M/s Kothari Constructions, Hyderabad v. DCIT, Hyderabad

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A HYDERABAD BEFORE SHRI G.C. GUPTA V.P AND SHRI CHANDRA POOJ ARI AM ITA NOS. 1745/H/08 24/HYD/09 40 TO 43/HYD/09 ASSESSMENT YEARS - 1988-89 TO 19 93-94 KOTHARI CONSTRUCTIONS HYDERABAD. (PAN: AAEFK4889R ) V/S DCIT CIR-5(1) HYDERABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. VASANT KUMAR RESPONDENT BY : SHRI K.V.N. CHARYA O R D E R PER G.C. GUPTA VICE PRESIDENT: THESE SIX APPEALS BY THE ASSESSEE FOR THE ASSESSMENT YEARS 198 8- 89 TO 1993-94 ARE DIRECTED AGAINST SEPARATE ORDERS OF C IT (A) HYDERABAD. SINCE IDENTICAL ISSUE INVOLVED IN ALL THESE A PPEALS THESE ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ALL THESE APPEALS OF THE ASSESSEE CENTERS AROUND THE ISSUE OF ADDITION ON ACCOUNT OF UNPROVED CAPITAL CONTRIBUTION BY THE PARTNERS AND THE UNPROVED CREDIT ENTRIES AND ADVANCES FROM CUSTOMERS. HE SUBMITTED THAT T HE ASSESSEE HAS FILED NECESSARY EVIDENCE BEFORE COMPLETION OF THE ASSESSM ENT PROCEEDINGS BEFORE THE ASSESSING OFFICER BUT THE ASSESSING O FFICER DID NOT ACCEPT THE SAME ACROSS THE TABLE FOR NO VALID REASON. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS LEFT WITH NO . 2 OTHER ALTERNATIVE BUT TO FILE THE DOCUMENTARY EVIDEN CE RELATED TO CREDIT ENTRIES AT THE 'COUNTER' OF THE ASSESSING OFFICER AND OBT AINED THE ACKNOWLEDGMENT WITH STAMP DATED 30-3-2001 ON THE OFF ICE COPY OF THE ASSESSEE. HE SUBMITTED THAT THE PHOTO COPY OF THE SAME IS F ILED IN THE COMPILATION AT PAGE-31 ONWARDS BEFORE THE TRIBUNAL. HE SUBMITTED THAT THESE FACTS WERE MENTIONED BEFORE THE CIT (A) IN STATEMENT OF FACTS AS WELL AS IN THE WRITTEN SUBMISSIONS FILED BEFORE THE CIT (A) BUT THE CIT (A) FAILED TO TAKE COGNIZANCE OF THE SAME. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE AND SUBMI TTED THAT SUFFICIENT OPPORTUNITY WAS PROVIDED TO THE ASSESSEE TO PR ODUCE EVIDENCE IN SUPPORT OF THE CASE OF THE ASSESSEE AND THE ASSESSMENT WAS F RAMED BY THE ASSESSING OFFICER ON 30-3-2001 AND THAT NO DOCUMEN TS WERE FILED BY THE ASSESSEE ACROSS THE TABLE BEFORE THE ASSESSING OFFICER. HE RELIED ON THE ORDERS OF THE ASSESSING OFFICER AND CIT (A) AND RE FERRED TO THE RELEVANT PORTIONS OF THE ORDERS OF THE ASSESSING OFFICER A ND CIT (A) IN SUPPORT OF THE CASE OF THE REVENUE. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES CARE FULLY AND PERUSED THE ORDERS OF THE ASSESSING OFFICER AND CIT (A). WE HAVE ALSO PERUSED THE COPY OF THE DOCUMENT FILED IN THE COMPILATI ON FILED BY THE ASSESSEE. WE FIND THE EXPLANATION ALONG WITH SUPPORTIN G EVIDENCE WAS FILED BY THE ASSESSEE IN THE 'DAK COUNTER' OF THE DEPA RTMENT AND THE NECESSARY RECEIPT WITH NUMBER AND DATE OF RECEIPT WAS OB TAINED BY THE ASSESSEE ON ITS COPY OF THE DOCUMENT CLAIMED TO HAVE BEEN F ILED BY THE ASSESSEE. THE ASSESSEE HAS FILED A COPY OF THE ACKNOWLEDGEME NT OF FILING HIS DOCUMENTS IN THE COMPILATION BEFORE US . 3 ON PAGE 31 ON WARDS. THIS ACKNOWLEDGMENT DATED 30-3-2 001 OBTAINED BY THE ASSESSEE IS IN EVIDENCE OF ITS FILING THE EXPLANA TION AND SUPPORTING EVIDENCE IN SUPPORT OF THE CASE OF THE ASSESSEE AND IT COULD NOT BE CONTROVERTED ON BEHALF OF THE REVENUE. IN TH E FACTS OF THE CASE WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSING OFFICER SHOULD HAVE CONSIDERED THE EXPLANATION AND THE EVIDENCE FILED BY T HE ASSESSEE IN SUPPORT OF ITS CASE BEFORE COMPLETING THE ASSESSMENT. ACCORD INGLY IN THE INTEREST OF JUSTICE WE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES TO THE FILE OF THE ASSESSING OFFICER IN ALL THESE APPEAL S FILED BEFORE US WITH A DIRECTION TO FRAME A DE NOVO ASSESSMENTS IN ACCORDANCE WIT H LAW AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE ASSESSEE IS AT LIBERTY TO FILE THE EVIDENCE IN SUPPORT OF ITS CASE. WE DIRECT ACCORDINGLY. 5. IN VIEW OF OUR SETTING ASIDE THE ASSESSMENTS TO THE FI LE OF THE ASSESSING OFFICER WE ARE NOT ADJUDICATING THE OTHER ISSUES RAISED BY THE ASSESSEE IN ITS GROUNDS OF APPEAL BEFORE US. 6. IN THE RESULT ALL THE APPEALS FILED BY THE ASSESSEE A RE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE COURT ON 30-4-2010. SD/- (CHANDRA POOJARI) SD/- (G.C. GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DATED :30-4-2010. . 4 COPY FORWARDED TO: 1. M/S/ KOTHARI CONSTRUCTIONS 5-2-58 KOTHARI CHAMB ERS JAMBAUG HYDERABAD. 2. DCIT CIR-5(1) HYDERABAD. 3. COMMISSIONER OF INCOME TAX(A) V HYDERABAD 4. COMMISSIONER OF INCOME TAX AP HYDERABAD 5. THE D.R. ITAT HYDERABAD. JMR*