The DCIT, S.K. Ward-3, Himatnagar V. M/s. G.H. Vijapura & Co.,(JV), Himatnagar

MA 254/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7887 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 26-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P D SHAH
• Keywords: Additional evidence

Judgement Text

M.A. NO. 254/AHD/2010 (IN IT A 2053/AHD/2006) ASST. YEAR 2003-04 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI MUKUL KR. SHRAWAT, J.M AND SHRI A.K.GA RODIA, AM.) MA NO. 254/AHD/2010 (ARISING OUT OF I.T.A NO. 2053/AHD/2006) (ASSESSMENT YEAR:2003-2004) THE INCOME TAX OFFICER, S.K.WARD-03 H I MATNAGAR VS NARAYAN SINGH GULAB SINGH & CO. J.V, HIMATNAGAR (APPLICANT ) .. (RESPONDENT) PAN : AAAA1793J ON BEHALF OF THE ASSESSEE MR. P.D. SHAH ON BEHALF OF THE REVENUE MR. VINOD TANWANI, SR. DR DATE OF HEARING :16.03.2012 DATE OF PRONOUNCEMENT:25.05.2012 O R D E R PER : SRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER. THIS MISCELLANEOUS PETITION HAS BEEN FILED BY THE REVENUE DEPARTMENT DATED 22.112010 ARISING FROM AN ORDER OF THE TRIBUNAL, AS STATED HEREINABOVE IN THE NOMENCLATURE; DATED 29.02 .2008. FROM THE SIDE OF THE REVENUE DEPARTMENT MR. VINOD TANWANI, SR. DR APPEARED AND M.A. NO. 254/AHD/2010 IN ITA NO. 2053/AHD/2006 A Y 2003-2 004 2 PLACED RELIANCE ON THE SUBMISSIONS MADE THROUGH THI S MISCELLANEOUS PETITION, RELEVANT PARAGRAPHS REPRODUCED BELOW. ( 3) THE FIRST GROUND WHICH WAS AGITATED BY THE DEPA RTMENT WAS REGARDING ADDITION OF RS. 48,64,783/- MADE ON ACCOU NT OF DISCREPANCIES FOUND BETWEEN RECEIPTS AS PER TDS CERTIFICATE AN TH E RECEIPTS SHOWN AS INCOME BY THE ASSESSEE IN RETURN OF INCOME. WHILE DECIDING THIS GROUND THE HONBLE TRIBUNAL RELIED UPON THE ADDITIONAL EVI DENCES FILED BY THE ASSESSEE AS MENTIONED IN PARA-7 OF THE APPELLATE OR DER I.E. ANNEXURE-1/1 AND ANNEXURE-1/2, ANNEXURE2/1, ANNEXURE-2/2, ANNEXU RE-3/1 AND ANNEXURE-3/2 AND ANNEXURE-4/1 AND ANNEXURE-4/2. IT IS FURTHER SUBMITTED THAT IN PARA-7.1 OF THE APPELLATE ORDER O F THE HONBLE TRIBUNAL HAS MENTIONED THAT IN VIEW OF AFORESAID DOCUMENTA RY EVIDENCE WHICH WAS FURNISHED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A) THREE WAS NO MISTAKE IN THE ORDER OF THE CIT(A). (4) IN THIS CONNECTION, IT IS RESPECTFULLY SUBMITTE D HERE THAT ABOVE OBSERVATIONS OF THE HONBLE TRIBUNAL THAT ADDITIONA L EVIDENCES IN THE FORM OF VARIOUS ANNEXURES MENTIONED ABOVE WHICH WER E FILED BEFORE THE TRIBUNAL AND THE CIT(A) WERE ALSO FILED BEFORE THE ASSESSING OFFICER ARE NOT CORRECT. ON GOING THROUGH ORDER OF THE CIT(A) IT IS NOTICED THAT ADDITIONAL EVIDENCES