The ITO, Ward-3(2), Ahmedabad V. Shri Yogesh Kirchand Shah, Ahmedabad

MA 68/AHD/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3131 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-07-2015
• Assessment Year: misc
• Appeal Filed On: 05-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C MISHRA
• Keywords: Unexplained investment; Block assessment

Judgement Text

M.A. 68/AHD/2014 IN I.T(SS).A. NO.:06/AHD/2009 ASSESSMENT YEAR:1.4.92 TO 25.5.01 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND RAJPAL YADAV JM] M.A. NO.68/AHD/2014 ARISING OUT OF I.T.(SS)A. NO.:06/AHD/2009 ASSESSMENT YEAR: 1.4.92 TO 25.5.2001 INCOME TAX OFFICER, WARD -3(2),, B-102, PRATYAKSHYAKAR BHAVAN, PANJARAPOLE, AMBAWADI, AHMEDABAD ....................APPELLANT VS. SHRI YOGESH KIRCHAND SHAH, 14-B, STHANKWASI JAIN SOCIETY, NAVRANGPURA, AHMEDABAD . .RESPONDENT PAN AEDPS 4653L APPEARANCES BY: D.C. MISHRA, SR.D.R. FOR THE APPELLANT SMT. ARTI N. SHAH F OR THE RESPONDENT DATE OF CONCLUDING THE HEARING: 17.7.2015 DATE OF PRONOUNCING THE ORDER: JULY 20, 2015 O R D E R PER PRAMOD KUMAR, AM: BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSE SSING OFFICER HAS POINTED OUT THE FOLLOWING MISTAKES APPARENT FROM RE CORD ALLEGED TO HAVE BEEN CREPT IN IN THE ORDER DATED 14 TH DECEMBER, 2012 PASSED BY THE TRIBUNAL :- 5. IN VIEW OF THE ABOVE FINDINGS IT IS NECESSARY TO CLARIFY THE FOLLOWING ISSUES :- I) WHETHER THE ORDER AO IS CONFIRMED OR NOT FOR THE ADDITION OF RS.25,00,000/- IN RESPECT OF UNEXPLAINED INVESTMENT IN REAL ESTATE. M.A. 68/AHD/2014 IN I.T(SS).A. NO.:06/AHD/2009 ASSESSMENT YEAR:1.4.92 TO 25.5.01 PAGE 2 OF 3 II) WHETHER THE HONBLE ITAT CONFIRMED THE DECISION OF LD. CIT(A) BY RESTRICTING THE ADDITION OF RS.13,35,017/- AND THUS ALLOWING RELIEF OF RS.1,64,983/-. III) WHETHER THE HONBLE ITAT HAS ALLOWED THE APPEA L OF THE ASSESSEE FOR CONFIRMING THE ADDITION OF RS.13,35,017/-. PRAYER 1. THE HONBLE ITAT MAY CONSIDER THE APPLICABLE U/S 254(2) OF THE ACT. 2. THE HONBLE ITAT MAY RECALL THE ORDER PASSED ON 14/12/2012 AND RECTIFY THE SAME AS STATED ABOVE. 2. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER POINTS OUT THAT THIS VERY ISSUE HAS BEEN ADMITTED FOR ADJUDICATION BY HONBLE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 18 TH JULY, 2013, IN TAX APPEAL NO. 642 OF 2013, WHEREIN THEIR LORDSHIPS INTER ALIA HAS OBSERVED AS UNDER :- THE PRESENT TAX APPEAL IS ADMITTED FOR CONSIDERATI ON OF THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW:- (A) WHETHER THE APPELLATE TRIBUNAL IS RIGHT IN LAW AND ON FACTS IN DELETING RS.44.82 LAKHS OUT OF R.50 LAKHS ADDED ON ACCOUNT O F UNDISCLOSED PROFIT IN SHARE TRADING AND SPECULATION ON THE GROUND THAT IN BLOCK ASSESSMENT, NO ADDITION ON THE BASIS OF ESTIMATION CAN BE MADE AND ALSO THE FACT THAT THE ASSESSEE HAD IN THE STATEMENT RECORDED ON OATH ADMI TTED THE ABOVE INCOME AS UNDISCLOSED? (B) WHETHER THE APPELLATE TRIBUNAL IS RIGHT IN LAW AND ON FACTS IN CONFIRMING THE ORDERS OF BOTH THE ASSESSING OFFICER AND THE CIT(A) ON THE ISSUE OF ADDITION OF RS.15,00,000/- MADE ON ACCOUNT OF UNACCOUNTED INVESTMENT IN REAL ESTATE AND CONSTRUCTION ACTIVITY WHEN THE CIT(A) PARTLY ALLOWED THE APPEAL ON THIS ISSUE? (C) WHETHER THE APPELLATE TRIBUNAL IS RIGHT IN LAW AND ON FACTS IN RESTRICTING THE ADDITION TO RS.6,68,448/- AS AGAINS T ADDITION MADE BY THE ASSESSING OFFICER AT RS.15 LAKHS ON ACCOUNT OF UNAC COUNTED INVESTMENT/EXPENSES IN RESIDENTIAL BUNGALOW ? (D) WHETHER THE APPELLATE TRIBUNAL IS RIGHT IN LA W AND ON FACTS IN DELETING THE ADDITION OF RS.52.83 LAKHS MADE ON ACCOUNT OF U NDISCLOSED PROFIT FROM JOB CHARGES FROM SILVER BUSINESS ON THE GROUND THAT IN BLOCK ASSESSMENT NO ADDITION ON THE BASIS OF ESTIMATION CAN BE MADE AND ALSO THE FACT THAT THE ASSESSEE HAD IN THE STATEMENT RECORDED ON OATH ADMI TTED TO DEALINGS OUTSIDE BOOKS OF ACCOUNTS? M.A. 68/AHD/2014 IN I.T(SS).A. NO.:06/AHD/2009 ASSESSMENT YEAR:1.4.92 TO 25.5.01 PAGE 3 OF 3 3. IT IS SUBMITTED THAT AS HONBLE JURISDICTIONAL H IGH COURT IS IN SEIZURE OF THE ABOVE ISSUE ON MERITS, IT IS NOT JUSTIFIABLE TH AT THE SAME ISSUE SHOULD AGAIN BE CONSIDERED BY THE TRIBUNAL WHILE EXERCISIN G POWER UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961. ANYWAY, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ISSUE WHICH IS SOUGHT TO BE RAIS ED IS PRECISELY BEFORE THEIR LORDSHIPS. 4. THE LD. DR, HOWEVER, RELIED UPON THE MISCELLANEO US APPLICATION. 5. WE HAVE NOTED THAT WHAT IS BEING SOUGHT TO BE TH E SUBJECT MATTER OF THIS RECTIFICATION IS, AS THE LD. COUNSEL FOR THE A SSESSEE RIGHTLY POINTED OUT, BEFORE HONBLE JURISDICTIONAL HIGH COURT FOR ADJUDI CATION ON MERITS. IN VIEW OF THE CIRCUMSTANCES, IT WOULD NOT BE APPROPRIATE FOR US TO EXERCISE THE POWERS U/S 254(2), IN THE PROCEEDINGS WHEN THE ISSUE IS B EFORE THE HIGHER APPELLATE AUTHORITY. IN THIS VIEW OF THE MATTER, WE SEE NO ME RIT IN THE RECTIFICATION APPLICATION. WE ACCORDINGLY DISMISS THE SAME. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSING OFFICER IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON 20 TH DAY OF JULY, 2015. SD/- SD/- (RAJPAL YADAV) PRAMOD KUMAR (JUDICIAL MEMBER) (AC COUNTANT MEMBER) AHMEDABAD, THE 20 TH DAY OF JULY, 2015 COPIES TO: (1) THE APPELLANT (2) THE RESPON DENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD