Shri Bharatbhai Prabhudas Patel, Gandhinagar v. The Dy.CIT.,Cent.Circle-1(2),, Ahmedabad

ITSSA 767/AHD/2010 | 1999-2000
Pronouncement Date: 25-10-2013 | Result: Partly Allowed

Appeal Details

RSA Number 76720516 RSA 2010
Assessee PAN AHAPP7427P
Bench Ahmedabad
Appeal Number ITSSA 767/AHD/2010
Duration Of Justice 2 year(s) 11 month(s) 26 day(s)
Appellant Shri Bharatbhai Prabhudas Patel, Gandhinagar
Respondent The Dy.CIT.,Cent.Circle-1(2),, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 25-10-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 25-10-2013
Date Of Final Hearing 14-10-2013
Next Hearing Date 14-10-2013
Assessment Year 1999-2000
Appeal Filed On 29-10-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BENCH AHMEDABAD .. ! ! ! ! ' #$ BEFORE SHRI N.S. SAINI ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICIAL MEMBER APPEAL(S) BY APPELLANT VS. RESPONDENT SL. NO(S) IT(SS)A NO(S) ASSESSMENT YEAR(S) APPELLANT (S) RESPONDENT(S) 1. 767/AHD/2010 1999-2000 SHRI BHARATBHAI PRABHUDAS PATEL 36 MARUTI SOCIETY MOTERA GANDHINAGAR PAN:AHAPP 7427P DCIT CENTRAL CIRCLE-1(2) AHMEDABAD 2. 768/AHD/2010 2003-04 -DO-ASSESSEE DO-REVENUE 3. 769/AHD/2010 2004-05 ASSESSEE REVENUE 4. 770/AHD/2010 2005-06 ASSESSEE REVENUE ASSESSEE BY : SHRI VIJAY RANJAN A.R. REVENUE BY : SHRI SUBHASH BAINS CIT-DR ' % & $' / / / / DATE OF HEARING : 14/10/2013 )*+ & $' / DATE OF PRONOUNCEMENT : 25/10/2013 / O R D E R PER SHRI KUL BHARAT JUDICIAL MEMBER : THESE FOUR APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST THE SEPARATE ORDERS OF THE LD.COMMISSIONER OF INCOME TA X(APPEALS)-I AHMEDABAD (CIT(A) FOR SHORT) ALL DATED 16/08/2010 PERTAINI NG TO ASSESSMENT YEARS (AYS) 1999-2000 2003-04 TO 2005-0 6. SINCE COMMON GROUNDS ARE INVOLVED THESE APPEALS WERE HE ARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS CONSOLIDATED O RDER FOR THE SAKE OF CONVENIENCE. IT(SS)A NOS.767 TO 770/AH D/2010 SHRI BHARATBHAI PRABHUDAS PATEL VS. DCIT AYS 1999-2000 2003-04 TO 2005-06 RESPECTIVELY - 2 - 2. FIRST WE TAKE UP THE ASSESSEES APPEAL I.E. IT (SS)A NO.767/AHD/2010 FOR AY 1999-2000 AS A LEAD CASE. T HE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT ACCEPTING APPELLANTS GROUND OF APPEAL THAT THE LEA RNED ASSESSING OFFICER HAS LEGALLY ERRED IN FRAMING ASSESSMENTS U/S.153C O F THE ACT. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE ORDER PASSED BY CIT(A) IS BAD IN LAW AND DESERVES T O BE CANCELLED AS HE AHS PASSED AN ORDER WITHOUT PROPERLY CONSIDERING AN D APPRECIATING THE FACTS OF CASE OF APPELLANT. 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT APPRECIATING THE FACT THAT ASSESSING OFFICER HAS PA SSED AN ASSESSMENT ORDER U/S.144 OF THE ACT BEFORE THE DATE OF HEARING FIXED IN NOTICE ISSUED BY HIM AND EVEN ON THIS GROUND ASSESSMENT ORDER PA SSED BY ASSESSING OFFICER IS BAD IN LAW AND RE1UIRES TO BE QUASHED. 4. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE A DDITION OF RS.5 50 000- IN RESPECT OF AMOUNT RECEIVED FROM SHR I VIKAS A.SHAH WITHOUT APPRECIATING THAT THE IMPUGNED SUM OF RS.5 50 000 WAS NOT AT ALL RECEIVED BY APPELLANT AS NO TRANSACTIONS WAS MADE B Y APPELLANT. 5. IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT SINCE IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE THERE WA S NO BASIS WARRANT OR JUSTIFICATION FOR INITIATING THE PENALTY PROCEEDING S U/S.271(1)(C) THE LEARNED ASSESSING OFFICER MAY BE DIRECTED TO DROP T HE SAME. 6. THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND AND /OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 2.1. AT THE OUTSET LD.COUNSEL FOR THE ASSESSEE SUB MITTED THAT HE DOES NOT WISH TO PRESS GROUND NO.1 AND THEREFORE THE SAME IS DISMISSED AS NOT PRESSED. 3. BRIEFLY STATED FACTS ARE THAT A SEARCH OPERATIO N U/S.132(2) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS T HE ACT) WAS CONDUCTED ON VIKAS A.SHAH AND VARIOUS DOCUMENTS/BOO KS OF IT(SS)A NOS.767 TO 770/AH D/2010 SHRI BHARATBHAI PRABHUDAS PATEL VS. DCIT AYS 1999-2000 2003-04 TO 2005-06 RESPECTIVELY - 3 - ACCOUNT/OTHER VALUABLE ARTICLES/OTHER THINGS WERE F OUND AND SEIZED FROM THE VEHICLE NO.GJ1 HF 251 (STATION VAN TOYOTA CAR OWNED AND CLAIMED BY VIKAS A.SHAH. CERTAIN DOCUMENTS RELATING TO ASS ESSEE WERE FOUND AND SEIZED FROM THE SAID VEHICLE OWNED BY SHRI VIKASH S HAH. CONSEQUENTLY PROCEEDINGS U/S.153C R.W.S.153A OF THE ACT WERE INI TIATED IN THE CASE OF THE ASSESSEE. THE AO MADE ASSESSMENT U/S.153 R.W.S .153A(B) R.W.S. 144 OF THE IT ACT. AGAINST THE ASSESSMENT ORDER THE ASSESSEE FILED APPEAL BY TAKING VARIOUS GROUNDS BEFORE THE LD.CIT(A) WHO AF TER CONSIDERING THE SUBMISSIONS DISMISSED THE APPEAL OF THE ASSESSEE. 4. NOW THE ASSESSEE IS IN APPEAL(S) BEFORE THIS TR IBUNAL. THE LD.COUNSEL FOR THE ASSESSEE SHRI VIJAY RANJAN VEHEM ENTLY ARGUED THAT THE ASSESSEE WAS NOT AFFORDED SUFFICIENT OPPORTUNITY BY THE AO. HE FURTHER SUBMITTED THAT THE ENTIRE ADDITIONS HAVE BEEN MADE ON THE BASIS OF THE STATEMENT OF SHRI VIKAS A.SHAH. HE SUBMITTED THA T THE DOCUMENTS WERE SEIZED BY THE DEPARTMENT FROM THE CAR OWNED BY SHRI VIKAS SHAH. THE AO DID NOT AFFORD OPPORTUNITY TO CROSS-EXAMINE THE SAID PERSON SHRI VIKAS A.SHAH. HE FURTHER SUBMITTED THAT IT IS BORN E OUT OF THE RECORD THAT THE ASSESSEE WAS NOT GIVEN SUFFICIENT OPPORTUNITY B Y THE AO. HE DREW OUR ATTENTION TOWARDS PAPER-BOOK AT PAGE NO.1 WHER EIN A NOTICE U/S.142(1) OF THE ACT FOR THE ASST.YEARS 1999-2000 TO 2005-06 IS ENCLOSED. LD.COUNSEL FOR THE ASSESSEE SUBMITTED TH AT IN RESPONSE TO THE SAID NOTICE DATED 24/11/2006 A DETAILED REPLY DATE D 15/12/2006 WAS FILED BUT THE SAID REPLY WAS NOT CONSIDERED BY THE AO. H E SUBMITTED THAT THE ASSESSEE WAS NOT AWARE THAT THE ASSESSMENT ORDER HA S ALREADY BEEN PASSED BY THE AO. HE FURTHER SUBMITTED THAT AS PER THE L ETTER DATED 24/11/2006 IT(SS)A NOS.767 TO 770/AH D/2010 SHRI BHARATBHAI PRABHUDAS PATEL VS. DCIT AYS 1999-2000 2003-04 TO 2005-06 RESPECTIVELY - 4 - THE ASSESSEE WAS REQUIRED TO MAKE THE SUBMISSION ON OR BEFORE 30/11/2006 BUT THE DATE 30/11/2006 WAS STRUCK OFF A ND A DATE 4/12/2006 WAS MENTIONED IN THE NOTICE. AN AFFIDAVIT TO THIS EFFECT HAS BEEN PLACED ON RECORD. THE LD.COUNSEL FOR THE ASSESSEE HEAVILY PLACED DECISION OF HONBLE APEX COURT RENDERED IN THE CASE OF KISHINCH AND CHELLARAM VS. CIT REPORTED AT 125 ITR 713(SC) :: (1980) 4 TAXMAN 29 (SC) AND DECISION(S) OF HONBLE JURISDICTIONAL HIGH COURT R ENDERED IN THE CASE OF HEIRS AND LEGAL REPRESENTATIVES OF LATE LAXMANBHAI S.PATEL VS. CIT REPORTED AT 327 ITR 290 (GUJ.) :: (2008) 174 TAXMAN 206 (GUJ.) AND IN THE CASE OF CIT-V VS. INDRAJIT SINGH SURI REPORTED AT (2013) 33 TAXMANN.COM 281 (GUJARAT). ON THE CONTRARY CIT-DR SHRI SUBHASH BAINS SUBMITTED THAT VARIOUS OPPORTUNITIES WERE GRA NTED TO THE ASSESSEE BUT ASSESSEE CHOSE NOT TO APPEAR BEFORE THE AO THE REFORE THERE WAS NO OCCASION TO GRANT CROSS-EXAMINATION TO THE ASSESSEE . HE SUBMITTED THAT THE ONUS WAS UPON THE ASSESSEE TO APPEAR BEFORE THE AO TO EXPLAIN IN RESPECT OF ALL THE DOCUMENTS SEIZED FROM THE VEHICL E OWNED BY SHRI VIKAS A.SHAH. HE SUBMITTED THAT HE ASSESSEE CANNOT BE G RANTED RELIEF OF CROSS- EXAMINATION AT THIS BELATED STAGE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENTS CITED BEFORE US BY THE LD .COUNSEL FOR THE ASSESSEE. THE UNDISPUTED FACT EMERGES OUT OF THE R ECORD THAT A NOTICE U/S.142(1) OF THE ACT WAS SERVED UPON THE ASSESSEE ON 24/11/2006 CALLING UPON THE ASSESSEE TO FURNISH THE DETAILS AS MENTION ED IN THE SAID NOTICE. AS PER NOTICE ENCLOSED IN THE PAPER-BOOK SUCH INFO RMATION WAS REQUIRED IT(SS)A NOS.767 TO 770/AH D/2010 SHRI BHARATBHAI PRABHUDAS PATEL VS. DCIT AYS 1999-2000 2003-04 TO 2005-06 RESPECTIVELY - 5 - TO BE SUBMITTED ON OR BEFORE 04/12/2006. ACCORDING TO REVENUE SUCH INFORMATION WAS REQUIRED TO BE SUBMITTED ON OR BEFO RE 28/11/2006. THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS TH AT ADDITION HAS BEEN MADE ON THE BASIS OF CERTAIN DOCUMENTS SEIZED FROM THE VEHICLE OF SHRI VIKAS A.SHAH AND THE STATEMENT RECORDED. THE AO NE ITHER SOUGHT ANY SPECIFIC INFORMATION BEFORE THE DATE OF 24/11/2006 NOR ANY OPPORTUNITY OF CROSS-EXAMINATION WAS GIVEN TO THE ASSESSEE. IT IS ALSO CONTENDED THAT THE LD.CIT(A) DECLINED TO ACCEPT THE REQUEST OF THE ASSESSEE TO GRANT HIM AN OPPORTUNITY OF CROSS-EXAMINATION OR EVEN THE R EPLY FILED ON 15/12/2006 WAS NOT CONSIDERED BY THE LD.CIT(A). FROM THE RECORDS AS SUBMITTED BEFORE US IT IS TRANSPIRED THAT THE AUTH ORITIES BELOW HAVE NOT GIVEN OPPORTUNITY OF CROSS-EXAMINATION TO THE ASSES SEE WHICH IS CONTRARY TO THE LAW LAID DOWN BY THE HONBLE GUJARAT HIGH CO URT AND THE HONBLE APEX COURT IN THE CASE OF KISHINCHAND CEHLLARAM VS. CIT (SUPRA). THE HONBLE APEX COURT IN THE CASE OF KISHINCHAND CHELL ARAM HAS HELD AS UNDER: 1. THE LETTERS DATED 14-2-1955 AND 9-3-1959 DID NTO CONSTITUTE ANY MATERIAL EVIDENCE WHICH THE TRIBUNAL COULD LEGI TIMATELY TAKE INTO ACCOUNT FOR THE PURPOSE OF ARRIVING AT THE FIN DING THAT THE AMOUNT OF RS.1 07 350 WAS REMITTED BY THE ASSESSEE FROM ITS MADRAS OFFICE AND IF THESE TWO LETTERS WERE ELIMIN ATED FROM CONSIDERATION THERE WAS NO MATERIAL EVIDENCE AT AL L BEFORE THE TRIBUNAL WHICH COULD SUPPORT ITS FINDING. WHAT THE MANAGER OF THE BANK WROTE IN HIS LETTERS COULD NOT POSSIBLY BE BAS ED ON HIS PERSONAL KNOWLEDGE BUT WAS BASED ON HERE SAY. THE REVENUE AUTHORITIES OUGHT TO HAVE CALLED UPON THE MANAGER T O PRODUCE THE DOCUMENTS AND PAPERS ON THE BASIS OF WHICH HE MADE THE STATEMENT AND CONFRONTED THE ASSESSEE WITH THOSE DOCUMENTS AN D PAPERS. NO EXPLANATION HAS BEEN FURNISHED BY THE REVENUE AS TO WHAT HAPPENED WHEN THE MANAGER APPEARED IN OBEDIENCE TO THE SUMMONS AND WHAT STATEMENT HE MADE. IT(SS)A NOS.767 TO 770/AH D/2010 SHRI BHARATBHAI PRABHUDAS PATEL VS. DCIT AYS 1999-2000 2003-04 TO 2005-06 RESPECTIVELY - 6 - 5.1. IN THE CASE OF HEIRS AND LEGAL REPRESENTATIVES OF LATE LAXMANBHAI S.PATEL VS. CIT(SUPRA) THE HONBLE GUJARAT HIGH CO URT HELD AS UNDER:- 24. THE LEGAL EFFECT OF THE STATEMENT RECORDED B EHIND THE BACK OF THE ASSESSEE AND WITHOUT FURNISHING THE COPY THE REOF TO THE ASSESSEE OR WITHOUT GIVING AN OPPORTUNITY OF CROSS- EXAMINATION IF THE ADDITION IS MADE THE SAME IS REQUIRED TO BE DE FECTED ON THE GROUND OF VIOLATION OF THE PRINCIPLES OF NATURAL JU STICE. THIS IS CLEARLY STATED BY THE HONBLE SUPREME COURT IN THE CASE OF KISHINCHAND CELLARAM (SUPRA) WHEREIN IT IS STATED T HAT BEFORE THE INCOME-TAX AUTHORITIES COULD RELY UPON IT THEY WER E BOUND TO PRODUCE IT BEFORE THE ASSESSEE SO THAT THE ASSESSEE COULD CONTROVERT THE STATEMENTS CONTAINED IN IT BY ASKING FOR AN OPP ORTUNITY TO CROSS-EXAMINE. EXCEPT THE STATEMENT OF SHRI KANTIL AL M.PATEL AND SHRI RAMESHBHAI THERE WAS NO OTHER EVIDENCE AVAILA BLE WITH THE DEPARTMENT. A COPY OF THE STATEMENT OF SHRI RAMESH BHAI WAS NOT GIVEN NOR AN OPPORTUNITY OF CROSS-EXAMINING THE SAI D SHRI RAMESHBHAI WAS GIVEN TO THE ASSESSEE. SHRI KANTILA L M.PATEL HAS SUBSEQUENTLY RETRACTED HIS STATEMENT. EVEN AFTER R ETRACTION HE ALONG WITH TWO OTHER PARTNERS HAD FILED DISCLOSURE PETITION DISCLOSING THIS VERY AMOUNT IN THE SAID DISCLOSURE PETITION. THE ASSESSEES STATEMENT WAS RECORDED BY THE ASSESSING OFFICER AND SOME DISCREPANCIES WERE POINTED OUT BUT MERELY ON T HE BASIS OF SUCH DISCREPANCIES ONE WOULD NOT JUMP TO THE CONCL USION THAT HE IS A HABITUAL LIER AND ALL SORTS OF ADVERSE PRESUMP TIONS CAN BE DRAWN AGAINST HIM. THE DEPARTMENT HAS CLEARLY FAIL ED TO ESTABLISH ANY NEXUS BETWEEN THE ALLEGED PROMISSORY NOTE AND T HE AMOUNT SAID TO HAVE BEEN GIVEN BY THE ASSESSEE TO THE SAID SHRI KANTILAL M.PATEL. 5.2. IN THE CASE OF CIT-V VS. INDRAJIT SINGH SURI (SUPRA) THE HONBLE GUJARAT HIGH COURT HELD AS UNDER:- 6. WE ARE IN COMPLETE AGREEMENT WITH THE FINDIN GS OF THE TRIBUNAL THAT THE ASSESSING OFFICER HAD LARGELY PRO CEEDED ON THE BASIS OF THE STATEMENT OF ONE SHRI GAJJAR IN WHOSE BOOKS OF ACCOUNT THE SAID TRANSACTION OF NINAD CO-OP.HOUSIN G SOCIETY HAD IT(SS)A NOS.767 TO 770/AH D/2010 SHRI BHARATBHAI PRABHUDAS PATEL VS. DCIT AYS 1999-2000 2003-04 TO 2005-06 RESPECTIVELY - 7 - EMERGED. IT FURTHER APPEARS THAT NO OPPORTUNITY OF CROSS EXAMINATION OF SHRI GAJJAR THOUGH REQUESTED FOR W AS GRANTED BY THE ASSESSING OFFICER. CUMULATIVELY THUS WHEN TH E TRIBUNAL FOUND THAT THERE WAS VIOLATION OF PRINCIPLES OF NAT URAL JUSTICE BY NOT ALLOWING CROSS EXAMINATION DESPITE SUCH REQUEST COUPLED WITH ABSENCE OF ANY EVIDENCE NO ERROR MUCH LESS ANY SUB STANTIAL ERROR IS COMMITTED BY THE TRIBUNAL IN DELETING THE SAID A MOUNT. THIS ISSUE THEREFORE REQUIRES NO FURTHER CONSIDERATION . 6. IN OUR CONSIDERED VIEW THE AO AND THE LD.CIT(A) BOTH HAVE ERRED IN NOT GRANTING THE OPPORTUNITY TO THE ASSESSEE OF CROSS-EXAMINATION AND TO REBUT THE EVIDENCES COLLECTED BY THE REVENUE DUR ING SEARCH OPERATION CONDUCTED ON THE THIRTY PARTY AND FROM THE POSSESSI ON OF THE THIRTY PARTY. IN OUR CONSIDERED VIEW THE REVENUE OUGHT TO HAVE GI VEN OPPORTUNITY TO THE ASSESSEE FOR CROSS-EXAMINATION THE THIRD PARTY IN THE INTEREST OF PRINCIPLES OF NATURAL JUSTICE. THEREFORE RESPECTF ULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT AND THE HONBLE APEX COURT IN THE AFORESAID JUDGEMENTS AND TO MEET THE ENDS OF JUSTICE WE HEREBY SET ASIDE THE ORDER OF THE LD.CIT(A) AND THE MATTER IS RESTORED BACK TO THE FILE OF AO FOR DE NOVO ASSESSMENT. THE AO SHALL GIVE REASONABLE OPPORTUNITY OF HEARING AND CROSS-EXAMINA TION AFTER CONSIDERING THE MATERIAL PLACED BEFORE HIM. THE REFORE GROUND NOS.2 TO 6 ARE TREATED AS PARTLY ALLOWED BUT FOR STATIS TICAL PURPOSES. 7. IN THE RESULT ASSESSEES APPEAL I.E. IT(SS)A N O.767/AHD/2010 FOR AY 1999-2000 IS PARTLY ALLOWED FOR STATISTICAL PURP OSES ONLY. 8. NOW WE TAKE UP THE REMAINING THREE APPEALS OF T HE ASSESSEE I.E. IT(SS)A NOS.768 769 & 770/AHD/2010 FOR AYS 2003-04 TO 2005-06 RESPECTIVELY. IN THESE APPEALS THE FOLLOWING GROU NDS HAVE BEEN RAISED BY THE ASSESSEE: IT(SS)A NOS.767 TO 770/AH D/2010 SHRI BHARATBHAI PRABHUDAS PATEL VS. DCIT AYS 1999-2000 2003-04 TO 2005-06 RESPECTIVELY - 8 - IT(SS)A NO.768/AHD/2010 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT ACCEPTING APPELLANTS GROUND OF APPEAL THAT THE LEA RNED ASSESSING OFFICER HAS LEGALLY ERRED IN FRAMING ASSESSMENTS U/S.153C O F THE ACT. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT APPRECIATING THE SUBMISSION BEFORE HIM THAT THE ASS ESSMENT ORDER U/S.153C PASSED BY THE ASSESSING OFFICER WAS BAD IN LAW PARTICULARLY WHEN IT WAS PASSED WITHOUT PROVIDING ADEQUATE OPPOR TUNITY AND THAT HE MADE ADDITIONS WHICH WERE NOT FORMING PART OF NOTIC E U/S.142(1). 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE ORDER PASSED BY CIT(A) IS BAD IN LAW AND DESERVES T O BE CANCELLED AS HE HAS PASSED AN ORDER WITHOUT PROPERLY CONSIDERING AN D APPRECIATING THE FACTS OF CASE OF APPELLANT. 4. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT APPRECIATING THE FACT THAT ASSESSING OFFICER HAS PA SSED AN ASSESSMENT ORDER U/S.144 OF THE ACT BEFORE THE DATE OF HEARING FIXED IN NOTICE ISSUED BY HIM AND EVEN ON THIS GROUND ASSESSMENT ORDER PA SSED BY ASSESSING OFFICER IS BAD IN LAW AND REQUIRES TO BE QUASHED. 5. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE A DDITION OF RS.8 50 000 BEING ALLEGED UNACCOUNTED INCOME FROM BROKERAGE FRO M SHRI VIKAS A.SHAH WITHOUT APPRECIATING THAT THE IMPUGNED SUM O F RS.8 50 000 WAS NOT AT ALL RECEIVED BY APPELLANT AS NO TRANSACTIONS WAS MADE BY APPELLANT. 6. IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT SINCE IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE THERE WA S NO BASIS WARRANT OR JUSTIFICATION FOR INITIATING THE PENALTY PROCEEDING S U/S.271(1)(C) THE LEARNED ASSESSING OFFICER MAY BE DIRECTED TO DROP T HE SAME. 7. THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND AND /OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. IT(SS)A NO.769/AHD/2010 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT ACCEPTING APPELLANTS GROUND OF APPEAL THAT THE LEA RNED ASSESSING OFFICER HAS LEGALLY ERRED IN FRAMING ASSESSMENTS U/S.153C O F THE ACT. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT APPRECIATING THE SUBMISSION BEFORE HIM THAT THE ASS ESSMENT ORDER IT(SS)A NOS.767 TO 770/AH D/2010 SHRI BHARATBHAI PRABHUDAS PATEL VS. DCIT AYS 1999-2000 2003-04 TO 2005-06 RESPECTIVELY - 9 - U/S.153C PASSED BY THE ASSESSING OFFICER WAS BAD IN LAW PARTICULARLY WHEN IT WAS PASSED WITHOUT PROVIDING ADEQUATE OPPOR TUNITY AND THAT HE MADE MAJOR ADDITIONS WHICH WERE NOT FORMING PART O F NOTICE U/S.142(1). 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE ORDER PASSED BY CIT(A) IS BAD IN LAW AND DESERVES T O BE CANCELLED AS HE HAS PASSED AN ORDER WITHOUT PROPERLY CONSIDERING AN D APPRECIATING THE FACTS OF CASE OF APPELLANT. 4. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT APPRECIATING THE FACT THAT ASSESSING OFFICER HAS PA SSED AN ASSESSMENT ORDER U/S.144 OF THE ACT BEFORE THE DATE OF HEARING FIXED IN NOTICE ISSUED BY HIM AND EVEN ON THIS GROUND ASSESSMENT ORDER PA SSED BY ASSESSING OFFICER IS BAD IN LAW AND REQUIRES TO BE QUASHED. 5. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE A DDITION OF RS.15 71 000 BEING ALLEGED UNACCOUNTED INCOME FRO M BROKERAGE FROM SHRI VIKAS A.SHAH WITHOUT APPRECIATING THAT THE IMP UGNED SUM OF RS.15 71 000 WAS NOT AT ALL RECEIVED BY APPELLANT A S NO TRANSACTIONS WAS MADE BY APPELLANT. 6. IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE A DDITION OF 4 27 000 BEING UNACCOUNTED INVESTMENT/EXPENDITURE WHEN NO S UCH ADDITION IS CALLED FOR. 7. WITHOUT PREJUDICE TO WHAT IS STATED HEREINABOVE TH E LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT BOTH ALLEGED UNACCOU NTED INCOME AND UNACCOUNTED EXPENDITURE/INVESTMENT CANNOT BE TAXED IN THE HANDS OF APPELLANT. THE LD.CIT(A) OUGHT TO HAVE DELETED ADD ITION OF RS.4 27 000 BEING APPLICATION OUT OF ALLEGED UNACCOUNTED INCOME . 8. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING ADDIT ION OF RS.3 19 000 BEING UNACCOUNTED INVESTMENT THOUGH PROPOSED BY ASS ESSING OFFICER BUT NOT MADE ON THE GROUND THAT SUCH UNACCOUNTED INVEST MENT IS MET OUT OF UNACCOUNTED INCOME. 9. IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT SINCE IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE THERE WA S NO BASIS WARRANT OR JUSTIFICATION FOR INITIATING THE PENALTY PROCEEDING S U/S.271(1)(C) THE LEARNED ASSESSING OFFICER MAY BE DIRECTED TO DROP T HE SAME. 10. THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND AND /OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. IT(SS)A NO.770/AHD/2010 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT IT(SS)A NOS.767 TO 770/AH D/2010 SHRI BHARATBHAI PRABHUDAS PATEL VS. DCIT AYS 1999-2000 2003-04 TO 2005-06 RESPECTIVELY - 10 - ACCEPTING APPELLANTS GROUND OF APPEAL THAT THE LEA RNED ASSESSING OFFICER HAS LEGALLY ERRED IN FRAMING ASSESSMENTS U/S.153C O F THE ACT. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT APPRECIATING THE SUBMISSION BEFORE HIM THAT THE ASS ESSMENT ORDER U/S.153C PASSED BY THE ASSESSING OFFICER WAS BAD IN LAW PARTICULARLY WHEN IT WAS PASSED WITHOUT PROVIDING ADEQUATE OPPOR TUNITY AND THAT HE MADE CERTAIN ADDITIONS WHICH WERE NOT FORMING PART OF NOTICE U/S.142(1). 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE ORDER PASSED BY CIT(A) IS BAD IN LAW AND DESERVES T O BE CANCELLED AS HE HAS PASSED AN ORDER WITHOUT PROPERLY CONSIDERING AN D APPRECIATING THE FACTS OF CASE OF APPELLANT. 4. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN NOT APPRECIATING THE FACT THAT ASSESSING OFFICER HAS PA SSED AN ASSESSMENT ORDER U/S.144 OF THE ACT BEFORE THE DATE OF HEARING FIXED IN NOTICE ISSUED BY HIM AND EVEN ON THIS GROUND ASSESSMENT ORDER PA SSED BY ASSESSING OFFICER IS BAD IN LAW AND REQUIRES TO BE QUASHED. 5. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE A DDITION OF RS.15 71 000 BEING ALLEGED UNACCOUNTED INVESTMENT /EXPENDITURE WITHOUT APPRECIATING THE FACT THAT NO SUCH PAYMENT HAS BEEN MADE BY APPELLANT AND ADDITION MADE BY AO DESERVES TO BE DELETED. 6. IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE A DDITION OF RS.37 50 000 BEING UNACCOUNTED RECEIPT OR INCOME TH OUGH PROPOSED BY ASSESSING OFFICER BUT NOT MADE ON THE GROUND THAT S UCH UNACCOUNTED INCOME IS LOWER THAN ADDITION MADE FOR UNACCOUNTED INVESTMENT/EXPENDITURE. THE LEARNED CIT(A) OUGHT T O HAVE APPRECIATED THAT SUCH ALLEGED INCOME HAS NOT AT ALL RECEIVED BY APPELLANT. 7. IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT SINCE IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE THERE WA S NO BASIS WARRANT OR JUSTIFICATION FOR INITIATING THE PENALTY PROCEEDING S U/S.271(1)(C) THE LEARNED ASSESSING OFFICER MAY BE DIRECTED TO DROP T HE SAME. 8. THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND AND /OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 9. IN ALL THESE APPEALS THE LD.COUNSEL FOR THE ASS ESSEE DID NOT PRESS GROUND NO.1. HENCE THE SAME IS DISMISSED AS NOT P RESSED. IT(SS)A NOS.767 TO 770/AH D/2010 SHRI BHARATBHAI PRABHUDAS PATEL VS. DCIT AYS 1999-2000 2003-04 TO 2005-06 RESPECTIVELY - 11 - 10. SINCE THE FACTS AND CIRCUMSTANCES ARE SIMILAR T O THE FACTS AND CIRCUMSTANCES IN ASSESSEES OWN CASE I.E. IT(SS)A NO.767/AHD/2010 FOR A.Y. 1999-2000(SUPRA) AFTER HEARING BOTH THE P ARTIES IN THE INTEREST OF JUSTICE WE SET ASIDE THE ORDERS OF THE LD.CIT(A ) IN ALL THESE CASES AND FOR THE SAME REASONING STATED IN THE ASSESSEES APP EAL (I.E.IT(SS)A NO.767/AHD/2010-SUPRA) THE MATTER IS RESTORED BA CK TO THE FILE OF AO WITH A DIRECTION TO MAKE DE NOVO ASSESSMENT AFTER GIVING PROPER OPPORTUNITY OF HEARING AND CROSS-EXAMINATION TO THE ASSESSEE. THEREFORE ALL THESE APPEALS OF THE ASSESSEE ARE PARTLY ALL OWED BUT FOR STATISTICAL PURPOSES. 11. IN THE RESULT ALL THE FOUR APPEALS OF THE ASSE SSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25/ 10 /2013 /'.. .../ T.C. NAIR SR. PS & 0$1 21+$ & 0$1 21+$ & 0$1 21+$ & 0$1 21+$/ COPY OF THE ORDER FORWARDED TO : 1. 34 / THE APPELLANT 2. 0534 / THE RESPONDENT. 3. !! $ '6 / CONCERNED CIT 4. '6() / THE CIT(A)-I AHMEDABAD 5. 1 #7 0$ / DR ITAT AHMEDABAD 6. 789 :% / GUARD FILE. ' ' ' ' / BY ORDER 51$ 0$ //TRUE COPY// S ; ;; ;/ // / !< !< !< !< ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD