUNAL OF FAILURE TO CONSIDER THE SAID GROUND OF APPEAL. IT IS THEREFORE PRAYED THAT AFORESAID ORDER OF THE HONBLE TRIBUNAL MAY PLEASE BE RECALLED TO A LIMITED EXTENT OF ADJUDICATING THE SAID GROUND OF APPEAL. 2. LEARNED AR, MR. S.N. DIVETIA HAS PLEADED THAT TH E ISSUE OF UNDISCLOSED INCOME OF RS.1,68,400/- WAS RAISED BEFO RE THE TRIBUNAL VIDE GROUND NO.5, HOWEVER, THAT WAS NOT ADJUDICATED BY T HE TRIBUNAL. IT WAS INCORRECT ON THE PART OF THE TRIBUNAL TO RECORD IN THE BODY OF THE APPELLATE ORDER THAT THIS GROUND WAS NOT CONTESTED BY LEARNED AR. HE HAS PLEADED THAT THE SAID GROUND WAS CONTESTED BY HIM B UT REMAIN UNDECIDED BY THE TRIBUNAL UNDER WRONG IMPRESSION. 3. ON THE OTHER HAND FROM THE SIDE OF THE REVENUE, LEARNED SR.DR. MR. P.L. KUREEL HAS SUPPORTED THE VIEW AND THE OBSE RVATION MADE BY THE TRIBUNAL. HE HAS VEHEMENTLY ARGUED THAT IT WAS UNFA IR ON THE PART OF THE LEARNED AR TO CHALLENGE THE SAID OBSERVATION OF THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE SIDES AND WE ARE OF THE V IEW THAT IT IS NOT POSSIBLE FOR US TO TAKE ANY CONTRARY VIEW IN RESPEC T OF THE OBSERVATION OF THE RESPECTED CO-ORDINATE BENCH MADE IN THE IMPUGNE D TRIBUNAL ORDER IN PARAGRAPH 14, REPRODUCED BELOW: ON GROUND NO.5 AND 6, LEARNED COUNSEL FOR ASSESSEE DID NOT ARGUE THE APPEAL, THEREFORE, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE FINDINGS OF AUTHORITIES BELOW. THESE GROUNDS ARE ACCORDINGLY DISMISSED. 4.1 THERE IS NO EVIDENCE WITH THE LEARNED AR TO EST ABLISH THAT IN FACT HE HAD ARGUED THE SAID GROUND BEFORE THE RESPECTED CO-ORDINATE BENCH. M A NO.164/AHD/2012 IN IT(SS)A NO.340/AHD/2004 SRI RAJENDRA P. PATEL V/S. ACIT MEHSANA - 3 - EVEN AN AFFIDAVIT SHALL NOT SERVE THE PURPOSE BECAU SE SUCH AN ASSERTION SHALL BE NOTHING BUT A SELF-SERVING STATEMENT. RATH ER, WE ARE OF THE VIEW THAT IF THE RESPECT CO-ORDINATE BENCH HAS PASSED A LENGTHY ORDER RUNNING IN 23 PAGES AND THEREIN DECIDED SOME LEGAL AS WELL AS FACTUAL ISSUE IN DETAIL THEN THERE WAS NO REASON AS TO WHY THIS GROU ND SHOULD ALSO NOT BE DECIDED ON MERITS IF IT HAD BEEN ARGUED BY LEARNED AR. RESULTANTLY, WE FIND NO FORCE IN THIS MISC. PETITION, HENCE DISMISS ED. SD/- SD/- (T.R. MEENA) (MUKUL KR. SHR AWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED /10/2013 PRABHAT KR. KESARWANI, SR.P.S. TRUE COPY COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A)-III, AHMEDABAD 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, (DY./ASSTT.REGISTRAR) ITAT, AHMEDABAD