The ACIT, Circle-1, RAJKOT-GUJARAT V. Shri Ramjibhai K. Shiyani, RAJKOT-GUJARAT

MA 21/RJT/2006

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8346 (ITAT-RAJKOT)
• Duration Of Justice: 6 year(s) 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-05-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-05-2012
• Assessment Year: misc
• Appeal Filed On: 22-03-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: M P SARDA
• Keywords: Unexplained investment; Gift

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT . .. . . . . . , , , , . .. . . . . . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K . SRIVASTAVA, AM MA NO. 21/RJT/2006 (ARISING OUT OF IT(SS) NO.11/RJT/2003) BLOCK PERIOD 01.04.1987 TO 14.10.1997 ACIT., CIRCLE -1 V. SHRI RAMJIBHAI K. SHYANI RAJKOT. SHERI NO.15, JAGRUTI SHRAMJIVI SOCIETY,RAJKOT. DATE OF HEARING : 04-05-2012. DATE OF PRONOUNCEMENT : 22-05-2012. REVENUE BY: SHRI M. K. SINGH, D.R ASSESSEE BY: SHRI M. P. SARDA, C.A. / // / ORDER . .. . . . . . /D. K. SRIVASTAVA: THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT READS AS UNDER:- 1. IN THIS CASE, THE DEPARTMENT HAS PREFERRED AN APPEAL AGAINST THE ORDER OF THE C.I.T.(A) ON THE FOLLOWING POINTS: I. RELIEF ON ACCOUNT OF ESTIMATED RENTAL INCOME OF RS.1,32,000/- BY SMT. RASHMIBEN. II RELIEF ON ACCOUNT OF CASH CREDIT OF RS.1,33,000/ -. III RELIEF ON ACCOUNT OF GIFT RECEIVED OF RS.97,000 /- BY VARIOUS FAMILY MEMBERS. IV RELIEF ON ACCOUNT OF ESTIMATED CAR RENTAL CHARGE S OF RS.72,000/-. V. RELIEF ON ACCOUNT OF UNACCOUNTED INVESTMENT IN C ONSTRUCTION OF HOUSE AT RS.3,49,780/-. VI. RELIEF ON ACCOUNT OF LIP PAID OF RS.1,12,731/-. VII. ADDITION OF RS.13,49,300/- ON ACCOUNT OF CASH FOUND RELIEF GRANTED ONLY OF RS.25,000/- SO THIS FINDINGS OF THE LD. CIT(A) IS ACCEPTABLE. NO SECOND APPEAL ON THIS ISSUE IS RECOMMENDED. VIII. RELIEF ON ACCOUNT OF JEWELLERY FOUND OF RS.6, 62,479/-. 2 MA 21/RJT/2006 IX. ON ACCOUNT OF REMARKING OF JEWELLERY/DEPOSIT IN BANK OF RS.65,016/-. X. GIFT RECEIVED BY AMIT R. SHYANI OF RS.1,00,000/- XI. JEWELLERY MAKING BILLS/PURCHASE OF PROPERTY OF RS.2,04,110/-. XII. GIFT OF PREMJI NARAYAN & OTHER PURCHASES AND D EPOSITS OF RS.9,12,408/-. XIII. BANK DEPOSIT EXPENSES AND PROPERTY PURCHASED OF RS.10,40,908/-. XIV. ON ACCOUNT OF PROPERTIES OF RS.15,00,000/-. XV. INVESTMENTS IN SHAPAR FACTORY OF RS.13,00,000/- . XVI. ALLEGED ADVANCES MADE BY SHRI MOHANBHAI BHOGAY ATA OF RS.32,66,000/-. XVII. RELIEF ON ACCOUNT OF INCOME RETURNED BY SHRI JAYESH SHIYANI OF RS.6,72,000/-. XVIII. RELIEF ON ACCOUNT OF INCOME RETURNED BY RASH MIBEN SHIYANI OF RS.1,10,000/-. HOWEVER THE HONBLE ITAT HAS DECIDED THE GROUNDS OF APPEAL AT SL. NO.1 TO 7 ONLY STATING THAT THE REMAINING GROUNDS OF APPEAL I.E. VIII TO XVIII HAVE NOT BEEN PRESSED BY THE LEARNED DEPARTMENTAL REPRESENTA TIVE DURING THE COURSE OF HEARING AND THAT IT WAS STATED THAT NO SECOND A PPEAL ON THIS ISSUE IS RECOMMENDED. THE SAID SENTENCE NO SECOND APPEAL ON THIS ISSUE IS RECOMMENDED PERTAINS TO GROUND NO. VII ONLY AS SEEN FROM THE C OPY OF GROUNDS OF APPEAL (COPY IS ENCLOSED FOR READY REFER ENCE). GROUND NO.VII IS REGARDING RELIEF GRANTED OF RS.25,000/- IN RESPECT OF CASH FOUND. THEREFORE, NO SECOND APPEAL WAS RECOMMENDED ON THAT POINT ONLY . 2. IT IS ALSO MENTIONED IN THE ORDER THAT THE LEARN ED DR HAS NOT PRESSED THESE GROUNDS. SHRI R. K. GUPTA, CIT(DR), WHO HAD R EPRESENTED THE DEPARTMENT IN THIS CASE HAS CLARIFIED VIDE HIS LETT ER NO.CIT(DR)-ITAT/11/R/02 DATED 12.12.2005 THAT THE OBSERVATION OF THE BENCH IS TOTALLY INCORRECT AND CONTRARY TO THE FACTS. I HAVE REPRESENTED THE CASE DURING THE COURSE OF HEARING. THERE WAS NO QUESTION OF NOT PRESSING ANY GROUND. AS SEEN FROM THE ABOVE CLARIFICATION, THE HONBLE ITATS OBSERVA TION THAT THE LEARNED DR HAS NOT PRESSED THESE GROUNDS IS ALSO A MISTAKE APP ARENT FROM THE RECORD. PRAYER IN VIEW OF THE ABOVE, IT IS KINDLY REQUESTED TO REC TIFY THE SAID MISTAKE U/S 254(2) OF THE I.T. ACT AND DECIDE THE ISSUE IN APPE AL ON MERITS OF THE CASE. 3 MA 21/RJT/2006 2. FACTS GIVING RISE TO THE M.A. FILED BY THE DEPAR TMENT ARE THAT THE DEPARTMENT HAD FILED APPEAL BEARING IT(SS)A NO.11/RJT/2003 AGA INST THE ORDER PASSED BY THE CIT(A) ON 28-01-2003. THE SAID APPEAL WAS DISPOSED OFF BY THIS TRIBUNAL, VIDE ITS ORDER DATED 02-12-205. GROUND NOS. VIII TO XVIII TA KEN BY THE DEPARTMENT WERE DISPOSED OFF BY THIS TRIBUNAL AS UNDER:- 11. GROUND NOS. VIII TO XVIII WERE NOT PRESSED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE DURING THE COURSE OF HE ARING AND WE ALSO FOUND THAT IN THE GROUNDS OF APPEAL, IT WAS STATED THAT NO APPEAL ON THIS ISSUE IS RECOMMENDED. 11.1 IN VIEW OF THE ABOVE, GROUND NOS. VIII TO XVII I OF THE REVENUES APPEAL ARE DISMISSED IN LIMINE. 3. THE CASE OF THE DEPARTMENT AS MADE OUT IN THE M. A. IS THAT THE LD. CIT(DR) HAD NOT ONLY PRESSED ALL THE GROUNDS OF APPEAL BUT HAD ALSO ARGUED THEM AT THE TIME OF HEARING OF APPEAL BEFORE THIS TRIBUNAL AND THERE FORE THE OBSERVATIONS MADE BY THIS TRIBUNAL IN PARA 11 OF ITS ORDER THAT GROUND N OS. VIII TO XVIII WERE NOT PRESSED BY THE LD. DEPARTMENTAL REPRESENTATIVE WERE FACTUAL LY INCORRECT. THE DEPARTMENT SEEKS ADJUDICATION OF GROUND NOS. VIII TO XVIII ON THAT BASIS. IT IS ALSO THE CASE OF THE DEPARTMENT THAT THE DEPARTMENT HAD DECIDED NOT TO FILE APPEAL AS REGARDS THE ISSUE RAISED IN GROUND NO.7 ALONE. 4. IN REPLY, THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO ERROR IN THE ORDER OF THE TRIBUNAL AS THE TRIBUNAL HAD MADE THE AFORESAID OBSERVATIONS AFTER DUE CONSIDERATION. IN SUPPORT OF HIS SUBMISSION, HE RELIED UPON THE JUDGMENT OF THE KERALA HIGH COURT I N JOSEPH KURUVILLA V. C.I.T., 234 ITR 55 (KER.) AND OF THE HONBLE MADHYA.PRADESH HIG H COURT IN MAHAKOSHAL CERAMICS V. C.I.T., 13 TAXMAN 297 (MP). 5. WE HAVE HEARD BOTH THE PARTIES. THERE IS NO DISP UTE THAT THIS TRIBUNAL HAS NOT ADJUDICATED UPON GROUND NOS. VIII TO XVIII ON M ERIT. THE REASON GIVEN IN THE ORDER PASSED BY THIS TRIBUNAL IS THAT THEY WERE NOT PRESSED BY THE DEPARTMENTAL REPRESENTATIVE AT THE TIME OF HEARING. THE DEPARTME NT CONTENDS THAT THEY WERE NOT ONLY PRESSED BUT ALSO ARGUED BY THE CIT DR AND THER EFORE THE AFORESAID OBSERVATIONS MADE BY THIS TRIBUNAL ARE INCORRECT. A NOTHER REASON GIVEN BY THIS TRIBUNAL IN ITS ORDER FOR DISMISSING GROUND NOS. VI I TO XVIII IS THAT THE DEPARTMENT ITSELF HAS STATED IN THE GROUNDS OF APPEAL THAT NO SECOND APPEAL ON THIS ISSUE IS RECOMMENDED. 6. WE HAVE PERUSED THE GROUNDS OF APPEAL FILED BY T HE DEPARTMENT AND FIND THAT THE NARRATION, I.E., NO SECOND APPEAL ON THIS ISSU E IS RECOMMENDED., WAS MADE JUST BELOW GROUND NO. VII AND THUS IT IS CLEAR THAT THE SAID OBSERVATIONS APPLIED TO GROUND NO. VII ALONE AND NOT TO OTHER GROUNDS OF AP PEAL. TO THE AFORESAID EXTENT, 4 MA 21/RJT/2006 THE OBSERVATIONS MADE BY THE TRIBUNAL IN PARA 11 OF ITS ORDER ARE FACTUALLY INCORRECT. KEEPING IN VIEW OF THE SUBMISSIONS MADE BY THE DEPA RTMENT AND THE FACTUAL ERROR NOTICED BY US IN THE ORDER OF THE TRIBUNAL, WE CONS IDER IT APPROPRIATE TO RECALL PARA 11 OF THE ORDER PASSED BY THIS TRIBUNAL ON 02-12-20 05 IN D.C.I.T. V. RAMJIBHAI K. SHYANI, IT(SS)A NO.11/RJT/2003 AND CONSEQUENTLY RES TORE GROUND NOS. VIII TO XVIII FOR FRESH HEARING AND ADJUDICATION IN ACCORDANCE WI TH LAW. WE ORDER ACCORDINGLY. M.A. FILED BY THE DEPARTMENT IS ALLOWED. RESULTANTL Y, THE REGISTRY IS DIRECTED TO LIST THE APPEAL FOR HEARING AND DISPOSAL OF THE AFORESAI D GROUNDS OF APPEAL TAKEN BY THE DEPARTMENT. ' * 22-05-2012 - ' THIS ORDER PRONOUNCED IN OPEN COURT ON 22-05-2012 SD/- SD/- ( .. / T. K. SHARMA) ( .. / D. K. SRIVASTAVA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER */ DATE 22-05-2012. /RAJKOT ' '' ' 01 01 01 01 21 21 21 21 / COPY OF ORDER FORWARDED TO:- 1. 5 / APPELLANT-. THE ASSTT. INCOME-TAX OFFICER, CIRCL E -1, RAJKOT. 2. 075 / RESPONDENT-SHRI RAMJIBHAI K. SHYANI, RAJKOT. 3. : / CONCERNED CIT-1, RAJKOT. 4. :- / CIT (A), RAJKOT.. 5. 1 0, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASSTT. REGISTRAR/ , / ITAT, RAJKOT