Shri Suresh Ramchand Nihlani,, v. The ITO, Ward-2,,

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.06 /RJT/2007 (ASSESSMENT YEAR 2003-04) SHRI SURESH RAMCHAND NIHLANI VS THE ITO WD.2 PROP S.S. VIDEO GANDHIDHAM SHOP NO.DAZ 18 ADIPUR PAN : AAZPN8906B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIMAL DESAI RESPONDENT BY : SHRI I VIJAY KUMAR O R D E R PER AL GEHLOT AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 28- 11-2006 PASSED BY THE CIT(A)-II RAJKOT FOR THE ASS ESSMENT YEAR 2003-04. THE SOLE EFFECTIVE GROUND RAISED IN THE APPEAL READS AS FOLLOWS: 2. THE LEARNED ASSESSING OFFICER HAS ERRED ON FACT S AND IN LAW IN MAKING ADDITION OF RS. 49 00 740/- AS UNDISCLOSE D INCOME OF CABLE CONNECTIONS AND THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE SAME. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A CABLE OPERATOR DERIVING INCOME FROM CABLE CONNECTIONS AND INTEREST INCOME. THE ASSESSING OFFICER WHILE MAKING ASSESSMENT U/S 143(3) MADE ADD ITION OF RS.49 00 740 ON ACCOUNT OF UNDISCLOSED INCOME OF CABLE CONNECTION.. THE ASSESSE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) CONFIRMED THE ADDITI ON MADE BY THE ASSESSING OFFICER BY OBSERVING AS UNDER: 6. I HAVE CAREFULLY CONSIDERED THE BASIS OF ADDITI ON AND THE SUBMISSIONS MADE BY THE ASSESSING OFFICER IN THE CO URSE OF HEARING DURING CAMP AND VIDE REMAND REPORT. I HAVE ALSO CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE AND THE ITA NO.06/RJT/2007 2 REJOINDER ON REMAND REPORT. THE ADDITIONAL EVIDENC E IS BY WAY OF DOCUMENTS OBTAINED BY THE APPELLANT UNDER THE RIGHT TO INFORMATION ACT FROM THE MAMLATDAR GANDHIDHAM. THIS MATERIAL WAS NOT AVAILABLE WITH THE APPELLANT AT THE TIME OF ASSESSM ENT PROCEEDINGS. THE MATERIAL IS PART OF THE RECORD OF STATE GOVERNM ENT AND HAS RELEVANCE FOR THE ISSUE TO BE DECIDED IN APPEAL. I THEREFORE ADMIT THE ADDITIONAL EVIDENCES PRODUCED BEFORE ME. 7. THERE IS STRONG JUSTIFICATION DULY SUPPORTED BY THE EVIDENCES PRODUCED BY THE APPELLANT IN RESPECT OF THE CONTENT ION THAT TOTAL CABLE CONNECTIONS INCLUDING CABLE CONNECTIONS GIVEN THROUGH SUB- CABLE OPERATORS ARE 3 332 (I.E. 1 532 + 1 800) FOR WHICH THE APPELLANT HAS ACCOUNTED INCOMER AS AGAINST 2 840 CA BLE CONNECTIONS ADOPTED BY THE A.O. AS THE BASIS FOR MA KING ADDITION. THEREFORE THERE IS IN FACT NO UNDER-STATEMENT OF I NCOME FROM CABLE CONNECTIONS. THE APPELLANT HAS SUBMITTED PROPER EV IDENCE IN SUPPORT OF THE FACT THAT CONNECTIONS HAVE BEEN GIVE N TO SUB-CABLE OPERATOR FOR WHICH LARGE CONSIDERATION IS RECEIVED AND THE NUMBER OF CONNECTIONS GIVEN BY EACH SUCH SUB-CABLE OPERATO R IT IS DIFFICULT FOR ME AT THIS STAGE TO ACCEPT THE CONTENTION OF TH E APPELLANT AND TO DELETE THE ADDITION IN VIEW OF THE PENDENCY OF PROC EEDINGS UNDER THE ENTERTAINMENT TAX ACT. IN ABSENCE OF THE DE NO VO ORDER OF THE ENTERTAINMENT TAX OFFICER I AM UNABLE TO ACCEPT TH E SUBMISSIONS OF THE APPELLANT THOUGH THE APPELLANT HAS PRODUCED ADEQUATE EVIDENCE FROM THE RECORDS OF THE ENTERTAINMENT TAX OFFICER AND MAMALATDAR. THE APPELLANT CAN BE GIVEN RELIEF ONLY WHEN THE ENTERTAINMENT TAX OFFICER FINALLY PASSES THE DE NOV O ORDER. I HAVE THEREFORE NO CHOICE BUT TO CONFIRM THE ADDITION IN SPITE OF INDEPENDENT EVIDENCE IN SUPPORT OF ASSESSEES CONTE NTION. 3. THE ASSESSEE FILED APPEAL BEFORE THE ITAT. THE ITAT VIDE ITS ORDER DATED 03-06-2008 IN ITA NO.6/RJT/2007 HAS REVERSED THE OR DER OF THE CIT(A) AND RESTORED THE APPEAL TO THE FILE OF THE ENTERTAINMEN T TAX OFFICER WHO WAS DIRECTED TO SUBMIT ASSESSMENT REPORT TO THE ASSESSING OFFICE R AND ON RECEIPT OF THE ASSESSMENT REPORT FROM THE ENTERTAINMENT TAX OFFICE R THE ASSESSING OFFICER SHALL DECIDE THE MATTER AFRESH AFTER GIVING ADEQUATE OPPO RTUNITY OF BEING HEARD GIVEN TO THE ASSESSEE. AGAINST THIS ORDER OF THE TRIBUNA L THE REVENUE FILED APPEAL BEFORE THE HIGH COURT. THE HONBLE HIGH COURT VIDE TAX APPEAL NO.710/RJT/2009 JUDGMENT DATED 23-08-2010 SENT THE MATTER BACK TO T HE FILE OF THE ITAT WITH THE FOLLOWING DIRECTION: ITA NO.06/RJT/2007 3 11. AS THE TRIBUNAL HAD NO JURISDICTION TO RESTORE THE APPEAL TO THE FILE OF THE ENTERTAINMENT TAX OFFICER AND ISSUE FURTHER DIRECTION TO THE SAID AUTHORITY THE IMPUGNED ORDER OF THE TR IBUNAL DATED 03.06.2008 IS HEREBY QUASHED AND SET ASIDE. THE AP PEAL IS ALLOWED. THE MATTER IS REMITTED TO THE TRIBUNAL FO R FRESH DECISION IN ACCORDANCE WITH LAW. THE SUBSTANTIAL QUESTION OF L AW IS ANSWERED ACCORDINGLY. 4. IN COMPLIANCE TO THE DIRECTION OF THE HIGH COURT THE CASE WAS FIXED FOR HEARING AFRESH. 5. THE LD. AR FILED A COPY OF ORDER OF NIYAT ADHIJK ARI MANORANJAN KAR & MAMALDAR GANDHIDHAM (ENTERTAINMENT TAX OFFICER) DA TED 29-01-2009 WHICH IS IN GUJARATI. THE LD.AR SUBMITTED THAT THE CIT(A) H IMSELF HAS STATED THAT THE ASSESSEE CAN BE GIVEN RELIEF ONLY WHEN THE ENTERTAI NMENT TAX OFFICER FINALLY PASSES THE DE NOVO ORDER. THE LD.AR SUBMITTED THAT THE SAID ORDER OF WHICH COPY FILED IN GUJARATI IS FINAL ORDER OF ENTERTAINMENT T AX OFFICER. HE ACCORDINGLY SUBMITTED THAT THE MATTER MAY BE SENT BACK TO THE F ILE OF THE ASSESSING OFFICER. 6. THE LD.DR ON THE OTHER HAND SUBMITTED THAT THE HIGH COURT HAS CONFIRMED THE ORDER OF CIT(A) VIDE PARAGRAPH 6 OF T HE JUDGMENT STATING THAT THE CIT(A) HAS PASSED THE ORDER AFTER A DETAILED SCRUTI NY OF THE MATERIAL AND OTHER EVIDENCE ON RECORD. THEREFORE THE ORDER OF CIT(A) MAY BE CONFIRMED. 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND CAREFULLY GONE THROUGH THE JUDGMENTS OF HONBLE JURISDICTIONA L HIGH COURT. WE FIND THAT THOUGH THE JURISDICTIONAL HIGH COURT AT PARAGRAPH 6 HAS FOUND THAT THE CIT(A) HAS PASSED THE ORDER AFTER A DETAILED SCRUTINY OF MATER IAL AND OTHER EVIDENCE ON RECORD BUT ON GOING THROUGH ENTIRE JUDGMENT OF THE HIGH COURT WE FIND THAT FINALLY THE COURT HAS REMITTED THE MATTER TO THE FILE OF TH E TRIBUNAL FOR FRESH DECISIONS IN ACCORDANCE WITH LAW. THE CIT(A) WHILE CONFIRMING T HE ADDITION HAS OBSERVED THAT THE ASSESSEE CAN BE GIVEN RELIEF ONLY WHEN THE ENTE RTAINMENT TAX OFFICER FINALLY PASSED THE DE NOVO ORDER. SINCE THE ASSESSEE HAS N OW FILED A COPY OF ORDER OF NIYAT ADHIJKARI MANORANJAN KAR & MAMALDAR GANDHIDH AM (ENTERTAINMENT TAX ITA NO.06/RJT/2007 4 OFFICER) DATED 29-01-2009 THE MATTER IS REQUIRED T O BE DECIDED AFTER CONSIDERING THE SAID ORDER OF NIYAT ADHIJKARI MANORANJAN KAR & MAMALDAR GANDHIDHAM (ENTERTAINMENT TAX OFFICER) DATED 29-01-2009. SINC E THE FACTS OF THE CASE ARE REQUIRED TO BE EXAMINED IN THE LIGHT OF THE SAID OR DER OF THE NIYAT ADHIJKARI MANORANJAN KAR & MAMALDAR GANDHIDHAM (ENTERTAINMEN T TAX OFFICER) WE THINK PROPER TO SEND THIS MATTER BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER CONSIDERING THE ORDER OF THE NIYAT ADHIJKARI MANORANJAN KAR & MAMALDAR GANDHIDHAM (ENTERTAINMEN T TAX OFFICER) AND AFTER PROVIDING OPPORTUNITY OF HEARING TO BOTH SIDES. 8. IN THE RESULT THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 25-02-2011. SD/- SD/- (N.R.S. GANESAN) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT DT : 25 TH FEBRUARY 2011 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-II RAJKOT 4. THE CIT-I RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT