Shri Paresh P.Sharma L/h. of Late P.G.Sharma,, Baroda v. The ACIT., Cent.Circle-2,, Baroda

ITSSA 42/AHD/2005 | misc
Pronouncement Date: 06-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 4220516 RSA 2005
Bench Ahmedabad
Appeal Number ITSSA 42/AHD/2005
Duration Of Justice 4 year(s) 10 month(s) 6 day(s)
Appellant Shri Paresh P.Sharma L/h. of Late P.G.Sharma,, Baroda
Respondent The ACIT., Cent.Circle-2,, Baroda
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 06-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 06-01-2010
Date Of Final Hearing 05-01-2010
Next Hearing Date 05-01-2010
Assessment Year misc
Appeal Filed On 28-02-2005
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD - AHMEDABAD D BENCH (BEFORE DR.O.K. NARAYANAN VICE-PRESIDENT AND SHRI MAHAVIR SINGH JUDICIAL MEMBER) IT(SS)A NO.42/AHD/2005 [BLOCK PEREIOD FROM 1-4-1989 TO 6-8-1999] LATE SHRI PURANCHAND G. SHARMA BY HIS LEGAL HEIR PARESH SHARMA D-38 ANANDVAN SOCIETY MAKARPURA BARODA. VS. ACIT CENT.CIR.2 BARODA. IT(SS)A NO.49/AHD/2005 [BLOCK PERIOD FROM 1-4-1989 TO 6-8-1999] ITO WARD-2(2) BARODA. VS. LATE PURANCHAND G. SHARMA D-38 ANANDWAN SOCIETY MAKARPURA BARODA. ASSESSEE BY : NONE REVENUE BY : SHRI B.S.SANDHU DATE OF ORDER RESERVED : 05-01-2010 O R D E R PER DR. O.K. NARAYANAN VICE-PRESIDENT : THESE APPEALS ARE CROSS-APPEALS FILED BY THE ASSESSEE AND THE REV ENUE. THESE CROSS- APPEALS ARISE OUT OF THE BLOCK ASSESSMENT COMPLETED UNDER SECTION 158BC OF THE INCOME TAX ACT 1961. THEY ARE DIRECTED AGAI NST THE ORDER OF THE CIT(A)-IV AHMEDABAD DATED 30-11-2004. 2. WHEN THESE MATTERS WERE CALLED ON FOR HEARING N OBODY WAS PRESENT FOR THE ASSESSEE IN SPITE OF NOTICE. IN THIS CIRCU MSTANCE WE PROCEED TO DISPOSE OF THE MATTER EX- PARTE QUA THE ASSESSEE. WE HEARD SHRI B.S.SANDHU THE LEARNED COMMISSIONER OF INCOME-TAX APPEARING FOR THE REVENUE. PAGE - 2 IT(SS)A NO.42 AND 49/AHD/2005 -2- 3. THE FIRST AND FOREMOST GROUND RAISED BY THE REVE NUE IN ITS APPEAL IS THAT THE CIT(A) HAS VIOLATED RULE 46A OF INCOME TAX RULES 1962 IN ADMITTING FRESH EVIDENCE AND ADJUDICATING THE ISSUE S IN FAVOUR OF THE ASSESSEE. IT IS SPECIFICALLY ARGUED BY THE REVENUE THAT THE CIT(A) HAS ACCEPTED THE CASH FLOW STATEMENT FURNISHED BY THE A SSESSEE IN THE COURSE OF APPELLATE PROCEEDINGS WHICH WAS NOT AVAILABLE TO THE AO WHILE FRAMING THE BLOCK ASSESSMENT. 4. WE CONSIDERED THIS CRUCIAL GROUND IN A DETAILED MANNER. IT IS A FACT THAT THE CIT(A) HAS ACCEPTED THE CASH FLOW STATEMEN T FURNISHED BY THE ASSESSEE AS A PIECE OF ADDITIONAL EVIDENCE. THE CI T(A) HAS ANNEXED THE SAID CASH FLOW STATEMENT TO HIS APPELLATE ORDER. T HE CIT(A) HAS ACCEPTED THE CONTENTIONS OF THE ASSESSEE ON VARIOUS ADDITION S IN THE LIGHT OF THE SAID CASH FLOW STATEMENT. IN OTHER WORDS THE EXPLANATI ONS OFFERED BY THE ASSESSEE IN RESPECT OF VARIOUS ADDITIONS WERE ACCEP TED BY THE CIT(A) ONLY ON THE BASIS OF THE CASH FLOW STATEMENT WHICH SHOWS THAT THE CASH FLOW STATEMENT WAS CRUCIAL IN ARRIVING AT THE UNDISCLOSE D INCOME ATTRIBUTABLE TO THE ASSESSEE. AT THE SAME TIME THE SAID CASH FLOW STATEMENT WAS NOT AVAILABLE TO THE AO SO THAT EITHER HE COULD AGREE W ITH THE ASSESSEE OR HE COULD DECLINE THE ARGUMENTS OF THE ASSESSEE. THERE FORE THERE IS A GROSS VIOLATION OF NATURAL JUSTICE WHICH HAS CAUSED PREJU DICE TO THE REVENUE. IN THESE CIRCUMSTANCES IT IS NOT POSSIBLE FOR US TO U PHOLD THE ORDER OF THE CIT(A). 5. IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE A RE OF THE CONSIDERED VIEW THAT THE MATTERS HAVE TO BE LOOKED INTO AFRESH AFTER HEARING THE AO ON THE CASH FLOW STATEMENT FILED BY THE ASSESSEE. THE CIT(A) MAY EITHER ASK FOR THE APPEARANCE OF THE AO BEFORE HIM OR CALL FOR REMAND REPORT OF PAGE - 3 IT(SS)A NO.42 AND 49/AHD/2005 -3- THE AO ON THE BASIS OF THE CASH FLOW STATEMENT FURN ISHED BY THE ASSESSEE. THE CIT(A) IS DIRECTED TO RE-ADJUDICATE THE FIRST A PPEAL AFTER OBSERVING THE ABOVE PROCEDURE. AS A CONSEQUENCE THE FILE IS REM ITTED BACK TO THE CIT(A) FOR FRESH DISPOSAL OF THE FIRST APPEAL IN AC CORDANCE WITH LAW. 6. IN RESULT THESE CROSS-APPEALS ARE TREATED AS PAR TLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY THIS SIXTH DAY OF JAN UARY 2010. SD/- SD/- (MAHAVIR SINGH) JUDICIAL MEMBER (DR.O.K. NARAYANAN) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 06-01-2010 COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR ITAT AHMEDABAD