Sushil D. Patil, v. ACIT,

ITA 936/PUN/2008 | 2001-2002
Pronouncement Date: 13-08-2010 | Result: Allowed

Appeal Details

RSA Number 93624514 RSA 2008
Bench Pune
Appeal Number ITA 936/PUN/2008
Duration Of Justice 2 year(s) 1 month(s) 13 day(s)
Appellant Sushil D. Patil,
Respondent ACIT,
Appeal Type Income Tax Appeal
Pronouncement Date 13-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 13-08-2010
Assessment Year 2001-2002
Appeal Filed On 30-06-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 936/PN/2008 (ASSTT. YEAR : 2001-02) SHRI SUSHIL DATTATRAYA PATIL 1194/1 VRINDAVAN APARTMENTS SHIVAJINAGAR PUNE -5 PAN : ABIPP-4113-G .. APPELLANT V. ACIT CENTRAL CIRCLE 2(2) PUNE . RESPONDENT APPELLANT BY : SHRI NIKHIL PATHAK RESPONDENT BY : SHRI R. KAUSHAL ORDER PER D. KARUNAKARA RAO AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER OF THE CITA)- II PUNE DATED 3.3.2008 FOR THE A.Y. 2001-02 RAISING THE FOLLOWING GROUNDS WITHOUT PREJUDICE TO EACH OTHER: 1] THE LEARNED CIT(A) ERRED IN NOT COMPLETELY DELETI NG THE ADDITION U/S 2(22)(E). 2] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE L OANS ADVANCED TO THE SHAREHOLDERS IN THE EARLIER YEARS OUGHT TO HAVE BEEN REDU CED WHILE COMPUTING THE ACCUMULATED PROFITS AND ACCORDINGLY NO ADDITION WAS JUSTIFIED U/S 2(22)(E). 3] THE LEARNED CIT(A) ERRED IN CONFIRMING AN ADDITION O F RS.45 000/- ON ACCOUNT OF CERTAIN FIXED DEPOSITS. 3.1] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT NO ADDITION WAS WARRANTED IN THIS REGARD. 3.2] THE LEARNED CIT(A) ERRED IN NOT ADMITTING THE ADDITIONAL EVIDENCE WITHOUT APPRECIATING THAT THE ASSESSEE HAS REASONABLE CAUSE IN NOT SUBMITTING THE SAME BEFORE THE LOWER AUTHORITIES. 2. ASSESSEE HAS ALSO RAISED THE FOLLOWING ADDITIONAL GROUND : 1] THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION U/S 2(22)(E) WITHOUT APPRECIATING THAT NO INCRIMINATING EVIDENCE W AS FOUND DURING SEARCH AND HENCE THERE WAS NO REASON TO MAKE THE SAID ADDIT ION IN THE ASST. COMPLETED U/S 153A. ITA NO 936/PN/2008 SHRI SUSHIL DATTATRAYA PATIL A.Y.2001-02 PAGE OF 3 2 3. AT THE VERY OUT SET IT IS BROUGHT TO OUR NOTICE TH E ADDITIONAL GROUND RAISED BY THE ASSESSEE. DURING THE PROCEEDINGS LD COUNSEL FOR T HE ASSESSEE HIGHLIGHTED THE IMPORTANCE OF THE SAID ADDITIONAL GROUND AND ARGUED S TATING THAT THE SAID ISSUE GOES TO THE ROOT OF THE MATTER AND THEREFORE THE SAME BEING LEGAL IN NATURE HAS TO BE ADMITTED FOR ADJUDICATION. ON THE OTHER HAND LD DR F OR THE REVENUE STATED THAT THE REVENUE AUTHORITIES HAVE NO OCCASION TO CULL OUT THE RELEVANT SUPPORT TO ASSESSEES ADDITIONAL GROUND TO THE EXTENT IF THE SAID ADDITION HAS ANY SUPPORT OF THE SEIZED MATERIAL. HE UNDERLINED THE ABSENCE ANY DISCUSSION ON THIS ISSUE DURING THE ASSESSMENT PROCEEDINGS. REVENUE HAS NO OCCASION TO E XAMINE SUPPORTIVE SEIZED MATERIAL TO BACK THEIR ADDITION AND THEREFORE THE MATT ER MUST BE SET ASIDE IN THE INTEREST OF JUSTICE. BOTH THE PARTIES HAVE DEMONSTRATE D THE IMPORTANCE OF ADJUDICATING THE ISSUE RAISED IN THE ADDITIONAL GROUN D FIRST BEFORE GOING INTO THE MERITS OF THE ADDITION. 4. WE HAVE EXAMINED ISSUE RAISED IN THE ADDITIONAL G ROUND. IN HAVE NO DOUBT IN COMMENTING ON THE ADDITIONAL GROUND RAISED THAT IT IS CERTAINLY LEGAL IN ITS NATURE AND THEREFORE THE SAME HAS TO BE ADMITTED IN VIEW OF THE SUPREME COURT JUDGMENT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION (299 IT R 383)(SC). REGARDING THE ISSUE OF REMITTING TO THE FILES OF THE AO WE FIND F ROM THE ORDERS OF THE REVENUE THAT THEY DID NOT HAVE OCCASION TO EXAMINE IF THERE EXIST S ANY SEIZED PAPERS DISCOVERED DURING THE SEARCH AND SEIZURE OPERATION TO SUPPORT THE A DDITIONS MADE UNDER THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT. IT IS A F ACT THAT A SEARCH WAS CONDUCTED U/S. 132 OF THE I.T. ACT 1961 IN THE SNEH GROUP OF CASES ON 16.10.2003. DURING THE COURSE OF SEARCH CASH OF RS.24 250/- FDRS WORTH RS.8 5 000/- AND JEWELLERY-GOLD OF RS. 5 77 279/- WERE FOUND. FDRS OF RS. 85 000/- AN D JEWELLERY OF RS.2 30 000/- WERE SEIZED. FURTHER CERTAIN DOCUMENTS WERE SEIZED PERT AINING TO THE BUSINESS OF ASSESSEE. WE HAVE NOTICED THERE IS DEVELOPMENT OF L AW ON THE ISSUE OF ADDITION ON ACCOUNT OF DEEMED DIVIDEND SINCE THE COMPLETION OF THE SEARCH ASSESSMENT IN THIS CASE. 5. IN THE INTEREST OF THE JUSTICE WE ARE OF THE OPIN ION THAT THE ADDITIONAL GROUND HAS TO BE REMITTED TO THE FILES OF THE AO FOR D ETAILING THE INCRIMINATING MATERIAL SEIZED DURING THE SEARCH WHICH MAY THROUGH LIG HT ON THE GIVING LOANS OR ADVANCES TO THE ASSESSEE BY THE COMPANY WITH IN THE MEANING OF SECTION 2(22)(E) OF THE ACT. FURTHER HE SHOULD PROVIDE REASONING AS TO HOW SUCH ADDITIONS ARE LEGAL IN ITA NO 936/PN/2008 SHRI SUSHIL DATTATRAYA PATIL A.Y.2001-02 PAGE OF 3 3 THE ASSESSMENT MADE U/S 153A OF THE ACT. CONSIDERING THE PENDENCY OF THE ISSUE WE RESIST FROM GIVING OUR FINDING ON THE GROUNDS RAISED IN THE APPEAL. ACCORDINGLY ALL THE GROUNDS AND THE ADDITIONAL GROUND ARE SET ASIDE TO THE FILES OF THE AO FOR DE NOVO EXAMINATION AND DECISION AFTER GRANTING REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH DAY OF A UGUST 2010. SD/- SD/- (I.C. SUDHIR) JUDICIAL MEMBER (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER PUNE DATED THE 13TH AUGUST 2010 US COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT CENTRAL CIR. PUNE 4. THE CIT(A)-II PUNE 4. THE D.R. A BENCH PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE