Nimisha Khadi Gramoudyog Mandal, Mehsana V. The ACIT., Mehsana Circle, Mehsana

MA 262/AHD/2010

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0113 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-12-2012
• Assessment Year: misc
• Appeal Filed On: 09-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Assessee Lawyers: P M PATEL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTAN T MEMBER NIMISHA KHADI GRAMODYOG MANDAL, AT & POST: JAMLA, TAL. KALOL DIST: MEHSANA PAN: AAATN4908N (APPELLANT) VS. ACIT MEHSANA CIRCLE, MEHSANA (RESPONDENT) REVENUE BY : SRI Y.P. VERMA, SR.D.R. ASSESSEE BY : SRI P.M. PATEL, A.R. DATE OF HEARING : 05-04-2013 DATE OF PRONOUNCEMENT : 12-04-2013 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS MISCELLANEOUS APPLICATION HAS ARISEN OUT OF T HE ORDER OF THIS TRIBUNAL IN IT(SS)A NO. 176/AHD/2005 DATED 09-10-20 09. M.A. NO. 262/AHD/201 0 (ARISING OUT OF I.T.(SS)A. NO. 176 /AHD/2005 ) BLOCK PERIOD 01-04-1989 TO 0 2-12-1999 M.A. NO.262/AHD/2010 A.Y. BLOCK PERIOD PAGE NO NIMISHA KHADI GRAMODYOG MANDAL VS. ACIT 2 2. THE M.A. FILED BY THE ASSESSEE READS AS UNDER:- IN THIS CASE, ORIGINAL AO WAS PASSED BY LEARNED AS SISTANT COMMISSIONER OF INCOME TAX MEHSANA U/S 158BD READ W ITH SEC. 143(3) DETERMINING THE TOTAL UNDISCLOSED INCOME OF RS. 2761500.00. BEING DISSATISFIED WITH THE SAID ORDER, THE ASSESSE E FILED FIRST APPEAL BEFORE RESPECTABLE COMMISSIONER OF INCOME TAX (A) X X, AHMEDABAD. THE LD. CIT(A) XX, AHMEDABAD PASSED ORDER DATED 29. 03.2005. THE LD. CIT(A) DELETED ADDITION OF RS. 2761500.00 AND A PPEAL WAS PARTLY ALLOWED. THE LD. AO PREFERRED THE SECOND APPEAL B EFORE HONABLE INCOME TAX APPELLATE TRIBUNAL BENCH B. THE HONB LE TRIBUNAL BENCH B DECIDED THE APPEAL OF THE REVENUE AND ORD ER TO SET ASIDE THE REVENUES APPEAL TO THE FILE OF A.O. THE SAID ORDER WAS PASSED ON 09.10.2009. IN THE SAID ORDER HONBLE TRIBUNAL REM ANDED THE CASE ON CERTAIN INCORRECT INFORMATION AND MADE THE FOLLOWIN G FACTUAL MISTAKES WHICH CAN BE RECTIFIED U/S 254(2) WHICH ARE AS FOLL OWS:- IN 3 RD PARAGRAPH OF PARA 3 OF HONBLE TRIBUNALS ORDER MI STAKES HAVE BEEN MADE AS FOLLOWS. 1. SUBSEQUENTLY DEPARTMENT REPRESENTATIVE TAKEN US TO SEIZED MATERIAL AS MARKED A/11 IN WHICH SUBSTANTIAL CASH R ECEIPTS ON VARIOUS DATES DURING THE YEARS 1997 AND 1998 ARE RECORDED B Y THE ASSESSEE. THE WORDS ARE RECORDED BY THE ASSESSSEE IS INCORREC T. IN FACT, THE ANNEXURE A/11 WAS FOUND FROM PREMISES OF SHRI NITIN BHAI K. PATEL. THE SAID ANNEXURE WAS WRITTEN BY SHRI NITINBHAI K. PATEL. THERE WAS NO QUESTION TO WRITE THE SAID ANNEXURE BY THE ASSES SEE. 2. FURTHER IN THE SAID PARA IN THE SEVENTH LINE IT IS MENTIONED THAT THOSE TRANSACTIONS ARE RECORDED AND PAID IN SUCH A DMITTED BY SHRI NITINBHAI K. PATEL. THE STATEMENT OF SHRI NITINBHAI K PATEL WAS RECORDE D ON OATH DATED 24.01.2000. THE COPY OF SAID STATEMENT IS AVAILABL E IN THE PAPER BOOKS OF THE RESPONDENT. ON PERUSAL OF SAID STATEM ENT YOUR HONOUR WOULD NOT FIND ANY WHERE IN THE STATEMENT WHICH ADM ITTED BY SHRI M.A. NO.262/AHD/2010 A.Y. BLOCK PERIOD PAGE NO NIMISHA KHADI GRAMODYOG MANDAL VS. ACIT 3 NITINBHAI THAT CASH PAYMENT HAS BEEN MADE TO THE AS SESSEE. THERE WAS NO QUESTION FOR ADMISSION. THE LEARNED AO INCO RRECTLY MENTIONED THAT CASH PAYMENT WAS MADE TO ASSESSEE. 3. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE NEVER AGREED TO SET ASIDE THE CASE FOR CROSS EXAMINATION OF SHRI NITINB HAI K. PATEL. THERE WAS NO QUESTION FOR ASSESSEE TO AGREE FOR SET ASIDE FOR THE FOLLOWING TWO REASONS. THE LD. CIT(A) ALLOWED GROUNDS OF ASSESSMENT OF RS. 27,61,500.00 IN FAVOUR OF THE ASSESSEE. IF ASSESSE ES DEMAND BECOMES NIL DUE TO ABOVE MENTIONED ORDER BY CIT(A), NO PRUDENT MAN WOULD AGREE FOR FRESH ASSESSMENT. WHILE SHRI NITINBHAI K PATEL NEVER ADMITTED IN STAT EMENT REGARDING CASH PAYMENT TO THE ASSESSEE, THERE WAS N O NEED TO EXAMINE OR CROSS EXAMINE OF SHRI NITINBHAI K PATEL. YOUR APPELLANT PRAYS TO RECTIFY THE ABOVE MISTAKE W HICH IS VERY VITAL AND THE APPEAL OF THE DEPARTMENT IS DESERVED TO BE DISMISSED. 3. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT ONLY CONTENTION RAISED BY THE LEARNED COUNSEL FOR T HE ASSESSEE IN THIS M.A. IS THAT AT THE TIME OF HEARING OF APPEAL LEARNED COUNS EL FOR THE ASSESSEE DID NOT AGREE TO SET ASIDE THE CASE TO THE FILE OF A.O. WHI CH APPEARS TO BE CORRECT IN THE LIGHT OF THE FACT THAT IN THIS CASE LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE AND REVENUE WAS IN APPEAL AGAINST THAT ORD ER, THEREFORE, THERE WAS NO QUESTION OF ASSESSEE AGREEING FOR FRESH ASSESSME NT. THIS BEING MISTAKE APPARENT FROM RECORD, WE ARE INCLINED TO RECALL OUR ORDER DATED 09-10-2009. REGISTRY IS DIRECTED TO FIX THE CASE FOR HEARING IN THE REGULAR COURSE. M.A. NO.262/AHD/2010 A.Y. BLOCK PERIOD PAGE NO NIMISHA KHADI GRAMODYOG MANDAL VS. ACIT 4 4. IN THE RESULT, ASSESSEES M.A. IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (A.MOHAN ALANKAMONY) (D.K.TYAGI) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD : DATED 12 /04/2013 AK / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# STRENGTHENED PREPARATION & DELIVERY OF ORDERS IN TH E ITAT 1) DATE OF TAKING DICTATION 05-04-2013 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE N.A. 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 08-04-2013 4) DATE OF CORRECTION 09-04-2013 5) DATE OF FURTHER CORRECTION XXXX 6) DATE OF INITIAL SIGN BY MEMBERS 10-04-2013 7) ORDER UPLOADED ON 12-04-2013 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) ORDER SENT TO BENCH CLERK 12-04-2013