The ITO, Ward-6(4),, Ahmedabad v. Shri Arunbhai A.Patel, Ahmedabad

IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HON' BLE SHRI A.N.PAHUJA A.M. ) I.T.A. NO. 1433 & 1434/AHD./2008 ASSESSMENT YEAR : 2002-2003 I.T.O. WARD-6(4) AHMEDABAD -VS.- SHRI ARUNBHAI A. PATEL AHMEDABAD (PAN : ACTPP 8561G) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIL KUMAR SR. D.R. RESPONDENT BY : NONE O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : BOTH THESE APPEALS FILED BY THE REVENUE WERE FIXED FOR HEARING FOR TODAY I.E. ON 28.02.2011. DESPITE THE SERVICE OF NOTICE BY THE AS SESSING OFFICER THROUGH AFFIXTURE NEITHER ANYBODY APPEARED FROM THE SIDE OF THE ASSESSEE NOR ANY APPLICATION FOR ADJOURNMENT WAS RECEIVED. THE ORIGINAL ACKNOWLEDGEMENT AND THE PANC HNAMA EVIDENCING THE SERVICE OF NOTICE OF HEARING ARE PLACED ON RECORD. IN VIEW OF THIS WE P ROCEED TO DECIDE BOTH THESE APPEALS ON THE BASIS OF SUBMISSIONS MADE BY THE LD. D.R. AND THE M ATERIALS AVAILABLE ON RECORD. I.T.A. NO. 1433/AHD./2008 2. THIS APPEAL IS AGAINST THE ORDER DATED 06.02.200 8 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XI AHMEDABAD FOR THE ASSESSME NT YEAR 2002-03. 3. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REV ENUE IS AS UNDER: THE LD. COMMISSIONER OF INCOME TAX (A)-XI AHMEDABA D HAS ERRED IN LAW AND ON FACTS IN REDUCING THE ADDITION MADE ON ACCOUNT OF GROSS PROFIT FROM RS.23 82 095/- TO RS.2 00 000/-. 4. SHRI ANIL KUMAR SR. D.R. APPEARED ON BEHALF OF THE REVENUE AND DREW OUR ATTENTION TO VARIOUS NOTICES ISSUED BY THE ASSESSING OFFICER AS MENTIONED IN PARA 2 OF PAGE 2 OF THE ASSESSMENT ORDER. BEFORE THE ASSESSING OFFICER THE ASSESSEE HAS NOT PRODUCED THE BOOKS OF 2 ITA NO. 1433&34-AHD-2008 ACCOUNTS PURCHASE AND SALE BILLS AND VOUCHER FOR E XPENSES. IN THESE CIRCUMSTANCES THE ASSESSING OFFICER REJECTED THE BOOKS OF ACCOUNTS AND MADE G.P . ADDITION OF RS.23 82 095/-. THE LD. D.R. POINTED OUT THAT POWER OF LEARNED COMMISSIONER OF I NCOME TAX(APPEALS) IS CO-TERMINUS WITH THAT OF THE ASSESSING OFFICER AS HELD BY THE HON'BL E SUPREME COURT IN THE CASE OF CIT-VS- KANPUR COAL SYNDICATE [1964] 53 ITR 225 (SC). HE PO INTED OUT THAT IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DELETED THE ADDITION WITHOUT VERIFYING THE BOOKS OF ACCOUNTS. HE ACCORDINGLY SUBMITTED THAT THE ORDE R OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE SET ASIDE AND HE BE DIRECTED TO ASK THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNTS AND THEREAFTER READJUDICATE THE G.P. ADDIT ION TO THE EXTENT OF RS.21 82 095/- DELETED BY HIM IN THE IMPUGNED ORDER. 5. AFTER HEARING THE LD. D.R. WE HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT DESPITE THE AMP LE OPPORTUNITY ALLOWED TO THE ASSESSEE BOOKS OF ACCOUNTS WERE NOT PRODUCED BEFORE THE ASSESSING OFF ICER AND IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WITHOUT ASKING THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNTS REDUCED THE GP ADDITION TO RS.2 LAKHS. AD MITTEDLY THE POWERS OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ARE CO-TERMINUS WITH THAT OF THE ASSESSING OFFICER AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF KA NPUR COAL SYNDICATE ( SUPRA ) AS PER THIS JUDGEMENT THE FIRST APPELLATE AUTHORITY HAS PLENAR Y POWERS IN DISPOSING OF AN APPEAL. THE SCOPE OF HIS POWER IS CO-TERMINUS WITH THAT OF THE ASSESS ING OFFICER. HE CAN DO WHAT THE ASSESSING OFFICER CAN DO AND ALSO DIRECT HIM TO DO WHAT HE HA S FAILED TO DO. KEEPING IN VIEW THE RATIO OF THIS DECISION WE SET ASIDE THE ORDER OF THE LEARNE D COMMISSIONER OF INCOME TAX(APPEALS) AND DIRECT HIM TO DECIDE THE APPEAL OF THE ASSESSEE AFR ESH AFTER CALLING THE BOOKS OF ACCOUNTS AND VOUCHERS VERIFY THE SAME AND READJUDICATE THE ADDI TION AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. IN THE RESULT FOR STATISTICAL P URPOSES THIS APPEAL OF THE REVENUE IS TREATED AS ALLOWED. I.T.A. NO. 1434/AHD./2008 6. THIS APPEAL IS AGAINST THE ORDER DATED 07.02.200 8 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XI AHMEDABAD CANCELLING THE P ENALTY OF RS.7 29 000/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) FOR THE A SSESSMENT YEAR 2002-03. 3 ITA NO. 1433&34-AHD-2008 7. WE HAVE HEARD BOTH THE SIDES. IN THE IMPUGNED OR DER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) CANCELLED THE PENALTY ON THE GR OUND THAT IN THE QUANTUM APPEAL THE G.P. ADDITION HAS BEEN REDUCED TO RS. 2 LAKHS. IN THE RE VENUES APPEAL THE QUANTUM ADDITION DELETED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER VIDE OUR ORDER DATED 28.02.11 IN ITA NO.1434/AHD./08 ( SUPRA ). IN VIEW OF THIS THE IMPUGNED ORDER OF THE LEARNED COMMISSIONE R OF INCOME TAX(APPEALS) CANCELLING THE PENALTY UNDER SECTION 271(1)(C) IS ALSO SET ASIDE A ND HE IS DIRECTED TO RE-DECIDE THIS APPEAL OF THE ASSESSEE AFRESH AFTER DECIDING THE G.P. ADDITION I N THE QUANTUM APPEAL WHICH HAS BEEN SET ASIDE BY US ( SUPRA ). IN THE RESULT FOR STATISTICAL PURPOSES THIS AP PEAL OF THE REVENUE IS ALSO TREATED AS ALLOWED. 8. IN THE RESULT FOR STATISTICAL PURPOSES BOTH TH E APPEALS FILED BY THE REVENUE ARE TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28-02- 2011. SD/- SD/- (A.N.PAHUJA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28/ 02 / 2011 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 REGI STRAR ITAT AHMEDABAD TALUKDAR/SR.P.S.