TOTALING TEN I.E. ANNEXURE NO. 1 TO ANNEXURE 10 WERE FILED BEFORE THE CIT(A) WHICH WERE NEVER FILED BEFO RE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS . ON PAGE-8 OF THE APPELLATE ORDER OF THE CIT(A) HAS MENTIONED IN PARA -4.2 THAT ASSESSEE WAS ASKED TO FILE COPY OF FINAL ACCOUNT ALONG WITH DETAILS OF ROAD WORK EXPENSES AND DETAILS WHERE THE WORK IN RESPECT OF T HIS MOBILIZATION ADVANCES WERE RECEIVED WAS STARTED. DETAILS OF OTH ER EVIDENCES CALLED FOR AND FILED BEFORE THE CIT(A) ARE ALSO MENTIONED IN P ARA-4.2 OF THE APPELLATE ORDER. M.A. NO. 254/AHD/2010 IN ITA NO. 2053/AHD/2006 A Y 2003-2 004 3 (5) IT IS BROUGHT TO YOUR KIND NOTICE THAT THERE AD DITIONAL EVIDENCES WERE ADMITTED BY THE CIT(A) IN GROSS VIOLATION OF PROVIS IONS OF RULE 46A OF THE IT RULES, 1962 WHICH CLEARLY PROVIDE THAT THE APPEL LANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE CIT(A) ANY EVIDENCE WHETHER ORAL OR DOCUMENTARY OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE ASSESSING OFFICER, EXCEPT IN EXCEPTIONAL CIRCUMSTANCES ONLY AS MENTIONED IN RULE 46(1) OF TH E I T RULE, 1962. IT IS FURTHER MENTIONED MENTIONED HERE THAT BEFORE ADMITT ING THE ADDITIONAL EVIDENCES THE CIT(A) SHOULD HAVE CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER WHICH WAS NOT CALLED FOR. UNDER THESE CIRCUMSTANCES THE HONBLE TRIBUNAL SHOULD HAVE SET-ASIDE THE ORDE R OF THE CIT(A) WITH THE DIRECTION TO EITHER CALLED REMAND REPORT FROM T HE ASSESSING OFFICER OR RESTORING THE MATTER BACK TO THE FILE OF THE ASSESS ING OFFICER TO READJUDICATE THE ISSUE AFTER TAKING INTO CONSIDERAT ION THE ADDITIONAL EVIDENCES FILED BEFORE THE CIT(A). 2. ON THE BASIS OF THE ABOVE SUBMISSIONS THE REVEN UE HAS CONTESTED THAT FIRST APPELLATE AUTHORITY HAS ENTERTAINED CERT AIN EVIDENCES WHICH WERE NOT BEFORE THE AO. THEREFORE, THE TRIBUNAL HAS ALS O COMMITTED AN ERROR BY PLACING RELIANCE ON THOSE EVIDENCES WHICH WERE E NTERTAINED BY INFRINGING THE PROVISIONS OF RULE 46(A) OF IT RULES . SINCE THE GRIEVANCE PERTAINING TO THE INFRINGEMENT OF RULE 46(A) WAS N OT CONSIDERED BY THE TRIBUNAL THEREFORE AN APPARENT MISTAKE WAS COMMITTE D. 3. ON THE OTHER HAND FROM SIDE OF THE RESPONDENT A SSESSEE MR. P.D. SHAH APPEARED AND SUPPORTED ORDER OF THE TRIBUNAL. HE HAS INFORMED THAT MERELY ON ASSUMPTION THE AO HAD MADE AN ADDITION AL THOUGH THE AMOUNT AS REFLECTED IN THE TDS CERTIFICATE WAS VERY MUCH D ISCLOSED TO AO. IT WAS EXPLAINED THAT THE MATERIAL WHICH WAS BEFORE THE AO WAS DULY CONSIDERED M.A. NO. 254/AHD/2010 IN ITA NO. 2053/AHD/2006 A Y 2003-2 004 4 BY CIT(A) WHICH WAS APPROVED BY THE TRIBUNAL. THE TRIBUNAL HAS THEREAFTER GIVEN A FINDING THAT THE ASSESSEE HAS ES TABLISHED THE FACTUM OF HAVING RECEIVED THE EXACT AMOUNT BY WAY OF DOCUMENT ARY EVIDENCES. THE TRIBUNAL HAS ALSO COMMENTED THAT THE METHOD OF CLAI MING THE TDS AND THE METHOD OF DISCLOSING THE REVENUE RECEIPTS WERE CONSISTENTLY FOLLOWED BY THE ASSESSEE IN THE PAST AND THE SAME SYSTEM WAS ADOPTED IN THE UNDER CONSIDERATION. THE TRIBUNAL HAS FURTHER COMMENTED THAT IN RESPECT OF THE SAID SYSTEM OF ACCOUNTING THE REVENUE HAS NOT RAISE D ANY OBJECTION. ON THAT GROUND THE TRIBUNAL HAS HELD THAT THERE WAS NO INFIRMITY IN THE ORDER CIT(A). 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES WE ARE OF THE CONSIDERED VIEW THAT THE REVENUE DEPARTMENT HAS NOT DEMONSTRATED THAT AN APPARENT MISTAKE WAS COMMITTED BY THE TRIBUNAL. AS FAR AS A GRIEVANCE OF INFRINGEMENT OF RULE 46(A) IS CONCERNED, THE SAM E ALSO APPEARS TO BE INCORRECT. THROUGH MISCELLANEOUS PETITION REVENUE DEPARTMENT HAS SUGGESTED THAT CIT(A) SHOULD HAVE CALLED FOR A REMA ND REPORT, BUT THAT SUPPOSITION OF THE REVENUE DEPARTMENT IS NEITHER BA SED ON SOME EVIDENCE NOR SUPPORTED BY ANY ESTABLISHED LAW. SPECIALLY, W HEN THE CIT(A) HAS PROCEEDED ON THE GROUND THAT THE SAME METHOD OF ACC OUNTING WAS ADOPTED BY THE ASSESSEE IN THE PAST AND THE SAME WAS FOLLOW ED FOR THE YEAR UNDER CONSIDERATION. RATHER THE LEARNED CIT(A) HAS REPRO DUCED THE BILL NOS, ADVANCE AMOUNT ADJUSTED AND THE FIGURES RELATED TO THE RESPECTIVE FINANCIAL YEARS. THE ADVANCES WERE FOUND TO BE ACC OUNTED FOR AS INCOME BY THE ASSESS RESPECTIVELY. FROM THE FACTS IT IS A LSO NOTED THAT ALTHOUGH THE ADVANCES WERE RECEIVED DURING THE ACCOUNTING PE RIOD UNDER CONSIDERATION BUT ON ACCRUAL BASIS AMOUNTS WERE UND ERTAKEN DURING RELEVANT YEARS AND THEREFORE THOSE RECEIPTS HAVE BE EN ACCOUNTED FOR IN THOSE YEARS ONLY. FROM THE ORDER OF THE TRIBUNAL I T APPEARS THAT THE RECORD M.A. NO. 254/AHD/2010 IN ITA NO. 2053/AHD/2006 A Y 2003-2 004 5 WHICH WAS AVAILABLE WAS DULY CONSIDERED AND FACTS M ENTIONED THEREIN WERE ADJUDICATED UPON. IN VIEW OF THIS WE HEREBY H OLD THAT THE REVENUE HAS FAILED TO DEMONSTRATE THAT THERE WAS AN APPAREN T ERROR WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF IT ACT. RESULTAN TLY WE HEREBY DISMISSED THIS PETITION OF THE REVENUE. 5. IN THE RESULT REVENUES MISCELLANEOUS PETITION IS HEREBY DISMISSED. SD/- SD/- (A.K.GARODIA) ( MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER A.KUMAR COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(APPEALS)- 4. THE CIT CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD