Kundanben S. Patel L/H of late Suresh Ambalal Patel, Ahmedabad v. The Dy.CIT.,Circle-9,, Ahmedabad

ITSSA 24/AHD/2008 | misc
Pronouncement Date: 30-09-2016 | Result: Allowed

Appeal Details

RSA Number 2420516 RSA 2008
Bench Ahmedabad
Appeal Number ITSSA 24/AHD/2008
Duration Of Justice 8 year(s) 8 month(s) 4 day(s)
Appellant Kundanben S. Patel L/H of late Suresh Ambalal Patel, Ahmedabad
Respondent The Dy.CIT.,Circle-9,, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 30-09-2016
Date Of Final Hearing 20-09-2016
Next Hearing Date 20-09-2016
Assessment Year misc
Appeal Filed On 25-01-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI N.K. BILLAIYA ACCOUNTANT MEMBER & SHRI S.S. GODARA JUDICIAL MEMBER) IT(SS)A. NO: 24/AHD/2008 (BLOCK PERIOD: 01-04-1985 TO 31-03-1995 & 01-04-1995 TO 21-09-1995 LATE SHRI SURESH AMBALAL PATEL (LH.) KUNDANBEN S. PATEL. UTSAV BUNGLOW 1-2 SUJAN SOCIETY OPP. E.S.I.C STAFF COLONY MANEK BAUG AMBAWADI AHMEDABAD V/S DY. COMMISSIONER OF INCOME TAX CIRCLE-9 AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. N. SOPARKAR AR RESPONDENT BY : SHRI R. I. PATEL CIT/ D.R. ( )/ ORDER DATE OF HEARING : 20-09-2016 DATE OF PRONOUNCEMENT : 30 -09-2016 PER N.K. BILLAIYA ACCOUNTANT MEMBER: 1. WITH THIS APPEAL THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ASSESSMENT ORDER MADE U/S. 158BC R.W.S. 143(3) AND 254 OF THE ACT DATED 26.12.2007. IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 2 2. SUBMISSIONS/ CONTENTIONS MADE BY THE REPRESENTATIVE S OF BOTH SIDES WERE HEARD AT LENGTH AND WITH THE ASSISTANCE OF THE LEARNED SENIOR COUNSEL WE HAVE GONE THROUGH THE RELEVANT DOCUMENT ARY EVIDENCES/DECISION IN THE LIGHT OF RULE 18(6) OF TH E APPELLATE TRIBUNAL RULES. 3. IN THIS CASE THE ORIGINAL ASSESSMENT WAS MADE U/S. 158BC R.W.S. 143(3) OF THE ACT VIDE ORDER DATED 30.09.1996. THAT ASSESSMENT ORDER WAS ASSAILED BEFORE THE TRIBUNAL AND THE TRIBUNAL V IDE ORDER DATED 02.01.2006 IN ITA NOS. 4407 TO 4415/AHD/1996 HAD RE STORED THE ASSESSMENT ORDER BACK TO THE FILE OF THE A.O. THE R ELEVANT FINDINGS OF THE TRIBUNAL READ AS UNDER:- 5 WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MATE RIAL AVAILABLE ON RECORD. IT EMERGES FROM RECORD THAT ASSESSEES HAVE RETRACTED T HEIR STATEMENT UNDER SECTION 132(4) IMMEDIATELY AFTER SEARCH THEREAFTER ASSESS EES REPEATEDLY REQUESTED FOR COPIES OF THE SEIZED DOCUMENTS AND OTHER RELEVANT R ECORD WHICH APPEARS TO HAVE NOT BEEN FURNISHED. CONTENTIONS OF THE ASSESSEES WH ICH ARE REPRODUCED ABOVE HAVE IMPORTANT BEARING WHILE DECIDING THE ISSUES I N BLOCK ASSESSMENT PROCEEDINGS. FROM READING OF THE ORDERS IT APPEARS THAT THEY HAVE NOT BEEN PROPERLY CONSIDERED. WE FURTHER FIND THAT IN THE A BOVE APPEAL NO. IT(SS)A 231/AHD/1007 IS CONNECTED WITH THE ASSESSEES CASE AS IT APPEARS FROM FOLLOWING OBSERVATIONS: 3. CERTAIN STATEMENTS U/S. 132(4) WERE ALSO RECOR DED AND THE ASSESSEE HAD GIVEN COPIES OF THE STATEMENTS OF SHRI PURSHOTTAM GOYAL AND SHRI SURESH A PATEL VIDE LETTER DATED 29-8-97. THE STATEMENT OF SHRI SURESH A PATEL IS SUMMARIZED IN PARA- 3.9 OF THE ASSESSMENT ORDER AS UNDER: ' ITATS OBSERVED AS UNDER: IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 3 '11. WE HAVE HEARD THE PARTIES AND CONSIDERED THEIR RIVAL SUBMISSIONS. THE LOOSE PAPERS FOUND AT THE TIME OF SEARCH DO INDICATE THE ASSESSEE 'S INVOLVEMENT. THESE ENTRIES WERE IDENTIFIED AS BELONGING TO THE ASSESSE E BY TWO PERSONS WHOSE STATEMENTS WERE RECORDED AND COPIES OF WHICH WERE G IVEN TO THE ASSESSEE ON 29-8- 97 MUCH BEFORE COMPLETING THE ASSESSMENT. THE ASSES SEE HAD HOWEVER DENIED HIS INVOLVEMENT IN THESE ENTRIES VIDE LETTER DATED 27-1 1-97. HE HAS ALSO ASKED FOR CROSS EXAMINATION ON 25-11-97 IMMEDIATELY UPON FILI NG OF RETURN ON24-L 1-97 PURSUANT TO AO'S NOTICE U/S.!58BD IS SERVED ON 8-9- 97. HE HAS ALSO ASKED FOR THE CROSS EXAMINATION ON27-L-97. EVERY PROCEEDINGS FROM ISSUE OF NOTICES U/S.158BD SERVING COPIES OF STATEMENTS FILING OF RETURN ASK ING FOR CROSS EXAMINATION AND COMPLETION OF ASSESSMENT THEREUPON WAS WITHIN A PER IOD OF TWO TO THREE MONTHS. THE FILING OF RETURN AND REQUEST OF CROSS EXAMINATI ON AND MAKING OF ASSESSMENT WAS WITHIN FOUR DAYS I.E. FROM 24-11-97 TO 28-11-97 . THIS ALSO SHOWS THAT NO PARTICULAR OPPORTUNITY WAS ALLOWED TO THE ASSES SEE AND THEREFORE THE ASSESSMENT REQUIRES TO BE SET ASIDE FOR MAKING IT AFRESH AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND MAKING AVAILABLE THE MATE RIAL ON RECORD AND CROSS EXAMINATION OF PERSONS WHOSE STATEMENTS ARE RECORDE D AND ARE UTILIZED AGAINST THE ASSESSEE. ' TRIBUNAL SET ASIDE ASSESSMENT BACK TO THE FILE OF A .O. WITH FOLLOWING OBSERVATIONS: '12........ ....... ..... THE PROPER ORDER TO BE PASSED IN SUCH A CASE WOULD BE TO SET ASIDE THE ASSESSMENT AND TO DIRECT THE ITO TO MAKE A FRESH ASSESSMENT IN ACCORDANCE WITH THE PROCEDURE PRESCRIBED BY LAW. IT WOULD NOT BE CORRECT MERELY TO UPHOLD THE ASSESSMENT AND DIRECT THE ITO TO MAKE APPROPRIATE MODIFICATIONS. WE ACCORDINGLY SET ASIDE THE ASSESSMENT WITH THE DI RECTION TO MAKE IT AFRESH AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE A ND MAKING THE MATERIAL AVAILABLE WHICH IS TO BE UTILIZED AGAINST THE ASSES SEE '. IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 4 IN VIEW OF THESE FACTS AND CIRCUMSTANCES WE FIND M ERIT IN THE ARGUMENTS OF THE LEARNED COUNSEL TO SET ASIDE THESE BLOCK ASSESSMENT S BACK TO THE FILE OF A.O. TO BE FRAMED AFRESH AFTER GIVING ASSESSEES ADEQUATE OPPOR TUNITY OF BEING HEARD AND CONSIDERING MATERIAL SUBMISSIONS AND CONTENTIONS O F THE ASSESSEES AND BY PASSING APPROPRIATE SPEAKING ORDERS. 4. IN THE FIRST ROUND OF LITIGATION THE FOLLOWING FAC TS WERE STRONGLY CONTENDED AND BROUGHT TO THE NOTICE OF THE TRIBUNAL WHICH PROMPTED THE TRIBUNAL TO GIVE THE AFORE-STATED DIRECTIONS:- IN FINE IT WAS CONTENDED THAT ASSESSEE SUBMITTED ALL RELEVANT TO ESTABLISH- (I) NRI ACCOUNTS WERE OWNED BY THE RESPECTIVE NRIS. AND SURESH A. PATEL AND FAMILY MEMBERS WERE ONLY ACTING AS AGENTS; (II) DEPOSITS MADE IN ACCOUNTS WERE BY WAY OF CHEQUES/CA SH BY RESPECTIVE NRIS. THE DETAILS WHEREOF WERE FURNISHED; (III) CASH DEPOSITED THEREIN WAS MADE BY RESPECTIVE NRIS DURING THE PERIOD OF THEIR STAY IN INDIA; (IV) ALL THESE NRIS. ACCEPTED THESE FACTS BY FILING CO NFIRMATORY LETTERS OWNING UP THESE ACCOUNTS AND DEPOSITS THEREIN; (V) SHARE TRANSFERS WERE AFFECTED ON BEHALF OF THESE NR IS. WHICH WERE ALSO CONFIRMED BY THEM; (VI) SALES OF SHARES WERE AFFECTED IN THE NAMES OF RESPE CTIVE NRIS. WHICH WERE CONFIRMED BY THEM AND TDS WAS DULY DEDUCTED FROM TH ESE SHARE TRANSFERS. (VII) COMPLETE DETAILS OF TDS WERE FURNISHED BEFORE AO. (VIII) RETRACTION STATEMENTS BY THE ASSESSEES WERE IMMEDIA TELY AFTER SEARCH WHICH WERE IMMEDIATE AND SPONTANEOUS GIVING PROPER REASONS AND SUPPORTING CONTENTIONS WITH ALL THESE DOCUMENTS; (IX) AO HAS NOT CONSIDERED THESE MATERIAL FACTS WHILE FR AMING BLOCK ASSESSMENTS WHICH WERE COMPLETED IN HURRIED MANNER THEREFORE NEITHER ASSESSEES' MATERIAL EVIDENCES NOR CONTENTIONS HAVE BEEN CONSIDERED AND DUE TO NON-SUPPLY OF COPIES OF THE DOCUMENTS PRINC IPLE OF NATURAL JUSTICE HAVE BEEN VIOLATED. IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 5 IT WAS CONTENDED THAT APPEALS HAVE BEEN FILED DIRECTLY AGAINST ASSESSMENT ORDERS AS PER PRE-AMENDED PROVISIONS. B ECAUSE OF THESE OMISSIONS ASSESSMENT SUFFERS FROM MANY INFIRMITIES I.E. NON-C ONSIDERATION OF MATERIALS SUBMISSIONS DENIAL OF RIGHT OF NATURAL JUSTICE FO R NON-SUPPLY OF RELEVANT COPIES OF MATERIAL WHICH WAS REPEATEDLY REQUESTED. IT WA S REQUESTED THAT ALL ORDERS MAY BE SET ASIDE RESTORED BACK TO THE FILE OF AO TO BE FRAMED AFRESH AFTER GIVING ASSESSEES OPPORTUNITY OF BEING HEARD WITH DIRECTIO NS TO CONSIDER MATERIAL AND EVIDENCES SUPPLIED BY THE ASSESSEE IN ACCORDANCE WI TH LAW. IT WAS CONTENDED THAT FACTS AND CIRCUMSTANCES IN ALL THESE CASES ARE SIMILAR AS THEY AROSE OUT OF SAME SEARCH PROCEEDINGS. LEARNED COUNSEL FURTHER CO NTENDED THAT IN ANOTHER CONNECTED CASE HAVING SIMILAR FACTS AND CIRCUMSTANC ES IN IT(SS) NO. 231/AHD/1997 IN THE CASE OF MAHESH L. SHARMA VS. CI T VIDE ORDER DATED 23-07- 2004 TRIBUNAL HAS SET ASIDE ISSUE BACK TO THE FILE OF AO. 4. LEARNED D.R. HAS NO OBJECTION FOR SETTING ASIDE BLOCK ASSESSMENTS IN THESE CASES. 5. IN THE PRESENT APPEAL THE LEARNED SENIOR COUNSEL VEHEMENTLY CONTENDED THAT THE A.O. BLATANTLY DISREGARDED THE D IRECTIONS OF THE TRIBUNAL AND IN COMPLETE DISREGARD VERBATIM REPEATE D THE ASSESSMENT ORDER DATED 30/09/1996 WHICH WAS NOT ACCEPTED BY TH E TRIBUNAL AS MENTIONED ELSEWHERE. IT IS THE SAY OF THE LD. SENIO R COUNSEL BY DISREGARDING THE FINDINGS OF THE TRIBUNAL QUA THE F ACTS OF THE CASE; THE A.O. HAS GROSSLY ERRED IN MAKING AN ERRONEOUS ORDER WHICH DESERVES TO BE QUASHED. PER CONTRA THE LD. D.R. STRONGLY STATE D THAT IF THE A.O. HAS FAILED TO CARRY OUT THE SPECIFIC DIRECTIONS OF THE TRIBUNAL THE ISSUE MAY BE ONCE AGAIN RESTORED BACK TO THE FILES OF THE A.O. FOR FRESH ASSESSMENT. A PERUSAL OF THE ORIGINAL ASSESSMENT OR DER DATED 30/09/1996 SHOWS THAT THE TOTAL UNACCOUNTED INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD WAS COMPUTED AS UNDER:- UNDISCLOSED INCOME FOR A.Y. 1989-90 IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 6 UNACCOUNTED CASH SPENT FOR H.H. EXP. 1 00 000/- UNDISCLOSED INCOME FOR A.Y. 1990-91 UNACCOUNTED CASH SPENT FOR H.H EXP. 100000/- UNDISCLOSED INCOME FOR A.Y. 1991-92 UNACCOUNTED CASH SPENT FOR H.H. EXP. 100000/- UNDISCLOSED INCOME FOR A.Y. 1992-93 UNACCOUNTED CASH SPENT FOR H.H. EXP 100000/- UNDISCLOSED INCOME FOR A.Y. 1993-94 UNACCOUNTED INVESTMENTS IN SHARES/DEBENTURES 24568 03/- THROUGH NRE ACCOUNTS AND INCOME THERE FROM UNACCOUNTED CASH SPENT FOR H.H. EXP. 100000/- 25 56 000/- UNDISCLOSED INCOME FOR A.Y. 1994-95 ON-MONEY PAID FOR PURCHASE OF SUJAN PLOT 2500000/- UNACCOUNTED INVESTMENTS IN SHARES/DEBENTURES 29698 76/- THROUGH NRE ACCOUNTS AND INCOME THERE FROM UNACCOUNTED INVESTMENTS IN CHITRAKUT TWIN BUNGLOW 400000/- BUNGLOW CONSTRUCTION UNACCOUNTED CASH PAID FOR ACQUISITION OF TWO KINETIC HONDA FOR DAUGHTER 44000/- UNACCOUNTED CASH SPENT FOR H.H. EXP. 100000/- UNACCOUNTED EXPENDITURE FOR FOREIGN TOUR 150000/- 61 63 876/- LESS:- SET OFF AS DISCUSSED ABOVE 23 035/- 61 40 841 UNDISCLOSED INCOME FOR A.Y. 1995-96 UNACCOUNTED INVESTMENTS IN SHARES/DEBENTURES 15189 61/- IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 7 THROUGH NRE ACCOUNTS AND INCOME THERE FROM UNACCOUNTED ADVANCES FOR PURCHASE OF LAND AS PER DIARY 950000/- UNACCOUNTED CASH INVESTED AS SHARE OF 25% IN AAWRAM CO.OP. HSG. SOC. 2500000/- UNACCOUNTED CASH PAID TO THE TENANT FOE EVEACUTING THE RESIDENCE OF SISTER 210000/- UNACCOUNTED CASH INVESTED IN THE SHARES OF PEARL SECURITIES DISPATCHED OF SISTER 17000/- UNACCOUNTED CASH PAID AS SHARE FOR ACQUISITION OF VARIOUS LAND FROM SHRI ANWARBHAI (BHOREJA LAND) 280 000/- UNACCOUNTED CASH PAID AS AN ADVANCES TO SHRI DINESH 100000/- UNACCOUNTED INVESTMENTS MADE IN BODAKDEV LAND 50000 0/- UNACCOUNTED CASH SPENT FOR H.H. EXP. 100000/- UNACCOUNTED MONEY SPENT FOR CONSTRUCTION OF SUJAN BUNGL. 800000/- INVESTMENTS IN SHARES AS PER DIARY A/1 SEIZED FROM AJAY BHATT(50% SHARE) 1075000/- LAND NEAR ANJALI CINEMA 700000/- 87 50 961/- LESS:- SET OFF AS DISCUSSED ABOVE 32 12 745/- 55 38 216 UNDISCLOSED INCOME FOR A.Y. 1996-97 IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 8 UNACCOUNTED INVESTMENTS IN SHARES/DEBENTURES 65000 0/- THROUGH NRE ACCOUNTS AND INCOME THERE FROM UNACCOUNTED CASH FOUND FROM RESIDENCE 277000/- UNACCOUNTED CASH SPENT FOR RENOVATION OF HOME 1000 00/- UNACCOUNTED CASH SPENT FOR TELEPHONE BOOKING & REPAIR AND CAR 16000/- BALANCE IN UNDISCLOSED BANK ACCOUNTS 650000/- UNACCOUNTED CASH SPENT FOR H.H. EXP. 10000/- 17 93 000/ - LESS:-SET OFF AS DISCUSSED ABOVE (RESTRICTED) 6 93 000/- 11 00 000 /- TOTAL UNDISCLOSED INCOME FOR THE BLOCK PERIOD: ASSESSMENT YEAR 1986-87 NIL ASSESSMENT YEAR 1987-88 NIL ASSESSMENT YEAR 1988-89 NIL ASSESSMENT YEAR 1989-90 100000/- ASSESSMENT YEAR 1990-91 100000/- ASSESSMENT YEAR 1991-92 100000/- ASSESSMENT YEAR 1992-93 100000/- ASSESSMENT YEAR 1993-94 2556000/- ASSESSMENT YEAR 1994-95 61 40 8 41 ASSESSMENT YEAR 1995-96 55 38 21 6/- ASSESSMENT YEAR 1996-97 11 00 00 0/- 1 57 35 057/- ADD:- TOTAL INCOME INCLUDING UNDISCLOSED INCOME AS PER RETURN 25 14 115 /- 1 82 49 172/- IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 9 LESS:- RETURNED/ASSESSED INCOME 6 35 227/- UNDISCLOSED INCOME FOR THE BLOCK PERIOD 1 76 13 945/- ASSESSED U/S. 158BC READ WITH SECTION 143(3) OF THE ACT. ISSUE D.N. AND CHALLAN ALONG WITH COPY OF ORDER TO THE ASSESSEE. 6. WE HAVE CAREFULLY CONSIDERED THE AFOREMENTIONED ADD ITIONS MADE IN THE ORIGINAL ASSESSMENT ORDER DATED 30.09.1996 WITH THE ASSESSMENT ORDER UNDER APPEAL BEFORE US. WE FIND FORCE IN THE CONTENTIONS OF THE LD. SENIOR COUNSEL THAT THE ASSESSMENT ORDER IS VER BATIM REPETITION OF THE ORIGINAL ASSESSMENT ORDER THOUGH THE PARAGRAPH NUMBERS MAY DIFFER. IN THE ASSESSMENT ORDER UNDER APPEAL THE T OTAL INCOME IS COMPUTED AS UNDER:- COMPUTATION OF INCOME INCLUDING UNACCOUNTED INCOME UNDISCLOSED INCOME FOR A.Y. 1989-90 UNACCOUNTED CASH SPENT FOR H.H. EXP. 100000/- UNDISCLOSED INCOME FOR A.Y. 1990-91 UNACCOUNTED CASH SPENT FOR H.H EXP. 100000/- UNDISCLOSED INCOME FOR A.Y. 1991-92 UNACCOUNTED CASH SPENT FOR H.H. EXP. 100000/- UNDISCLOSED INCOME FOR A.Y. 1992-93 UNACCOUNTED CASH SPENT FOR H.H. EXP 100000/- UNDISCLOSED INCOME FOR A.Y. 1993-94 UNACCOUNTED INVESTMENTS IN SHARES/DEBENTURES 24568 03/- THROUGH NRE ACCOUNTS AND INCOME THERE FROM UNACCOUNTED CASH SPENT FOR H.H. EXP. 100000/- 25 56 000/- IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 10 UNDISCLOSED INCOME FOR A.Y. 1994-95 ON-MONEY PAID FOR PURCHASE OF SUJAN PLOT 2500000/- UNACCOUNTED INVESTMENTS IN SHARES/DEBENTURES 29698 76/- THROUGH NRE ACCOUNTS AND INCOME THERE FROM UNACCOUNTED INVESTMENTS IN CHITRAKUT TWIN BUNGLOW 400000/- BUNGLOW CONSTRUCTION UNACCOUNTED CASH PAID FOR ACQUISITION OF TWO KINETIC HONDA FOR DAUGHTER 44000/- UNACCOUNTED CASH SPENT FOR H.H. EXP. 100000/- UNACCOUNTED CASH SPENT FOR FOREIGN TRAVELS 150000/ - ADDITION ON ACCOUNT OF UNDISCLOSED INCOME (VIDE LOOSE PAPERS FILE ANN.A-1 PAGE 1 TO 126 & PAGE 1 TO 35) AS DISCUSSED ABOVE 39799000/- 45962876/- LESS : SET OFF AS DISCUSSED ABOVE 23035/- 45939841 UNDISCLOSED INCOME FOR A.Y. 1995-96 UNACCOUNTED INVESTMENTS IN SHARES/DEBENTURES 15189 61/- THROUGH NRE ACCOUNTS AND INCOME THERE FROM UNACCOUNTED ADVANCES FOR PURCHASE OF LAND AS PER DIARY 950000/- UNACCOUNTED CASH INVESTED AS SHARE OF 25% IN AAWRAM CO.OP. HSG. SOC. 2500000/- UNACCOUNTED CASH PAID TO THE TENANT FOE EVEACUTING THE RESIDENCE OF SISTER 210000/- UNACCOUNTED CASH INVESTED IN THE SHARES OF PEARL IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 11 SECURITIES DISPATCHED OF SISTER 17000/- UNACCOUNTED CASH PAID AS SHARE FOR ACQUISITION OF VARIOUS LAND FROM SHRI ANWARBHAI (BHOREJA LAND) 280 000/- UNACCOUNTED CASH PAID AS AN ADVANCES TO SHRI DINESH 100000/- UNACCOUNTED INVESTMENTS MADE IN BODAKDEV LAND 50000 0/- UNACCOUNTED CASH SPENT FOR H.H. EXP. 100000/- UNACCOUNTED MONEY SPENT FOR CONSTRUCTION OF SUJAN BUNGL. 800000/- INVESTMENTS IN SHARES AS PER DIARY A/1 SEIZED FROM AJAY BHATT(50% SHARE) 1075000/- LAND NEAR ANJALI CINEMA 700000/- ADDITION ON ACCOUNT OF UNDISCLOSED INCOME (VIDE LOOSE PAPERS FILE ANN.A-1 PAGE 1 TO 126 & PAGE 1 TO 35) AS DISCUSSED ABOVE 82099000/- 90849961/- LESS: SET OFF AS DISCUSSED ABOVE 3212745/- 87637216/- UNDISCLOSED INCOME FOR A.Y. 1996-97 UNACCOUNTED INVESTMENTS IN SHARES/DEBENTURES 65000 0/- THROUGH NRE ACCOUNTS AND INCOME THERE FROM UNACCOUNTED CASH FOUND FROM RESIDENCE 277000/- UNACCOUNTED CASH SPENT FOR RENOVATION OF HOME 1000 00/- UNACCOUNTED CASH SPENT FOR TELEPHONE BOOKING & REPAIR AND CAR 16000/- IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 12 BALANCE IN UNDISCLOSED BANK ACCOUNTS 650000/- UNACCOUNTED CASH SPENT FOR H.H. EXP. 10000/- ADDITION ON ACCOUNT OF UNDISCLOSED INCOME (VIDE LOOSE PAPERS FILE ANN.A-1 PAGE 1 TO 126 & PAGE 1 TO 35) AS DISCUSSED ABOVE 5480000/- 56593000/- LESS: SET OFF AS DISCUSSED ABOVE (RESTRI CTED) 693000/- 55900000/- TOTAL UNDISCLOSED INCOME FOR THE BLOCK PERIOD ASSESSMENT YEAR 1986-87 NIL ASSESSMENT YEAR 1987-88 NIL ASSESSMENT YEAR 1988-89 NIL ASSESSMENT YEAR 1989-90 100000/- ASSESSMENT YEAR 1990-91 100000/- ASSESSMENT YEAR 1991-92 100000/- ASSESSMENT YEAR 1992-93 100000/- ASSESSMENT YEAR 1993-94 2556000/- ASSESSMENT YEAR 1994-95 45939841/- ASSESSMENT YEAR 1995-96 87637216/- ASSESSMENT YEAR 1996-97 55900000/- 192433057/- ADD : TOTAL INCOME INCL. UNDISCLOSED INCOME AS PER RETURN 2514 115/- 194311945/- LESS : RETURNED / ASSESSED INCOME 635227/- UNDISCLOSED INCOME FOR THE BLOCK PERIOD 194311945/- R./O. 194311950/- ASSESSED U/S. 158BC R.W.S. 143(3) & 254 OF THE IT A CT. ISSUE DEMAND NOTICE AND CHALLAN AFTER GIVING EFFECT TO THE PREPA ID TAXES. ALSO ISSUE PENALTY NOTICE U/S. 271(1)(B) FOR NON COMPLIANCE OF NOTICE U/S. 142(1) OF I.T. ACT. IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 13 7. A COMPARISON OF TWO ASSESSMENT ORDERS COMPUTING THE INCOME OF THE ASSESSEE SHOW THAT THE ADDITIONS MADE IN THE ORIGIN AL ASSESSMENT ORDER HAVE BEEN REPEATED IN THE LETTER AND SPIRIT. 8. A PERUSAL OF THE DIRECTIONS OF THE TRIBUNAL WHILE S ETTING ASIDE THE ASSESSMENT BACK TO THE FILE OF THE A.O. SHOWS THAT THE TRIBUNAL HAS DIRECTED THE A.O. TO FRAME AFRESH AFTER GIVING ASSE SSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND CONSIDERING MATERIAL S SUBMISSIONS AND CONTENTIONS OF THE ASSESSEE AND PASSING APPROPRIATE SPEAKING ORDERS. THE DIRECTIONS WERE TO FRAME THE ASSESSMENT AFRESH WHAT THE A.O. HAS DONE IS THAT HE HAS SIMPLY REFRAMED THE ASSESSMENT ORDER FLAUNTING THE DIRECTIONS OF THE TRIBUNAL. 9. DURING THE COURSE OF HIS SUBMISSION THE LD. D.R. V EHEMENTLY STATED THAT THE A.O. GAVE AMPLE OPPORTUNITIES TO THE ASSES SEE BUT THE ASSESSEE FAILED TO AVAIL THOSE OPPORTUNITIES TO EXP LAIN ITS CASE AND THEREFORE NO ERROR CAN BE POINTED OUT IN THE ASSES SMENT ORDER. IT IS THE SAY OF THE LD. D.R. THAT AT THIS STAGE THE ASS ESSEE CANNOT SAY THAT THE A.O. DID NOT GIVE PROPER OPPORTUNITY WHILE REFR AMING THE ASSESSMENT ORDER. THE LD. D.R. CONTINUED BY STATING THAT THE A.O. ASKED THE ASSESSEE SEVERAL TIMES TO EXPLAIN ITS CAS E BY BRINGING DOCUMENTARY EVIDENCES ON RECORD AND HAVING NOT ATTE NDED THE PROCEEDINGS THE ASSESSEE CANNOT FAULT THE ASSESSME NT ORDER. 10. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE SUB MISSIONS MADE BY THE LD. D.R. WE FIND THAT THE ORDER OF THE TRIBUNAL IS DATED 02/01/2006. THE FIRST NOTICE U/S 143(2) R.W.S. 158 BC WAS ISSUED BY THE A.O. ON 09/08/2007 I.E. ALMOST ONE AND HALF YE AR AFTER THE DATE OF IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 14 THE ORDER OF THE TRIBUNAL. THE SUBSEQUENT LETTER WA S ISSUED ON 15.10.2007 IN RESPONSE TO WHICH THE ASSESSEE ATTEND ED ON 19.10.2007. THE OBSERVATIONS OF THE A.O. FOR THIS D ATE ARE THAT THOUGH THE ASSESSEE ATTENDED HOWEVER DID NOT FILE ANY SUBMISSION/EXPLANATIONS WITH REGARD TO THE BLOCK AS SESSMENT. ONCE AGAIN A SHOW CAUSE NOTICE WAS ISSUED ON 19.11.2007 WHICH WAS SERVED ON 01.12.2007. WE FIND THAT THE ASSESSEE MAD E A DETAILED SUBMISSION VIDE LETTER DATED 01.12.2007. THE DETAIL ED SUBMISSIONS OF THE ASSESSEE ARE PLACED AT PAGES 149 TO 217 OF THE PAPER BOOK. THE RELEVANT AND THE MOST IMPORTANT PORTION OF THE AFOR EMENTIONED SUBMISSION OF THE ASSESSEE READ AS UNDER:- 2.THE CONTENTS OF THE NOTICE THE RECORDS AVAILABLE IN TH E CASE OF OUR ABOVE NAMED CLIENT THE ORDER FRAMED BY THE INCOME TAX APPELLAT E TRIBUNAL AND OTHER VARIOUS RECORDS ALONGWITH THE PROVISIONS OF LAW HAVE BEEN V ERY CAREFULLY CONSIDERED. IT IS EVIDENT ON PERUSAL OF ORDER DATED 30 TH SEPTEMBER 1996 THAT THE UNDISCLOSED INCOME WAS ASSESSED AT RS. 1 76 13 945/-. 2.1 THE ASSESSMENT PROCEEDINGS AND THE COMPUTATION OF T HE INCOME WERE BAD IN LAW AND THEREFORE AN APPEAL WAS PREFERRED BEFORE THE IN COME TAX APPELLATE TRIBUNAL. THE HON'BLE INCOME TAX APPELLATE TRIBUNAL WAS SATISFIED THAT THE ASSESSMENT WAS FRAMED BY THE THEN ASSESSING OFFICER WITHOUT COMPLYING WIT H THE PRINCIPLES OF NATURAL JUSTICE AND THE DETAILS AND FACTS PLACED ON THE RECORDS OF THE ASSESSING OFFICER AND THEREFORE THE ASSESSMENT WAS SET ASIDE. THE APPELLATE TRIBUNAL HAS ISSUED THE FOLLOWING DIRECTIONS WHICH IN THE RESPECTFUL SUBMISSIONS OF OUR ABOVE NAMED CLIENT HAVE TO BE COMPLIED WITH BY YOU MANDATORILY. 1. ADEQUATE OPPORTUNITY OF BEING HEARD TO BE GIVEN TO THE ASSESSEE. 2. THE MATERIALS/SUBMISSIONS AND CONTENTIONS OF THE ASSESSEE HAVE TO BE CONSIDERED. 3. THE AO HAS TO PROVIDE ALL THE MATERIALS AVAILABL E TO THE ASSESSEE WHICH IS TO BE UTILIZED AGAINST THE ASSESSEE. 4. THE ASSESSING OFFICER HAS TO FRAME A SPEAKING OR DER. IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 15 2.2 IT IS SUBMITTED THAT ADMITTEDLY THE VARIOUS MATERIALS AND SUBMISSIONS PLACED ON YOUR RECORDS WERE NOT CONSIDERED. THE SAID MATERIAL S BE CONSIDERED IN ACCORDANCE WITH THE DIRECTION OF THE INCOME TAX APPELLATE TRIBUNAL. THE NOTICE DATED 19 TH NOVEMBER 2007 IN THE RESPECTFUL SUBMISSIONS OF OUR ABOVE NAMED CLIENT DO NOT COMPLY WITH THE DIRECTION OF THE INCO ME TAX APPELLATE TRIBUNAL. ON CAREFUL PERUSAL OF THE CONTENTS OF THE NOTICE IT IS OBSERVED BY OUR ABOVE NAMED CLIENT THAT THE NOTICE REITERATES NOTES IN THE RETU RN OF INCOME AND THE FACTS IN CASE OF OUR ABOVE NAMED CLIENT IN GENERAL. IT IS SUBMITT ED THAT CONTENTS OF NOTES BEING CLAIMS MADE BY OUR CLIENT HAVE TO BE CONSIDERED BY YOUR GOODSELF IN THE ASSESSMENT PROCEEDINGS. OUR ABOVE NAMED CLIENT FURT HER OBSERVES THAT CONTENTS OF THE NOTICE HAVE BEEN REPRODUCED FROM THE QUESTIONNA IRE ISSUED ON EARLIER OCCASIONS. IT IS SUBMITTED THAT EACH AND EVERYISSUE STATED IN THE NOTICE WAS RAISED ON EARLIER OCCASION AND EACH AND EVERY ISSUE HAS BE EN COMPLETELY EXPLAINED BY OUR ABOVE NAMED CLIENT ALONG WITH EVIDENCES. ON THE INSTRUCTIONS OF OUR ABOVE NAMED CLIENT THE EXPLANATIONS SUBMISSIONS AND MATE RIALS ALREADY ON RECORDS BE EXAMINED AS PER DIRECTIONS OF THE INCOME TAX APPELL ATE TRIBUNAL. IT IS FURTHER SUBMITTED THAT CERTAIN PARAS OF THE NOTICE HAS BEEN REPRODUCED FROM THE ORDER DATED 30 TH SEPTEMBER 1996. 2.3 THE CONCLUSION DRAWN BY YOU ABOUT UNDISCLOSED INCOME IS SUBSTANTIA L REPRODUCTION OF CERTAIN PARAS OF ORDER DATED 30 TH SEPTEMBER 1996. IT IS MOST RESPECTFULLY SUBMITTED BY OUR ABOVE NAMED CLIENT TH AT UNDER THE FACTS AND THE NOTICE DATED 19 TH NOVEMBER 2007 IS NOT IN CONSONANCE WITH THE TO YO U BY THE HON'BLE INCOME TAX APPELLATE TRIBUNAL. IT MAY BE NO TED THAT EACH AND EVERY ISSUE WHICH HAS BEEN STATED BY YOU IN THE NOTICE WAS BY YOUR PREDECESSOR ON EARLIER OCCASION AND THE COMPLETE DETAILS INFORMATIONS AND SUBMISSIONS HAVE BEEN PLACED ON YOUR RECORDS. THE THEN ASSESSING OFFICER HAD NOT EXAMINED THE SAID EVIDENCES AND SUBMISSIONS AND THE ASSESSMENT ORDER WAS CRANED IN MECHANICALLY AND THEREFORE THE ASSESSMENT INCOME WAS BAD IN LAW AND ONLY ON THAT ACCOUNT THE INCOME TAX APPELLATE TRIBUNAL HAD SET ASIDE THE ASS ESSMENT ORDER. 2.4 THE CONTENTS OF THE NOTICE DATED 19 TH NOVEMBER 2007 HAVE BEEN VERY CAREFULLY CONSIDERED BY OUR ABOVE NAMED CLIENT AND WE HAVE BE EN INSTRUCTED BY OUR ABOVE IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 16 NAMED CLIENT TO STATE THAT EACH AND EVERY ISSUE WER E RAISED VIDE NOTICES DATED 8 TH JULY 1996 AND 6 TH SEPTEMBER 1996 BY THE THEN ASSESSING OFFICER WHO HAD THEREAFTER FRAMED ORDER ON 30 TH SEPTEMBER 1996. EACH AND EVERY ISSUE EXACTLY IS IDENTICAL AND A SUBSTANTIAL REPRODUCTION FROM THE N OTICES DATED 8 TH JULY 1996 AND 6 TH SEPTEMBER 1996. EACH AND EVERY ISSUE WAS FULLY AND COMPLETELY EXPLAINED BY OUR ABOVE NAMED CLIENT VIDE LETTERS DATED 16 TH NOVEMBER 1995 5 TH DECEMBER 1995 15 TH FEBRUARY 1996 26 TH AUGUST 1996 9 TH SEPTEMBER 1996 23 RD SEPTEMBER 1996 25 TH SEPTEMBER 1996 27 TH SEPTEMBER 1996 AND 27 TH SEPTEMBER 1996. THE THEN ASSESSING OFFICER HAD NOT APPROPRIAT ELY CONSIDERED THE SUBMISSIONS AND EVIDENCES PLACED ON THE RECORDS AND THEREFORE ON THE INSTRUCTIONS OF OUR ABOVE NAMED CLIENT IN VIEW OF T HE ORDER PASSED BY THE INCOME TAX APPELLATE TRIBUNAL IT IS SUBMITTED THAT EACH AN D EVERY ISSUE BE NOW CONSIDERED. 2.5 ON PERUSAL OF THE ORDER PASSED BY THE INCOME TA X APPELLATE TRIBUNAL IT BECOMES ABSOLUTELY DEAR THAT YOU HAVE BEEN DIRECTED TO EXAMINE THE DETAILS AND SUBMISSIONS AND THE EVIDENCE ALREADY PLACED ON YOUR RECORDS. IT MAY BE NOTED THAT OUR ABOVE NAMED CLIENT HAS ALREADY PLACED ON Y OUR RECORDS THE DETAILED EXPLANATIONS AND EVIDENCES IN RESPECT OF EACH AND E VERY ISSUE RAISED BY YOU WHOM YOU HAVE TO BE CONSIDER IN A JUDICIOUS MANNER. WE IN THIS CONNECTION INVITE YOUR ATTENTION TO THE FOLLOWING :- (I) LETTERS DATED 16 TH NOVEMBER 1995 5 RH DECEMBER 1995 15 TH FEBRUARY 1996 26 TH AUGUST 1996 9 TH SEPTEMBER 1996 23 RD SEPTEMBER 1996 25 TH SEPTEMBER 1996 27 TH SEPTEMBER 1996 AND 27 TH SEPTEMBER 1996 PLACED ON YOUR RECORDS BY OUR ABOVE NAMED CLIENT. IT IS SUBMITTED THAT EACH AND EVERY ISSUE RAISED BY THE SAID LETTER BE EXAMINED IN THE JUDICI OUS MANNER. IT IS SUBMITTED THAT EACH AND EVERY ISSUE EXPLAINED IN THE SAID LETTER A LONG WITH THE DETAILS AND EVIDENCES BE CONSIDERED. THE LETTERS INTER ALIA DEA L WITH UNDISCLOSED INCOME AND THE LETTERS ARE EXPLAINING THE CONTENTS OF LOOSE PA PERS. (2) ATTENTION IS ALSO INVITED TO NOTES OF THE STAT EMENT OF TOTAL INCOME. IT MAY BE NOTED THAT NOTES WERE NOT CONSIDERED BY THE THEN AS SESSING OFFICER IN THE MATTER OF ALLOCATION OF THE UNDISCLOSED INCOME IN THE HANDS O F THE PARTNERS. IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 17 2.6. ON THE INSTRUCTIONS OF OUR ABOVE NAMED CLIENT WE ARE ENCLOSING HEREWITH A OF WRITTEN SUBMISSIONS PLACED ON THE RECORDS OF THE HO NBLE INCOME TAX APPELLATE TRIBUNAL. IT IS SUBMITTED THAT EACH AND EVERY SUBMI SSIONS BE CONSIDERED IN CONSONANCE WITH THE FACTS AND IN CONSONANCE WITH TH E PROVISIONS OF LAW. IT MAY BE NOTED THAT EXAMINATION AND CONSIDERATION ON YOUR PA RT IS NOT ONLY AN OBLIGATION OF LAW BUT ALSO A STATUTORY DIRECTION FROM THE INCO ME TAX APPELLATE TRIBUNAL. 2.7. OUR CLIENT UNDERSTANDS THAT SEVERAL MATERIALS INCLUDING STATEMENTS OF VARIOUS PERSONS MATERIALS CONDUCTED DURING SEARCH OPERATIO NS U/S. 132 AND POST SEARCH OPERATIONS HAVE BEEN GATHERED BY YOU. IT IS SUBMITT ED THAT IN VIEW OF SPECIFIC DIRECTIONS BY THE INCOME TAX APPELLATE TRIBUNAL EAC H AND EVERY MATERIAL WHICH IS TO BE UTILIZED AGAINST OUR CLIENT SHOULD BE PROVIDE D BY YOU AND ONLY THEREAFTER SUCH MATERIAL CAN BE USED AGAINST OUR CLIENT. SUCH MATERIAL WILL INCLUDE ALL MATERIAL BEFORE SEARCH ALL MATERIALS INCLUDING BOO KS OF ACCOUNT/DOCUMENTS PAPERS ETC. COLLECTED DURING SEARCH STATEMENT OF A LL THE PERSONS RECORDED BY THE INCOME TAX AUTHORITY REPORT OF ANY INCOME TAX AUTH ORITY (INCLUDING APPRAISED REPORT IF ANY) ALL MATERIALS COLLECTED DURING THE P OST SEARCH OPERATIONS. 11. A PERUSAL OF THE ABOVE CLEARLY SHOWS THAT THE ASSES SEE HAD SPECIFICALLY POINTED OUT TO THE A.O. THAT HIS NOTIC E IS IN COMPLETE DISREGARD TO THE DIRECTIONS OF THE TRIBUNAL. THE A. O. DID NOT CONSIDER THIS SPECIFIC OBJECTION AND PROCEEDED BY REPEATING WHAT HAS BEEN MADE IN THE ORIGINAL ASSESSMENT ORDER. 2.4 BINDING NATURE OF ORDERS OF TRIBUNAL: (1) THE FIRST APPELLATE AUTHORITY OR THE ASSESSING OFFICER IS BOUND BY THE ORDERS OF THE TRIBUNAL. EVEN WHERE THE ASSESSEE OR THE DEP ARTMENT HAS PURSUED THE MATTER IN REFERENCE PROCEEDINGS IT DOES NOT ACT AS A KIND OF STAY OF OPERATION OF THE ORDER OF THE TRIBUNAL. (2) THE ASSESSING OFFICER CANNOT IGNORE THE DECIS ION TAKEN BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE AND TAKE A CONTRARY VIEW - I TO VS. SIEMENS INDIA LTD. & IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 18 ANR. 156 ITR 11 (BOM.) 28 STC 483 SREE RAJENDRA MI LLS LTD. VS. CIT: 109 ITR 229 (CAL). RUSSELL PROPERTIES PVT. LTD. VS. A. CHOW DHURY. ADD/. CIT. WEST BENGAL & OTHERS. (3) UNION OF INDIA & ORS. VS. KAMLAKASHI FINANAEE CORPORATION LTD. AIR (1992) 711 (SC). IT CANNOT BE TOO VEHEMENTLY EMPHASIZED THAT IT IS O F UTMOST IMPORTANCE THAT IN DISPOSING OF THE QUASI-JUDICIAL ISSUES BEFORE THEM REVENUE OFFICERS ARE BOUND BY THE DECISION OF THE APPELLATE AUTHORITIES. THE ORDE R OF THE APPELLATE COLLECTOR IS BINDING ON THE ASSISTANT COLLECTORS WORKING WITHIN HIS JURISDICTION AND THE ORDER OF THE TRIBUNAL IS BINDING UPON THE ASSISTANT COLLE CTORS AND THE APPELLATE COLLECTORS WHO FUNCTION UNDER THE JURISDICTION OF T HE TRIBUNAL. THE PRINCIPLES OF JUDICIAL DISCIPLINE REQUIRE THAT THE ORDERS OF THE HIGHER APPELLATE AUTHORITIES SHOULD BE FOLLOWED UNRESERVEDLY BY THE SUBORDINATE AUTHORITIES. THE MERE FACT THAT THE ORDER OF THE APPELLATE AUTHORITY IS NOT 'A CCEPTABLE' TO THE DEPARTMENT - IN ITSELF AN OBJECTIONABLE PHRASE - AND IS THE SUBJECT MATTER OF AN APPEAL CAN FURNISH NO GROUND FOR NOT FOLLOWING IT UNLESS ITS OPERATION HAS BEEN SUSPENDED BY A COMPETENT COURT. IF THIS HEALTHY RULE IS NOT FOLLOW ED THE RESULT WILL ONLY BE UNDUE HARASSMENT TO ASSESSEE AND CHAOS IN ADMINISTRATION OF TAX LAWS. WHEN AN ORDER IS PASSED BY A HIGHER AUTHORITY THE LOWER AUTHORITY IS BOUND THEREBY KEEPING IN VIEW THE PRINCIPLES OF JUDICIAL DISCIPLINE. THIS ASPECT OF THE MATTER HAS BEEN HIGHLIGHTED BY THIS COURT IN BHOPAL SUGAR INDUSTRIES VS. INCOME TAX OFFICER. BHOPAL [AIR 1961 SC 182] IN THE FOLLOW ING TERMS (PAGE 622): (A) 'IF A SUBORDINATE TRIBUNAL REFUSES TO CARRY OUT DIR ECTIONS GIVEN TO IT BY A SUPERIOR TRIBUNAL IN THE EXERCISE OF ITS APPELLATE POWERS THE RESULT WILL BE CHAOS IN THE ADMINISTRATION OF JUSTICE AND WE HAVE INDEED FOUND IT VERY DIFFICULT TO APPRECIATE THE PROCESS OF REASONING BY WHICH THE LEARNED JUDICIAL COMMISSIONER WHILE ROUNDLY CONDEMNING THE RESPONDEN T FOR REFUSING TO CARRY OUT THE DIRECTIONS OF THE SUPERIOR TRIBUNAL YET HE LD THAT NO MANIFEST INJUSTICE RESULTED FROM SUCH REFUSAL. IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 19 (B) IT MUST BE REMEMBERED THAT THE ORDER OF THE TRIBUNA L DATED APRIL 22 1954 WAS NOT UNDER CHALLENGE BEFORE THE JUDICIAL COMMISS IONER. THAT ORDER HAD BECOME FINAL AND BINDING ON THE PARTIES AND THE RE SPONDENT COULD NOT QUESTION IT IN ANY WAY. AS A MATTER OF FACT THE COM MISSIONER OF INCOME-TAX HAD MADE AN APPLICATION FOR A REFERENCE WHICH APPL ICATION WAS SUBSEQUENTLY WITHDRAWN. THE JUDICIAL COMMISSIONER WAS NOT SITTIN G IN APPEAL OVER THE TRIBUNAL AND WE DO NOT THINK THAT IN THE CIRCUMSTA NCES OF THIS CASE IT WAS OPEN TO HIM TO SAY THAT THE ORDER OF THE TRIBUNAL W AS WRONG AND THEREFORE THERE WAS NO INJUSTICE IN DISREGARDING THAT ORDER. AS WE HAVE SAID EARLIER SUCH A VIEW IS DESTRUCTIVE OF ONE OF THE BASIC PRINCIPLE S OF THE ADMINISTRATION OF JUSTICE.' 12. CONSIDERING THE FACTS IN TOTALITY AS STOOD AT THE TIME OF ORIGINAL ASSESSMENT STAGE QUA THE DIRECTIONS OF THE TRIBUNAL QUA THE AFOREMENTIONED JUDICIAL ANALYSIS IN OUR CONSIDERED OPINION AND UNDERSTANDING OF THE LAW INCOMPLETE DISREGARD TO TH E ORDERS OF THE APPELLATE AUTHORITIES WOULD LEAVE NO CHOICE BUT TO QUASH SUCH ASSESSMENT ORDER. THEREFORE TO THIS EXTENT THE AS SESSMENT ORDER IS QUASHED. 13. THE CONTENTIONS OF THE LD. D.R. THAT THE ASSESSMENT ORDER MAY BE SET ASIDE TO THE FILES OF THE A.O. FOR FRESH ASS ESSMENT CANNOT BE ACCEPTED BECAUSE THE BLOCK PERIOD IS 01.04.1985 TO 31.03.1995 AND 01.04.1995 TO 21.09.1995. THE ORIGINAL ORDER WAS DA TED 30.09.1996 AND THE ORDER UNDER APPEAL IS DATED 26.12.2007. ALM OST NINE YEARS HAVE ELAPSED SINCE THE DATE OF THE ORDER UNDER APPE AL AND ALMOST 20 YEARS HAVE ELAPSED SINCE THE ORIGINAL ASSESSMENT OR DER. SETTING ASIDE THE ISSUE TO THE FILES OF THE A.O. WOULD AMOUNT TO MORE HARASSMENT TO THE ASSESSEE THAN ANY JUSTICE TO THE REVENUE. REVEN UE GOT TWO INNINGS BUT FAILED ON BOTH ACCOUNTS. IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 20 14. SINCE WE HAVE QUASHED THE ASSESSMENT ORDER TO THIS EXTENT; WE DO NOT FIND IT NECESSARY TO DWELL INTO THE MERITS O F THE EACH AND EVERY ADDITION WHICH ARE NOTHING BUT REPETITION OF THE OR IGINAL ASSESSMENT ORDER. 15. THE SECOND GRIEVANCE OF THE ASSESSEE RELATES TO THE ADDITION OF RS. 17 66 98 000/-. THE LD. SENIOR COUNSEL VEHEMENT LY CONTENDED THAT WHILE MAKING THIS ADDITION THE OFFICER HAS MADE CE RTAIN NEW ADDITIONS WHICH WERE NEVER THERE IN THE ORIGINAL ASSESSMENT O RDER WHICH WAS SET ASIDE BY THE TRIBUNAL WITH SPECIFIC DIRECTIONS QUA THE ADDITIONS MADE IN THE FIRST ROUND OF LITIGATION. PER CONTRA THE LD. D.R. STRONGLY CONTENDED THAT SINCE THE DIRECTION OF THE TRIBUNAL WAS TO FRA ME THE ASSESSMENT AFRESH THE A.O. WAS FREE TO MAKE NEW UNDISCLOSED I NCOME AND MAKE NEW ADDITIONS. 16. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THIS IS SUE. 17. A PERUSAL OF THE FINDINGS OF THE TRIBUNAL AS MENTIO NED ELSEWHERE WHILE SETTING ASIDE THE ORIGINAL ASSESSMENT ORDER C LEARLY SHOWS THAT THE SET ASIDE OF THE ASSESSMENT FOR FRESH CONSIDERA TION WAS ONLY TO CONSIDER THE ADDITIONS MADE BY THE A.O. AFTER CONSI DERING THE MATERIALS/DOCUMENTS/SEIZED MATERIAL AND AFTER GIVIN G A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 18. IT IS A SETTLED LAW THAT THE SCOPE OF THE PROCEEDIN GS AFTER REMAND WILL NECESSARILY HAVE TO BE DETERMINED WITH REFEREN CE TO THE TERMS OF THE ORDER WHEREBY THE APPELLATE AUTHORITY HAS REMIT TED THE CASE TO THE AO. THE AO HAS SAME POWERS IN MAKING FRESH ASSESSME NT AS HE HAD IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 21 ORIGINALLY WHEN MAKING THE ASSESSMENT ORDER U/S. 14 3 OF THE ACT. HOWEVER THIS POWER CAN BE USED ONLY WHEN THE FIRST APPELLATE AUTHORITY SET ASIDE THE ASSESSMENT AND DIRECT THE A O TO MAKE A FRESH ASSESSMENT WITHOUT IMPOSING ANY RESTRICTIONS OR LI MITATIONS AS TO HOW THE FRESH PROCEEDINGS ARE TO BE CONDUCTED BY THE AO WHICH MEANS THAT AS LONG AS NO RESTRICTIONS HAVE BEEN PLACED BY THE APPELLATE AUTHORITY ON THE SCOPE OF THE PROCEEDINGS AFTER REMAND BY DIR ECTING A FRESH ASSESSMENT TO BE MADE BY THE AO THE AO IS COMPETEN T TO REDO THE ASSESSMENT IN ACCORDANCE WITH LAW AFTER TAKING INTO ACCOUNT ALL MATTERS AND ASPECTS THAT WOULD BE RELEVANT IN MAKIN G THE ORIGINAL ASSESSMENT WHICH ALSO MEANS THAT IT IS OPEN TO THE FIRST APPELLATE AUTHORITY TO LIMIT THE SCOPE OF THE ENQUIRY BY THE AO TO ANY SPECIFIC ASPECT OR ISSUE. IT IS WELL SETTLED THAT AN APPELLA TE AUTHORITY WHILE SETTING ASIDE THE CASE CAN GIVE DIRECTIONS AND LAY DOWN LIMITS FOR THE INQUIRY TO BE MADE BY THE ASSESSING AUTHORITY. WHEN SUCH A DIRECTION IS MADE AND LIMITS ARE LAID DOWN THE POWER AND JUR ISDICTION OF THE ASSESSING AUTHORITY TO DEAL WITH THE CASE AFTER RE MAND DEPEND ON THE SPECIFICATIONS OF THE REMAND ORDER WHICH MEANS THA T THE ASSESSING OFFICER HAS NO JURISDICTION TO ENTER INTO ANY QUEST ION WHICH FALLS OUTSIDE THE LIMITS LAID DOWN. 19. IN THE CASE OF CIT VS MANSA RAM AND SONS (1991) 190 ITR 453 (ALL.) HON'BLE HIGH COURT HAS HELD THAT WHERE THE R EVISIONAL ORDER LIMITS THE AO'S JURISDICTION TO MAKE A FRESH ASSESSMENT WI TH REGARD TO ONLY TWO ITEMS THE AO HAS NO POWER TO ADD OTHER AMOUNTS OR TO MAKE OTHER ADDITIONS TO THE ASSESSEE'S INCOME. 20. A SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE M.P HI GH COURT IN THE CASE OF CIT VS HOPE TEXTILES LTD. (1997) 225 IT R 993 (MP) IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 22 WHEREIN THE HON'BLE HIGH COURT THUS HELD THAT 'THAT THE COMMISSIONER (APPEALS) HAD IN HIS REMAND ORDER MADE A CLEAR DIRE CTION TO THE ASSESSING OFFICER TO RECONSIDER THE CASE ONLY IN RE GARD TO THE MATTER RELATING TO THE DISALLOWANCE OUT OF MACHINERY REPAI RS. THE ASSESSING OFFICER HAD THEREFORE CLEARLY TRAVELLED BEYOND TH E SPECIFICATIONS OF THE REMAND ORDER IN MAKING THE ADDITIONS AND THE APPELL ATE AUTHORITIES WERE RIGHT IN DELETING THE ADDITIONS. THE ORDER OF THE TRIBUNAL WAS BASED ON A PROPER APPRECIATION OF THE SETTLED LEGAL POSITION AND DID NOT THEREFORE GIVE RISE TO ANY REFERABLE QUESTION OF LAW'. 21. A SIMILAR VIEW HAS BEEN TAKEN IN THE CASE OF CIT VS JAWAHARLAL NAGPAL (1988)171 TTR 136 (MP) IN WHICH THE COURT HAS HELD THAT 'IN THE FRESH ASSESSMENT PROCEEDINGS AFTER THE ORIGINAL ASSESSMENT HAD BEEN SET ASIDE THE A.O HAD NO JURISDICTION TO TAX NEW SOURCES OF INCOME.' 22. IN SHORT THE SCOPE OF THE FRESH ASSESSMENT FOLLOWI NG THE APPELLATE ORDER DEPENDS ON THE SUBJECT MATTER OF TH E APPEAL AND THE APPELLATE ORDER READ AS A WHOLE IN ITS PROPER CONTE XT. IF A SUBORDINATE TRIBUNAL REFUSES TO CARRY OUT DIRECTIONS GIVEN TO I T BY A SUPERIOR TRIBUNAL IN THE EXERCISE OF ITS POWERS THE RESULT WILL BE CHAOS IN THE ADMINISTRATION OF JUSTICE. THIS RATIO IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF BHOPAL SUGAR INDUSTRIE S VS ITO (1960) 40 ITR 618. NO DOUBT IN ORDER TO ATTRACT THIS PRINC IPLE IT IS NECESSARY THAT THE ORDER OF THE SUPERIOR APPELLATE AUTHORITY SHOULD BE CLEAR CERTAIN AND DEFINITE IN ITS TERMS AND WITHOUT ANY A MBIGUITY. 23. LET US NOW CONSIDER THE ABOVE DISCUSSION IN THE LI GHT OF THE ORDER OF THE TRIBUNAL WHILE DISPOSING THE ORIGINAL ASSESSMENT ORDER. A IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 23 PERUSAL OF THE FINDINGS OF THE TRIBUNAL CLEARLY SHO WS THAT THE TRIBUNAL WAS CONCERNED WITH THE ADDITIONS MADE IN THE ORIGIN AL ASSESSMENT ORDER. IN THE LIGHT OF THE ADDITIONS MADE THEREIN THE TRIBUNAL SET ASIDE THE ASSESSMENT ORDER FOR FRESH CONSIDERATION WHICH CLEARLY SHOWS THAT THE DIRECTIONS OF THE TRIBUNAL FOR FRESH ASSESSMENT WERE RESTRICTED TO THE ADDITIONS MADE BY THE A.O. IN THE ORIGINAL ASSE SSMENT ORDER. 24. WE HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER UNDE R APPEAL BEFORE US AND WE FIND THAT IN THE FRESH ASSESSMENT THE A.O. HAS TRAVELLED BEYOND THE DIRECTIONS OF THE TRIBUNAL BY MAKING THE IMPUGNED ADDITIONS WHICH WERE NOT AT ALL THERE IN T HE ORIGINAL ASSESSMENT PROCEEDINGS. 25. IN OUR CONSIDERATE VIEW THE ADDITIONS MADE BY THE A.O. WERE NOT MADE IN THE ORIGINAL ASSESSMENT AND BY MAKING S UCH ADDITION; THE A.O. HAS TRAVELLED BEYOND THE DIRECTIONS OF THE TRI BUNAL. THIS GROUND OF THE ASSESSEE DESERVES TO BE ALLOWED. ACCORDINGLY W E QUASH THE ORDER OF THE A.O. AND DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 26. CONSIDERING BOTH THE GRIEVANCES OF THE ASSESSEE IN TOTALITY IN THE LIGHT OF THE DISCUSSION HEREINABOVE THE ASSESS MENT ORDER DATED 26.12.2007 MADE U/S. 158BC R.W.S. 143(3) AND 254 OF THE ACT IS QUASHED. 27. THE APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALL OWED. IT(SS)A NO. 24/AHD/2008 . B.P. 01-04- 1985 TO 31-03-1995 & 01-041995 T O 21-09-1995 24 28. BEFORE PARTING AS MENTIONED ELSEWHERE SINCE WE HA VE QUASHED THE ASSESSMENT ORDER WE DO NOT FIND IT NECESSARY TO GO INTO THE MERITS OF EACH AND EVERY ADDITION MADE BY THE A.O. AND FOR SI MILAR REASONS WE DO NOT FIND IT NECESSARY TO DISCUSS THE JUDICIAL DE CISIONS RELIED UPON BY THE RIVAL PARTIES. ORDER PRONOUNCED IN OPEN COURT ON 30 - 09- 201 6. SD/- SD/- (S. S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AHME DABAD