The ITO, Ward-12(3),, Ahmedabad v. Shri Narendrakumar Ambalal Patel, Ahmedabad

ITA 2373/AHD/2009 | 2006-2007
Pronouncement Date: 16-11-2011 | Result: Allowed

Appeal Details

RSA Number 237320514 RSA 2009
Assessee PAN AACCA8533B
Bench Ahmedabad
Appeal Number ITA 2373/AHD/2009
Duration Of Justice 2 year(s) 3 month(s) 6 day(s)
Appellant The ITO, Ward-12(3),, Ahmedabad
Respondent Shri Narendrakumar Ambalal Patel, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 16-11-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 16-11-2011
Date Of Final Hearing 13-10-2011
Next Hearing Date 13-10-2011
Assessment Year 2006-2007
Appeal Filed On 10-08-2009
Judgment Text
. .. . . .. . ! ! ! ! ' '' '# ## # $ $ $ $. .. .% %% % . .. .& & & & ' ' ' ' % ! % ! % ! % ! IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI G.D. AGRAWAL V.P. & HONB LE SHRI T.K. SHARMA J.M.) # ## #. ITA NO. 2373/AHD./2009 : ()- 2006-07 THE I.T.O. WARD-12(3) AHMEDABAD -VS- SHRI NARENDRAKUMAR AMBALAL PATEL ( - /APPELLANT) (PAN : AAC CA 8533B) ( ./ - /RESPONDENT ) 01 2 3 % / ASSESSEE BY : NONE ' 2 3 % / DEPARTMENT BY : SHRI SAMIR TEKRIWAL A.R. 45 2 16 / DATE OF HEARING : 13/10/2011 78( 2 16 / DATE OF PRONOUNCEMENT : 16/11/2011 %& %& %& %& / ORDER PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS AGAINST THE OR DER DATED 10-06-2009 OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-XX AHM EDABAD FOR THE ASSESSMENT YEAR 2006-2007. 2. ON THE LAST DATE OF HEARING I.E. 18.07.2011 THI S CASE WAS ADJOURNED FOR 13.10.2011. ON THE ADJOURNED DATE OF HEARING I.E. 1 3.10.2011 NEITHER ANYBODY APPEARED FROM THE SIDE OF THE ASSESSEE NOR APPLICAT ION FOR ADJOURNMENT IS RECEIVED. WE THEREFORE PROCEED TO DECIDE THIS APPEAL ON TH E BASIS OF SUBMISSIONS MADE BY THE LD. D.R. AND THE MATERIALS AVAILABLE ON RECORD. 3. VARIOUS GROUNDS RAISED IN THIS APPEAL ARE AS UND ER: 1. THE LD. CIT(A)-XX AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.57 08 114/- MADE BY THE AO ON AC COUNT OF UNEXPLAINED CREDITS U/S. 68 OF THE L.T. ACT 1961 WITHOUT PROP ERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE AO ITA NO. 2373-AHD-09 2 1.2 IN DOING SO THE LD. CIT(A)-XX AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ONUS WHICH LAY UPON TH E ASSESSES OF ESTABLISHING THE CREDITWORTHINESS OF THE CREDITORS AND THE GENUI NENESS OF THE TRANSACTIONS COULD NOT BE DISCHARGED BY THE ASSESSES BEFORE THE AO. 1.3 IN DOING SO THE LD. CIT(A)-XX AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSES IN VIOLATION OF RULE 46A OF I.T. RULES WITHOUT CALLING FOR ANY REMAND R EPORT AND WITHOUT GIVING ANY OPPORTUNITY TO THE AO TO EXAMINE THE NEW EVIDENCES PRODUCED BEFORE THE CIT(A) 2. THE LD C1T(A)-XX AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1 07 226/- ON ACCOUNT OF DISALLO WANCE OF INTEREST ON DEPOSITS ADDED U/S. 68 OF THE ACT WITHOUT PROPERLY APPRECIA TING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE AO. 3. THE LD. CIT(A)-XX AHMEDABAD HAS ERRED IN LAW A ND ON FACTS IN DELETING THE ADDITION OF RS.41 235/- BY THE AO OUT OF THE IN TEREST PAID U/S. 36(L)(III) OF THE ACT WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE AO. 3.2 IN DOING SO THE LD. CIT(A)-XX AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THERE WAS NO COMMERCIAL EX PEDIENCY INVOLVED WHILE GIVING INTEREST FREE ADVANCES OF RS.42 46 092/- BY THE ASSESSEE AND THEREFORE THE SAID DISALLOWANCE OUT OF INTEREST PAID ON PROPO RTIONATE BASIS WAS RIGHTLY MADE BY THE AO. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 5. IT IS THEREFORE PRAYED THAT THE ORDER OF THE CIT(A) BE SET ASIDE AND THAT OF A.O. BE RESTORED TO THE ABOVE EXTENT. 4. AT THE TIME OF HEARING BEFORE US SHRI SAMIR TEK RIWAL SR.D.R. APPEARED ON BEHALF OF THE REVENUE AND POINTED OUT THAT IN THE A SSESSMENT ORDER THE AO MADE THE FOLLOWING THREE ADDITIONS: I) CREDITS IN THE NAME OF DIFFERENT PERSONS U/S. 68 RS.57 08 114/- II) INTEREST ON DEPOSITS ADDED U/S.68 RS. 1 0 7 226/- III) UNDER SECTION 36(1)(III) RS. 41 235/ - 5. BEFORE THE LD. CIT(A) THE ASSESSEE MADE AN APPL ICATION UNDER SECTION 250 R.W.S. 46A OF I.T. RULES 1961 FOR ADDITION OF ADDI TIONAL/FRESH EVIDENCES WHICH ITA NO. 2373-AHD-09 3 ACCORDING TO ASSESSEE COULD NOT BE COLLECTED AND S UBMITTED BEFORE THE AO DUE TO SHORTAGE OF TIME. IN RESPECT OF THE THREE ADDITIONS IN THE IMPUGNED ORDER THE LD. CIT(A) ADMITTED THE FRESH EVIDENCE WITHOUT CALLING REMAND REPORT OR CONFRONTING THE SAME WITH THE AO. THE LD. D.R. POINTED OUT THAT THI S IS EVIDENT FROM PARA 3 OF THE IMPUGNED ORDER WHICH READS AS UNDER: 3. THE APPELLANT HAS MADE AN APPLICATION U/S.250 R.W.R. 46A FOR ADMISSION OF ADDITIONAL / FRESH EVIDENCES WHICH COULD NOT BE COL LECTED AND SUBMITTED BEFORE THE A.O. DUE TO SHORTAGE OF TIME. I HAVE PERUSED TH E APPLICATION OF THE APPELLANT AND ASSESSMENT ORDER PASSED BY THE A.O. T HE A.O. HAS ISSUED NOTICE ON 11.11.2008 U/S.142(1) CALLING DETAILS AND FINALI ZED ASSESSMENT ORDER ON 29.12.2008 WHICH PROVES THAT THE A.O. HAS NOT GIVEN SUFFICIENT OPPORTUNITY AND TIME TO FURNISH THE EVIDENCES. I ADMIT THE ADDITION AL/FRESH EVIDENCES PRODUCED BEFORE ME. 5.1 THE LD. D.R. POINTED OUT THAT SINCE IN RESPECT OF ALL THE THREE ADDITIONS/GROUNDS THE LD. CIT(A) ADMITTED FRESH EVIDENCES WITHOUT AFF ORDING OPPORTUNITY OF BEING HEARD TO THE AO THEREFORE THE ORDER OF THE LD. CIT(A) B E SET ASIDE AND HE BE DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH AFTER CAL LING REMAND REPORT/CONFRONTING THE SAME TO THE AO AS PER THE PROVISIONS CONTAINED IN RULE 46A OF I.T. RULES 1961. 6. AFTER HEARING THE LD. D.R. WE HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. FROM THE PERUSAL OF PARA 3 OF TH E IMPUGNED ORDER IT IS ABUNDANTLY CLEAR THAT IN RESPECT OF THREE ADDITIONS/GROUNDS T HE LD. CIT(A) ADMITTED FRESH EVIDENCES WITHOUT CALLING FOR THE REMAND REPORT OR CONFRONTING THE SAME TO THE AO. WE THEREFORE SET ASIDE THE IMPUGNED ORDER OF THE CIT(A) WITH THE DIRECTION THAT THE LD. CIT(A) WILL CALL FOR THE REMAND REPORT ALLOW A N OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND RE-DECIDE THE APPEAL OF THE ASSESSEE A FRESH IN ACCORDANCE WITH LAW. 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. 9 %& 2 78( :#) 16/11 /2011 8 ; 2 <5 = THIS ORDER PRONOUNCED IN THE OPEN COURT ON 16/11/2011. SD/- SD/- (G.D.AGRAWAL) (T.K. SHARMA) VICE PRESIDENT JUDICIAL MEMBER DATED : 16/11/2011 ITA NO. 2373-AHD-09 4 %& %& %& %& 2 22 2 .1> .1> .1> .1> %>(1) %>(1) %>(1) %>(1)- -- - 1. - 2. ./ - 3. ## 1 4B 4. 4B- - 5. >E< .1 = 6. < G9 %& % / # = TALUKDAR/ SR. P.S.