The ACIT, Gandhidham Circle, GANDHIDHAM V. M/s Agrawal Riders Pvt. Ltd., GANDHIDHAM

MA 3/RJT/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6261 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-02-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-12-2010
• Assessment Year: misc
• Appeal Filed On: 21-12-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: I VIJAYKUMAR
• Assessee Lawyers: M P SARDA
• Keywords: Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) M.A. NO.03/RJT/2010 (ARISING OUT OF I.T.S.S.A. NOS.42 & 52/RJT/2004) (BLOCK PERIOD 96-97 TO 06-02-2002) THE DY.CIT,GANDHIDHAM CIRCLE VS AGGRAWAL RIDERS PV T LTD GANDHIDHAM AGRAWAL HOUSE, PLOT NO.324 WARD 12A, GANDHIDHAM PAN : AABCA8083F (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI I VIJAY KUMAR RESPONDENT BY : SHRI MP SARDA O R D E R PER N.R.S. GANESAN, JM THE REVENUE HAS FILED THE MISCELLANEOUS PETITION O N THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL DATED 06-0 3-2009. 2. SHRI I VIJAY KUMAR, THE LEARNED DEPARTMENTAL REP RESENTATIVE SUBMITTED THAT THIS TRIBUNAL WAS CALLED UPON TO DECIDE TWO ISSUES IN BOTH THE ASSESSEES AND REVENUES APPEALS. THE FIRST ISSUE IS REGARDING TH E ADDITION OF RS.11,01,235 AND THE SECOND ISSUE IS LEVY OF SURCHARGE ON THE UNDISC LOSED INCOME. REFERRING TO THE ORDER OF THIS TRIBUNAL MORE PARTICULARLY AT PAR AGRAPH 8, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THIS TRI BUNAL CAME TO THE CONCLUSION THAT IT HAS NO REASON TO INTERFERE WITH THE ORDER O F CIT(A). ACCORDINGLY THE ORDER OF THE CIT(A) WAS UPHELD IN RESPECT OF THE ISSUE RE LATING TO ADDITION OF RS.11,01,235. THEREFORE, THE ASSESSEES APPEAL AS WELL AS THE REVENUES APPEAL SHOULD HAVE BEEN DISMISSED ON THIS ISSUE. HOWEVER, BY MISTAKE, THIS TRIBUNAL MENTIONED THAT THE REVENUES APPEAL IS DISMISSED AN D THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS IS ONLY AN ERROR WHICH N EEDS TO BE RECTIFIED. MA NO.03/RJT/2010 2 3. REFERRING TO LEVY OF SURCHARGE, THE LEARNED DEPA RTMENTAL REPRESENTATIVE SUBMITTED THAT THIS TRIBUNAL FOLLOWED THE JUDGMENT OF THE APEX COURT IN SURESH N GUPTA 297 ITR 322 AND ALLOWED THE GROUND RAISED BY THE ASSESSEE. HOWEVER, IT HAS NOT DISCUSSED ANYTHING AND SIMPLY SAID THE GRO UND TAKEN BY THE REVENUE IS ALLOWED. THEREFORE, IT NEEDS TO BE EXPLAINED IN T HE ORDER. 4. WE HEARD SHRI MP SARDA, THE LEARNED REPRESENTATI VE OF THE ASSESSEE ALSO. THE LEARNED REPRESENTATIVE OF THE ASSESSEE SUBMITTE D THAT THIS TRIBUNAL EXAMINED THE ISSUE AND FOUND THAT THE ASSESSEES AP PEAL NEEDS TO BE ALLOWED. ACCORDINGLY IT WAS ALLOWED. THE REVENUE APPEAL WAS PARTLY ALLOWED. WITH REGARD TO LEVY OF SURCHARGE, THE APEX COURT WAS AGAINST TH E ASSESSEE. THEREFORE, THERE IS NO ERROR WHICH NEEDS TO BE RECTIFIED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE. WE HAVE ALSO GONE THROUGH THE ORDER OF THIS TRIBUNAL DATED 06-03 -2009. AS RIGHTLY SUBMITTED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE THE COMM ON ISSUE WHICH AROSE FOR CONSIDERATION IN BOTH THE ASSESSEES AND REVENUES APPEAL IS ADDITION OF RS.11,01,235. THIS TRIBUNAL, AFTER DETAILED EXAMIN ATION FOUND THAT THERE WAS NO REASON TO INTERFERE WITH THE ORDER OF THE CIT(A). 6. THIS TRIBUNAL EXAMINED THE ISSUE AT PARAGRAPH 7 OF ITS ORDER AND FOUND THAT THE STOCK OF RS.11,01,235 WAS FOUND DURING THE COURSE OF SURVEY OPERATION. THEREFORE, THERE CANNOT BE ANY ASSESSMENT U/S 158BC OF THE ACT IN THE ABSENCE OF SEARCH. ACCORDINGLY THIS TRIBUNAL FOUND THAT TH E ASSESSING OFFICER HAD NO JURISDICTION TO MAKE BLOCK ASSESSMENT AND UPHELD TH E CONTENTION OF THE ASSESSEE. IN VIEW OF THE FINDINGS RECORDED BY THIS TRIBUNAL AT PARAGRAPH 7 THE ASSESSEES APPEAL NEEDS TO BE ALLOWED AND THE REVEN UES APPEAL NEEDS TO BE DISMISSED AS FAR AS THE LEVY OF RS.11,01,235 IS CON CERNED. THEREFORE, WE FIND NO ERROR IN THE ORDER OF THE TRIBUNAL. MA NO.03/RJT/2010 3 7. COMING TO THE LEVY OF SURCHARGE, THE SUPREME COU RT IN THE CASE OF SURESH N GUPTA 297 ITR 322 (SC) FOUND THAT SURCHARGE CAN B E LEVIED EVEN IN RESPECT OF CASES WHERE SEARCH WAS CONDUCTED BEFORE THE AMENDME NT TO SECTION 113. THEREFORE, WE DO NOT FIND ANY ERROR IN THE ORDER OF THIS TRIBUNAL IN FOLLOWING THE JUDGMENT OF THE APEX COURT. 8. WE FIND THAT THE ASSESSEE HAS RAISED ONE MORE IS SUE WITH REGARD TO LEVY OF INTEREST U/S 158BFA(1). THE REVENUE HAS RAISED THE ISSUE IN THE MISCELLANEOUS PETITION THAT THIS GROUND WAS NOT ADJ UDICATED BY THIS TRIBUNAL. EVEN THOUGH THE REVENUE RAISED THIS ISSUE IN THE MI SCELLANEOUS PETITION NO ARGUMENT WAS ADVANCED ON MERIT DURING THE HEARING O F MISCELLANEOUS PETITION. HOWEVER, THE FACT REMAINS THAT THE ASSESSEE HAS RAI SED THE ISSUE AS GROUND NO.2 BEFORE THIS TRIBUNAL IN THE ORIGINAL APPEAL. THEREFORE, THIS TRIBUNAL IS EXPECTED TO DISPOSE OFF THIS GROUND. SINCE THAT GR OUND WAS NOT DISPOSED OFF, IN OUR OPINION, TO THAT EXTENT THERE IS AN ERROR IN TH E ORDER OF THIS TRIBUNAL. ACCORDINGLY WE DIRECT THE REGISTRY TO RE-POST APPEA L IN ITSS NO.42/RJT/2004 ONLY FOR DISPOSAL OF GROUND NO.2 RAISED BY THE ASSESSEE. WE MAKE IT CLEAR THAT OTHER PART OF THE ORDER OF THE TRIBUNAL SHALL REMAIN AS S UCH. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-02-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 25 TH FEBRUARY, 2011 PK/- MA NO.03/RJT/2010 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-IV, AHMEDABAD 4. THE CIT, CENTRAL-II, AHMEDABAD 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT