Shri Gopalbhai S. Patel,, Jasdan v. The Income Tax Officer, Ward-2(2),, RAJKOT-GUJARAT

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI T.K. SHARMA (JM) AND SHRI A.L. GEHLOT ( AM) I.T.A. NO.955/RJT/2010 (ASSESSMENT YEAR 2004-05) SHRI GOPALBHAI S PATEL VS THE ITO WD.2(2) BEHIND NEW BUS STAND RAJKOT JAYRAM PLOT JASDAN PAN : AGYOPP9175D (APPELLANT) (RESPONDENT) DATE OF HEARING : 02-11-2011 DATE OF PRONOUNCEMENT : 04-11-2011 APPELLANT BY : SHRI JC RANPURA RESPONDENT BY: SHRI AVINASH KUMAR O R D E R PER T.K. SHARMA (JM) THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER D ATED 09-04-2010 PASSED BY THE CIT(A) RAJKOT FOR THE ASSESSMENT YEA R 2004-05. 2. VARIOUS GROUNDS RAISED IN THIS APPEAL READ AS UN DER: 1.0 THE GROUNDS OF APPEAL MENTIONED HEREUNDER ARE WITHOUT PREJUDICE TO ONE ANOTHER. 2.0 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS )-III RAJKOT [HEREINAFTER REFERRED TO AS THE CIT(A) ERR ED ON FACTS AS ALSO IN LAW IN NOT DECIDING GROUND OF APPEAL REL ATING TO VALIDITY OF NOTICE ISSUED U/S 148 OF THE ACT. 3.0 THE LD.CIT(A) ERRED ON FACTS AS ALSO IN LAW IN CONFIRMING THE ADDITION MADE OF RS.4 33 163/- AS UNEXPLAINED INVES TMENT U/S 69B OF THE ACT. THE ADDITION MAY KINDLY BE DE LETED. ITA NO.955/RJT/2010 2 4.0 THE LD.CIT(A) ERRED ON FACTS AS ALSO IN LAW IN SUSTAINING DISALLOWANCE OF RS.4 567/- BEING 1/10 TH OF EXPENSES RELATED TO DEPRECIATION ON CAR VEHICLE EXPENSE TELEPHONE EXPENSE TEA EXPENSE ETC. THE DISALLOWANCE MAY BE DELETED. 3. GROUND NO.1 IS GENERAL IN NATURE AND NEEDS NO AD JUDICATION. 4. GROUND NO.2 IS DISMISSED BEING NOT PRESSED AT TH E TIME OF HEARING. 5. WITH REGARD TO CONTROVERSY INVOLVED IN GROUND NO .3 THE LD. COUNSEL FOR THE ASSESSEE VIDE LETTER DATED 20-07-2011 MADE A REQUES T TO ADMIT ADDITIONAL GROUND. THE CONTENTS OF THE SAID LETTER READ AS UN DER: 2.0 IN FILING THE ABOVE APPEAL THE APPELLANT HAS RAISED GROUND OF APPEAL RELATING TO ADDITION OF RS.4 33 163/- MADE U /S 69B OF THE ACT ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN PUR CHASE OF LAND WHICH WAS CONFIRMED BY LD. COMMISSIONER OF INCOME T AX (APPEALS)-III RAJKOT (HEREINAFTER REFERRED TO AS T HE CIT) IN MAKING THE ASSESSMENT THE AO VIDE PARA 5.0 OF THE ASSESSM ENT STATED RELIED ON ONE OF THE CO-OWNERS BALANCE SHEET SHOWI NG INVESTMENT OF RS.5 31 544/- WITHOUT GIVING ANY OPPORTUNITY TO THE APPELLANT TO MAKE SUBMISSION IN THE MATTER. LD.CIT(A) ALSO RELI ED UPON THE BALANCE SHEET OF THAT CO-OWNER. THEREFORE THE APP ELLANT WISH TO RAISE THE FOLLOWING ADDITIONAL GROUND OF APPEAL AND REQUESTS THE HONBLE TRIBUNAL TO ADMIT THE SAME AND DECIDE ON ME RITS: THE LEARNED AO ERRED ON FACTS AS ALSO IN LAW IN REL YING UPON THE BALANCE SHEET OF ONE OF THE CO-OWNERS BASUBHAI BAHADURBHAI VALA WITHOUT ALLOWING OPPORTUNITY TO C ROSS EXAMINATION TO THE APPELLANT. THE AO MAY KINDLY BE DIRECTED TO ALLOW THE CROSS EXAMINATION. 6. SHRI JC RANPURA THE LD.COUNSEL OF THE ASSESSEE RELYING ON THE ABOVE POINTED OUT THAT THE CONTROVERSY INVOLVED IN GROUND NO.3 BE RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT THE A SSESSING OFFICER MAY ALLOW AN OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE OT HER CO-OWNER VIZ. SHRI BASUBHAI BAHADURBHAI VALA AND MAKE SUBMISSION THERE ON. ITA NO.955/RJT/2010 3 7. ON THE OTHER HAND SHRI AVINASH KUMAR THE LD.DR OBJECTED TO THIS PLEA OF THE LD.COUNSEL OF THE ASSESSEE ON THE GROUND THAT A T THIS STAGE THIS PLEA CANNOT BE ADMITTED AS IT WAS NOT RAISED BEFORE THE LD.CIT( A). 8. HAVING HEARD BOTH SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT IN MAKING THE ADDITION OF RS.4 33 163 U/S 69B OF I.T. ACT THE LD.CIT(A) HAS RELIED UPON THE BALANCE-SHEET OF ONE OF THE CO-OWNERS VIZ. SHRI BASUBHAI BAHADUR BHAI VALA WITHOUT ALLOWING OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE SA ID CO-OWNER. LOOKING TO THE PECULIAR FACTS WE SET ASIDE THE ORDER OF LD.CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION (1) THE ASSESSING OFFICER SHOULD FURNISH THE BALANCE-SHEET OF SHRI BA SUBHAI BAHADURBHAI VALA ONE OF THE CO-OWNERS TO THE ASSESSEE; AND (2) THE ASSE SSING OFFICER SHALL ALLOW THE ASSESSEE TO CROSS EXAMINE SHRI BASUBHAI BAHADURBHAI VALA AND THEREAFTER WILL READJUDICATE THIS ADDITION AFRESH IN ACCORDANCE WIT H LAW. 9. COMING TO GROUND NO.4 WE ARE OF THE VIEW THAT T HE DISALLOWANCE TO THE EXTENT OF RS.4 567 BEING 1/10 TH EXPENSES RELATING TO DEPRECIATION ON CAR VEHICLE EXPENSES TEA EXPENSES ETC. ARE FAIR AND REASONABL E. WE THEREFORE DECLINE TO INTERFERE WITH THE ORDER OF CIT(A). 10. GROUND NO.4 IS REJECTED. ITA NO.955/RJT/2010 4 11. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04-11-2011. SD/- SD/- (A.L. GEHLOT) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT DT : 04 TH NOVEMBER 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-III RAJKOT 4. THE CIT-II RAJKOT 5. THE DR I.T.A.T. RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT