Appeal details
Counselvise Citation
[2010] 123 COUNSELVISE.COM (IT) 4346 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 4 month(s) 19 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
05-03-2010
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2005-2006
Appeal Filed On
16-10-2008
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : A HMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBLE SH RI N.S. SAINI, A.M.) M.A. NO. 236/AHD./2008 (ARISING OUT OF I.T.A. NO. 1605/AHD./2008 & CO NO. 137/AHD/2008) ASSESSMENT YEAR : 2005-2006 SHRI RUPESH K. SHAH (HUF), -VS.- ASSISTAN T COMMISSIONER OF INCOME TAX, PROP. OF M/S. MANGALAM FASHIO, AHMEDABAD CIR CLE-7, AHMEDABAD (PAN : AAMHS 0647 B) (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI B.R. POPAT, C.A . RESPONDENT BY : SHRI V.C. MODI, SR. D. R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE FOR RE-CALLED THE DECISION DATED 07.07.2008 OF THE ITAT, A BENCH, AHMEDABAD IN I.T .A. NO. 1605/AHD./2008 FOR THE ASSESSMENT YEAR 2005-06. 2. THE CONTENTS OF THE MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE, WHICH CLEARLY INDICATES TO THE FOLLOWING MISTAKES THAT HAVE CREPT IN, IN THE O RDER PASSED BY THIS TRIBUNAL DATED 07.07.2008, READ AS UNDER :- 3(A) AFTER ADMITTING THAT THE VALUATION OF CLOSING STOCK IS INCLUSIVE OF THE COST OF THE UNEXPLAINED STOCK PHYSICALLY FOUND DURING SURVEY, T HE HON'BLE BENCH HAS INADVERTENTLY HELD THAT THE UNDISCLOSED INVESTMENT IN THE STOCK HAS NOT BEEN DECLARED AS UNDISCLOSED INCOME. THE APPELLANT SUBMITS THAT T HE CLOSING STOCK CREDITED TO THE TRADING ACCOUNT IS ADMITTEDLY INCLUSIVE OF THE INCO ME SO DECLARED, THEREBY CORRESPONDINGLY INCREASINGLY THE RESULTANT NET PROF IT, WHICH IS ALWAYS THE BALANCING FIGURE. (B) EVEN OTHERWISE, THERE APPEARS TO BE SEVERAL TYP OGRAPHICAL ERRORS IN MENTIONING VARIOUS FIGURES ON PARA 4 OF THE ORDER OF THE HON'B LE BENCH. FOR EXAMPLE, THE VALUE OF DEBIT AND CREDIT TO THE TRADING ACCOUNT HAS BEEN MENTIONED AT RS.24,50,750/-, AS AGAINST THE ACTUAL FIGURE OF RS.30,02,983/-. SIMILA RLY, THE STOCK INCLUDING GROSS PROFIT, ON THE DATE OF SURVEY IS MENTIONED AT RS.52 ,57,952/-, AS AGAINST THE ACTUAL FIGURE OF RS.57,90,476/-. FURTHER THE REDUCTION IN VALUATION ON ACCOUNT OF OUTDATED STOCK WHICH WAS OF RS.5,25,000/- ONLY, IS INADVERTE NLY MENTIONED AT RS.12,06,964/-. SINCE THE REDUCTION OF RS.5,25,000/- IS SUBJECT MAT TER OF A SEPARATE GROUND OF APPEAL, WHICH HAS ALREADY BEEN ADJUDICATED UPON BY THE HON'BLE BENCH, THE CLEAR FACT REMAINS THAT THE CLOSING STOCK CREDITED TO THE TRADING ACCOUNT AND THE RESULTANT 2 MA NO. 236/AHD/2008 NET PROFIT WERE INCLUSIVE OF THE ADDITIONAL INCOME REPRESENTED BY UNEXPLAINED AND EXCESSIVE PHYSICAL STOCK FOUND. 4.1. WITHOUT PREJUDICE TO WHAT HAS BEEN MENTIONED A BOVE, THE APPELLANT SUBMITS THAT CONTRARY TO WHAT HAS BEEN MENTIONED AT PARA 7 OF THE APPELLATE ORDER (ABOUT THE CASE HAVING BEEN REPRESENTED BY THE COUNSEL OF THE ASSESSEE), NO ONE IN FACT REPRESENTED THE APPELLANT, WHEN THE CASE WAS HEARD BY THE HON'BLE BENCH. THIS HAS ALSO BEEN MENTIONED ON THE VERY FIRST PAGE OF THE O RDER. THE APPELLANT SUBMITS THAT SINCE THIS WAS AN APPEAL/ CROSS APPEAL FILED IN THE YEAR 2008 ITSELF, HE WAS GIVEN TO UNDERSTAND BY THE CHARTERED ACCOUNTANT ON ORIGINAL SIDE THAT THE SAME IS NOT LIKELY TO BE HEARD AND WILL BE ADJOUNED SINE DIE. SINCE TH E APPELLANT WAS OF THIS BONA FIDE BELIEF, NO PROFESSIONAL WAS RETAINED FOR THIS APPEL LATE ASSIGNMENT AND NOBODY REPRESENTED THE APPELLANT BEFORE THE HON'BLE BENCH. THERE WAS THUS SUFFICIENT CAUSE FOR NON-APPEARANCE IN THE APPEAL, WHEN THE SAME WAS HEARD. IT CAN THUS BE SEEN FROM THE RECORDS THAT THE CASE HAS BEEN HEARD ONLY FROM THE SIDE OF THE REVENUE, WITH NO REPRESENTATION FROM THE APPELLANT. EVEN THE WRIT TEN SUBMISSIONS SAID TO HAVE BEEN FILED BY THE APPELLANT, WHICH HAS BEEN REPRODU CED IN THE BODY OF THE APPELLATE ORDER, IS PART OF THE CROSS OBJECTION FILED BY THE APPELLANT AN NO SEPARATE WRITTEN SUBMISSION WAS EVER FILED IN RESPONSE TO THE NOTICE OF HEARING OF THE APPEAL SERVED BY THE REGISTRY. 4.2. IN VIEW OF WHAT HAS BEEN MENTIONED ABOVE, AND FURTHER RELYING ON THE PROVISO TO RULE 24 OF THE APPELLATE TRIBUNAL RULES, 1963 READ WITH INTERPRETATION THEREOF MADE BY VARIOUS COURTS AND TRIBUNALS, IT IS PRAYED THAT THIS MISCELLANEOUS APPLICATION MAY PLEASE BE ALLOWED AND AN ORDER MAY PLEASE BE PASSED SETTING ASIDE THE EX PARTE ORDER AND RESTORING THE APPEAL. 3. AT THE TIME OF HEARING OF THIS MISCELLANEOUS APP LICATION FILED BY THE ASSESSEE, SHRI B.R. POPAT, LD. COUNSEL APPEARED ON BEHALF OF THE ASSESSEE AND SUBMITTED BY MENTIONING THE ABOVE CONTENTS OF THIS MISCELLANEOUS APPLICATION THAT SINCE THE ASSESSEE W AS PREVENTED BY SUFFICIENT CAUSE IN APPEARING BEFOR E THE TRIBUNAL, THEREFORE, THE TRIBUNAL MAY RE-CALL I TS ORDER. 3. ON THE OTHER HAND, SHRI V.C. MODI, SR. D.R. APPE ARING ON BEHALF OF THE REVENUE VEHEMENTLY OPPOSED TO THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE. 4. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE CONTENTS OF MISCELLANEOUS APPLICATION AND THE ORDER PASSED BY THIS TRIBUNAL D ATED 07.07.2008. WE ARE CONVINCED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE, THEREFORE, WE RE -CALL THE DECISION OF THIS TRIBUNAL DATED 07.07.200 8 AND DIRECT THE REGISTRY TO FIX THE APPEAL OF THE REVENU E & C.O. OF ASSESSEE ON 12.04.2010. THE DATE OF HEA RING 3 MA NO. 236/AHD/2008 WAS INFORMED TO BOTH THE SIDES. THE LD. COUNSEL OF THE ASSESSEE ASSURED THAT ON THE DATE OF HEARING, I .E. 12.04.2010, HE WILL APPEAR ON BEHALF OF THE ASSESSE E TO ARGUE THE CASE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 05.03.201 0 SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 05/ 03 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.
