M/s Woodgrip Fasteners, JAMNAGAR v. The Income Tax Officer, Ward 2(2), JAMNAGAR

MA 27/RJT/2010 | 2004-2005
Pronouncement Date: 31-03-2011 | Result: Allowed

Appeal Details

RSA Number 2724924 RSA 2010
Assessee PAN AAAFW1877H
Bench Rajkot
Appeal Number MA 27/RJT/2010
Duration Of Justice 8 month(s) 23 day(s)
Appellant M/s Woodgrip Fasteners, JAMNAGAR
Respondent The Income Tax Officer, Ward 2(2), JAMNAGAR
Appeal Type Miscellaneous Application
Pronouncement Date 31-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 31-03-2011
Date Of Final Hearing 25-03-2011
Next Hearing Date 25-03-2011
Assessment Year 2004-2005
Appeal Filed On 07-07-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) M.A. 27/RJT/2010 (ARISING OUT OF I.T.A. NO.891/RJT/2010) (ASSESSMENT YEAR 2004-05) WOODGRIP FASTNERS VS ITO WD.2(2) 251-252 GIDC JAMNAGAR JAMNAGAR PAN : AAAFW1877H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DM RINDANI RESPONDENT BY : SHRI AVINASH KUMAR O R D E R PER N.R.S. GANESAN JM THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS P ETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNA L DATED 11-06-2010. 2. SHRI DM RINDANI THE LEARNED REPRESENTATIVE OF T HE ASSESSSEE SUBMITTED THAT THIS TRIBUNAL BY MISTAKE AT PARAGRAPH 2 OF ITS ORDER HAS NOT STATED THAT THE GROUND NO.1 OF THE ASSESSEE IS ALLOWED. EVEN THOUG H THE TRIBUNAL FOLLOWED ITS EARLIER ORDER IN WOODGRIP INDUSTRIES JAMNAGAR IN I TA NO.891/R/2009 DATED 06- 08-2009 BY MISTAKE THIS TRIBUNAL HAS NOT STATED THA T THE GROUND RAISED BY THE ASSESSEE WAS ALLOWED. REFERRING TO THE ORDER OF TH E TRIBUNAL WHEN IT WAS POINTED OUT TO THE LEARNED REPRESENTATIVE THAT THE TRIBUNAL AFTER RECORDING THE FACTS OF THE CASE AND REPRODUCING ITS EARLIER ORDER IN WOODGRIP INDUSTRIES (SUPRA) HAS NOT RECORDED ANY FINDING IN THIS CASE THE LEAR NED REPRESENTATIVE POINTED OUT THAT AT THE LAST PAGE THIS TRIBUNAL NOTED THAT THE ASSESSEES APPEAL IS PARTLY ALLOWED. THEREFORE THE PRESUMPTION IS GROUND NO.1 RAISED BY THE ASSESSEE IS ALLOWED. ACCORDING TO THE LEARNED REPRESENTATIVE T HIS IS ONLY AN ERROR. WE HAVE HEARD SHRI AVINASH KUMAR THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO. THE MA NO.27/RJT/2010 2 LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT HE IS LEAVING THE MATTER AT THE DISCRETION OF THE BENCH TO DECIDE THE SAME ON M ERIT. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D REPRESENTATIVES. WE HAVE ALSO GONE THROUGH THE ORDER OF THIS TRIBUNAL D ATED 11-06-2010. IN RESPECT OF FIRST GROUND VIZ. THE ADDITION OF RS.6 76 872 T OWARDS UNACCOUNTED CASH THIS TRIBUNAL RECORDED THE FACTS OF THE CASE AND HAS ALS O REPRODUCED THE FINDING OF THE TRIBUNAL IN WOODGRIP INDUSTRIES (SUPRA). HOWSE VER THE TRIBUNAL HAS NOT RECORDED ANY FINDING IN RESPECT OF ADDITION MADE BY THE ASSESSING OFFICER TO THE EXTENT OF RS.6 76 872 TOWARDS UNACCOUNTED CASH. TH E LEARNED REPRESENTATIVE FOR THE ASSESSEE CLAIMS THAT THE PRESUMPTION IS THE TRI BUNAL HAS ALLOWED THE GROUND RAISED BY THE ASSESSEE TOWARDS ADDITION OF RS.6 76 872. WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE LEARNED REPRESENTATIVE FOR THE ASSESSEE. THE FACT REMAINS IS THAT THE TRIBUNAL HAS NOT RECORDED ANY F INDING WITH REGARD TO THE ADDITION MADE BY THE ASSESSING OFFICER TO THE EXTEN T OF RS. 6 76 872. NO DOUBT IT HAS RECORDED THE FACTS OF THE CASE WITH REGARD TO T HE ADDITION OF RS.6 76 872 AND HAS ALSO REPRODUCED THE FINDINGS IN THE CASE OF WOO DCRAFT INDUSTRIES (SUPRA). HOWEVER NO INDEPENDENT FINDING WAS RECORDED BY THE TRIBUNAL. IN OUR OPINION THIS OMISSION TO RECORD FINDING MAY BE A MISTAKE. HOWEVER WE CANNOT PRESUME THAT THE TRIBUNAL HAS ALLOWED THE GROUND RAISED BY THE ASSESSEE WITH REGARD TO THE ADDITION OF RS.6 76 872. PRESUMPTIONS AND SURM ISES HAS NO ROLE IN THE JUDICIAL PROCEEDINGS. JUDICIAL FINDINGS HAVE TO BE RECORDED ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. THEREFORE WE ARE UN ABLE TO ACCEPT THE CONTENTION OF THE LEARNED REPRESENTATIVE FOR THE ASSESSEE THAT IT HAS TO BE PRESUMED THAT THE TRIBUNAL HAS ALLOWED THE GROUND. IT IS WELL SETTLE D PRINCIPLES OF LAW THAT EVEN IN THE CASE OF ESTIMATION WHICH REQUIRES A LITTLE BIT OF GUESS WORK HAS TO BE MADE ONLY ON THE BASIS OF THE MATERIAL AND THE RELEVANT FACTORS RELEVANT FOR ESTIMATING A PARTICULAR RATE OF PROFIT. WHEN THAT IS THE LAW OF THE LAND IN OUR OPINION PRESUMPTION AND SURMISES CANNOT BE A REASON TO ASSU ME SOMETHING WHICH HAS NOT BEEN RECORDED BY THE TRIBUNAL. MA NO.27/RJT/2010 3 4. AS WE HAVE ALREADY OBSERVED THE FACT REMAINS IS THAT THE TRIBUNAL HAS NOT RECORDED THE FINDING. THE TRIBUNAL IS EXPECTED TO RECORD A FINDING AFTER TAKING NOTE OF THE ENTIRE FACTS AND MATERIALS AVAILABLE ON RECORD INCLUDING THE ORDER OF THE TRIBUNAL IN WOODCRAFT INDUSTRIES. THIS OMISSIO N TO RECORD THE FINDING IS AN ERROR WITHIN THE MEANING OF SECTION 254(2) OF THE A CT. SINCE THE LEARNED MEMBERS OF THE TRIBUNAL WHO ORIGINALLY HEARD THE A PPEALS ARE TRANSFERRED AND NOT AVAILABLE AT RAJKOT IN OUR OPINION THE APPEAL NEEDS TO BE REFIXED FOR RECORDING A FINDING ONE WAY OR OTHER BY THE TRIBUNA L. ACCORDINGLY WE DIRECT THE REGISTRY TO REFIX THE APPEAL FOR HEARING AFRESH IN RESPECT OF GROUND NO.1 I.E. WITH REGARD TO ADDITION OF RS.6 76 872 TOWARDS UNACCOUNT ED CASH ON 22-04-2011. HOWEVER WE MAKE IT CLEAR THAT THE ORDER OF THIS TR IBUNAL IN RESPECT OF GROUNDS 2 & 3 REMAINED AS SUCH WITHOUT ANY CHANGE. THE APPEA L IS FIXED ONLY FOR THE PURPOSE OF HEARING OF ADDITION OF RS.6 76 872 TOWAR DS UNACCOUNTED CASH. THE COPY OF THIS ORDER SHALL BE TREATED AS NOTICE OF HE ARING FOR THE HEARING DATED 22- 04-2011 AND HENCE IT MAY NOT BE NECESSARY TO SEND S EPARATE NOTICE OF HEARING. 5. WITH THE ABOVE OBSERVATION THE MISCELLANEOUS AP PLICATION OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31-03-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT DT : 31 ST MARCH 2011 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-III RAJKOT 4. THE CIT-II RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT