The ACIT, Circle-5, Surat V. Shri Ashfaq Haji Yusuf Noorani, Surat

MA 191/AHD/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9760 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 11-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE SHRI MUKUL KUMAR SHRAWAT, JM AND SHRI A. MO HAN ALANKAMONY, AM) M.A. NO.191/AHD/2012 (IN ITA NO.2373/AHD/2008 FOR AY: 2005-06) THE ADDL. C. I. T., RANGE-5, SURAT VS ASHFAQ HAZI YUNUS NOORANI, PROP. MAY CORPORATION, 105, SHALIMAR TEXTILE MARKET, SALABATPURA, DORIAWAD, SURAT P. A. NO. AAOPN 6148 A (APPLICANT) (RESPONDENT) APPLICANT BY SHRI Y. P. VERMA, SR. SR RESPONDENT BY SHRII R. N. VEPARI, AR DATE OF HEARING: 04-01-2013 DATE OF PRONOUNCEMENT: 11-01-2013 O R D E R PER A. MOHAN ALANKAMONY: THIS MISC. APPLICATION IS FILED BY THE REVENUE REQUESTING FOR RECALLING THE ORDER OF T HE TRIBUNAL DATED 10-12- 2010 PASSED IN ITA NO.2373/AHD/2008 FOR THE ASSESSM ENT YEAR 2005-06. 2. THE REVENUE IN THIS MISC. APPLICATION HAS SUBMIT TED AS UNDER: 2. IN THIS CASE, APPEAL BY THE REVENUE IS PREFERRE D AGAINST THE ORDER OF LD. CIT(A)-III, SURAT DATED 20/08/2007 FOR A. Y. 2004-05. THE APPEAL OF REVENUE IS PARTLY ALLOWED. ON THE ISS UE OF UNPAID CREDITORS, THE HONBLE ITAT HAS RESTORED BACK THE M ATTER TO THE LD. CIT(A) FOR VERIFICATION. WHILE RESTORING BACK THE A BOVE ISSUE THE HONBLE ITAT HAS ERRED IN CONSIDERING THE FOLLOWING FACTS: ON PERUSAL OF PARA NO.4 OF THE ORDER OF HONBLE IT AT DATED 10- 12-2010, AN AMBIGUITY ARISES BETWEEN SEC. 68 & SEC. 41(1) OF THE I, T. AC. M. A. NO.191/AHD/2012 (IN ITA NO.2373/AHD/2008) ADDL. CIT RANGE-5, SURAT VS ASHFAQ HAJI YUNUS NOORA NI 2 AS PER ASSESSMENT ORDER PASSED U/S. 143(3) OF A. O . DATED 23.11.2007, PARA 2.2 ALREADY MENTIONS THAT, 18 PART IES ARE TREATED AS NON-EXISTENT/BOGUS LIABILITY OF THE ASSESSEE AND SAME IS ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. IT SHOWS THAT THERE IS NO MENTION OF ADDITION OF CASH CREDIT U/S. 68. THE ADD ITION IS MADE AS NON-EXISTENT/BOGUS LIABILITY IN CASE OF 18 PARTI ES U/S. 41(1) ONLY. 3. PARA 6 OF THE ORDER OF HONBLE ITAT IS ALSO NOT CLEAR IN RESPECT OF EXISTING LIABILITIES IN CASE OF THE ASSESSEE AS ON 01.04.2004 & 31.03.2005. IT MAKES NO DIFFERENCE IN CASE OF RS.47 ,64,326/- ADDED & BOGUS LIABILITY IS THE SAME AS IS OUTSTANDING AS ON 01.04.2004 OR 31.03.2005. IT DOES NOT MATTER BECAUSE SECTION 41(1 ) DOES NOT REQUIRE THAT THE LIABILITY MUST HAVE BEEN CREATED I N THE YEAR UNDER CONSIDERATION ONLY. IT IS SUFFICIENT THAT THE ASSES SEE MUST HAVE CLAIMED THE AMOUNT AS DEDUCTION BY WAY OF REVENUE E XPENDITURE AGAINST THE CHARGEABLE INCOME OF ANY EARLIER ASSESS MENT YEAR/YEARS. HENCE THE LIABILITY OF RS.47,64,326/- IN THE CASE OF 18 PARTIES ARE FOUND NON-EXISTENT/BOGUS AS ON 31.03.2005 AS EX AMINED BY A. O. IT IS NOT CORRECT THAT IF RS.47,64,326/- IS OUTS TANDING LIABILITY AS ON 01.04.2004, NO ADDITION IN A. Y. 2005-06 IS CALLED FOR. CONSIDERING THE FACTS OF THE CASE NARRATED ABOVE, IT APPEARS THAT ABOVE REFERRED APPELLATE ORDER IS PASSED WITHO UT CONSIDERING THE VIEW TAKEN BY THE AO WHILE PASSING ORDER U/S 143 (3 ) OF THE I T ACT DATED 23.11.2007. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, CAREFULLY P ERUSED THE ORDERS OF THE REVENUE AUTHORITIES AND GONE THROUGH THE ORDER OF THE TRIBUNAL. THE TRIBUNAL IN ITS ORDER HAD MADE A CATEGORICAL FINDIN G THAT IT IS NOT CLEAR FROM THE ORDERS OF THE REVENUE THAT THE AMOUNT OF RS. 47 ,64,326/- BEING SUNDRY CREDITORS PERTAINING TO 18 PERSONS WAS OUTSTANDING AS ON 01-04-2004 OR RELATED THE ASSESSMENT YEAR 2005-06. THE TRIBUNAL F URTHER OBSERVED THAT:- (I) IF THE SUNDRY CREDITORS OF RS.47,64,326/- PERTA INING TO 18 PERSONS HAS ARISEN DURING THE ASSESSMENT YEAR 2005- 06, THEN THE ADDITION FOR THE AMOUNT SHALL BE SUSTAINED BECA USE THE ASSESSEE HAD AGREED FOR SUCH ADDITION. M. A. NO.191/AHD/2012 (IN ITA NO.2373/AHD/2008) ADDL. CIT RANGE-5, SURAT VS ASHFAQ HAJI YUNUS NOORA NI 3 (II) IF THE SUNDRY CREDITORS OF RS.47,64,326/- PERT AINING TO 18 PERSONS HAD ARISEN DURING THE EARLIER ASSESSMENT YE AR VIZ. 2004-05, THEN ADDITION CANNOT BE MADE LEGALLY BY TH E REVENUE U/S 68 OF THE ACT EVEN THOUGH THE ASSESSEE HAD AGRE ED FOR SUCH ADDITION. THUS, FOR THE LIMITED PURPOSE OF VERIFICATION OF TH E FACT THAT, WHEN THE SUNDRY CREDITORS FOR RS. 47,64,326/- PERTAINING TO 18 PERSONS HAS ARISEN I.E. EITHER DURING THE ASSESSMENT YEAR 2004-05 OR 2005-0 6, THE MATTER WAS REMITTED BACK TO THE FILE OF THE CIT(A) AND THEREAF TER TO DECIDE THE ISSUE BY THE LEARNED CIT(A) AS PER THE DIRECTIONS OF THE TRI BUNAL MENTIONED SUPRA. THEREFORE, WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL AS POINTED OUT BY THE REVENUE IN THIS MISC. APPLICATIO N. 4. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE IS DISMISSED, ORDER PRONOUNCED IN THE OPEN COURT ON 11-01-2013 SD/- SD/- (MUKUL KUMAR 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 ASS T. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 08 -01-2013/09-13-13 (DIRECT ON COMPUTER) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: -01 -2013/ 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: