M/s. Pankaj Diamonds,, Surat v. The Dy.CIT, Circle-9,, Surat

MA 93/AHD/2014 | 2006-2007
Pronouncement Date: 28-09-2016 | Result: Allowed

Appeal Details

RSA Number 9320524 RSA 2014
Assessee PAN AADFP5145L
Bench Ahmedabad
Appeal Number MA 93/AHD/2014
Duration Of Justice 2 year(s) 3 month(s) 11 day(s)
Appellant M/s. Pankaj Diamonds,, Surat
Respondent The Dy.CIT, Circle-9,, Surat
Appeal Type Miscellaneous Application
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 28-09-2016
Assessment Year 2006-2007
Appeal Filed On 17-06-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE SHRI PRAMOD KUMAR ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV JUDICIAL MEMBER MA NO. 93/AHD/2014 (ARISING OUT OF ITA NO. 1975/AHD/2009 ) ASSESSMENT YEAR : 2006-07 M/S. PANKAJ DIAMONDS 4-7 KRISHNA DIAMOND PARK KAPODARA VARACHHA ROAD SURAT V/S . DCIT CIRCLE-9 SURAT PAN NO. AADFP 5145 L (APPLICANT) .. (RESPONDENT) ASSESSEE(S) BY : SHRI S.N. SOPARKAR WITH P.M. MEHTA ARS REVENUE BY : SHRI K. MADHUSUDAN SR DR / DATE OF HEARING : 16/09/2016 ! /DATE OF PRONOUNCEMENT : 28/09/2016 / O R D E R PER PRAMOD KUMAR ACCOUNTANT MEMBER: BY WAY OF THIS RECTIFICATION PETITION THE ASSESSEE -APPLICANT HAS POINTED OUT A MISTAKE IN THE ORDER DATED 20.04.2012 PASSED BY THE TRIBUNAL. 2. LD. COUNSEL APPEARING FOR THE APPLICANT-ASSESSEE POINTS OUT THAT IN THE IMPUGNED ORDER THE TRIBUNAL HAS REMITTED THE MA TTER BACK TO THE FILE OF THE LD. AO AT THE INSTANCE OF THE REVENUE WITHOUT POINTING OUT ANY ERROR IN THE CIT(A)S ORDER. HE SUBMITS THAT IT IS A CAS E IN WHICH THE ASSESSING OFFICER HAD MADE AN ADDITION OF RS.2.27 CRORES ON A CCOUNT OF ALLEGED SUPPRESSION OF YIELD OF PRODUCTION OF FINISHED DIAM ONDS; BUT LD. CIT(A) FOR THE DETAILED REASONS SET OUT IN THE ORDER HAD DELETED THE SAID ADDITION. HOWEVER WHEN THE MATTER REACHED TO THE TRIBUNAL T HE TRIBUNAL WITHOUT MA NO. 93/AHD/ 2014 DCIT VS. PANKAJ DIAMONDS AY 2006- 07 - 2 - POINTING OUT ANY ERROR IN THE REASONING ADOPTED BY THE LD. CIT(A) RESTORED THE ISSUE TO THE FILE OF THE LD. AO FOR ADJUDICATIO N DE NOVO IN THE LIGHT OF CERTAIN DIRECTIONS. HE SUBMITS THAT THE APPROACH S O ADOPTED BY THE TRIBUNAL IS CONTRARY TO THE RATIO LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RAJESH BABUBHAI DAMANIA V S. ITO REPORTED IN [2001] 251 ITR 541 (GUJ.) WHEREIN THEIR LORDSHIPS HAVE POINTED OUT THAT SINCE THE AOS ORDER STANDS MERGED WITH THE ORDER O F THE CIT(A) IT WAS THE DUTY OF THE TRIBUNAL TO ASCERTAIN THE REASONS WHICH WERE GIVEN BY THE COMMISSIONER (APPEALS) IN WHOSE ORDER THE ORDER OF THE ASSESSING OFFICER HAD MERGED AND NOT TO BASE ITS DECISION MERELY ON A BIT OF NEGLIGENCE O F THE ASSESSING OFFICER IN NOT CROSS-EXAMINING THE PARTIES WHO WERE PRODUCED BEFOR E HIM 4 TO 5 TIMES . IN ALL FAIRNESS HE SUBMITS THAT THE MATTER IS REQUIRED TO BE RE-CONSIDERED BY THE TRIBUNAL. HE THEREFORE REQUESTED THAT THE IMPUGNE D ORDER OF THE TRIBUNAL MAY BE RECALLED IN RELATION TO GROUND NOS. 1 & 2. 3. LD. DR ON THE OTHER HAND SUBMITS THAT THE TRIB UNAL HAS DEALT WITH THE ISSUE IN A PRECISIVE AND DETAILED MANNER AND WO ULD NOT BE PROPER TO REVIEW THE CONCLUSION OF THE ORDER SO ARRIVED AT BY THE TRIBUNAL. WHEN THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF RAJESH BABUBHAI DAMANIA (SUPRA) WAS POINTED OUT BY LD. COU NSEL FOR THE ASSESSEE LD. DR DID NOT HAVE MUCH TO SAY EXCEPT TO PLACE REL IANCE ON THE FINDING OF THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. WE FIND THAT THE APPLICANT-ASSESSEE HAS R ELIED UPON THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RAJESH BABUBHAI DAMANIA (SUPRA) WHEREIN IN A SIMILAR SET OF SITUAT IONS THE TRIBUNAL HAD MA NO. 93/AHD/ 2014 DCIT VS. PANKAJ DIAMONDS AY 2006- 07 - 3 - REMITTED THE MATTER BACK TO THE FILE OF AO AT THE INSTANCE OF THE REVENUE WITHOUT POINTING OUT OR DEALING WITH THE REASONING ADOPTED BY THE LD. CIT(A) IN GRANTING THE RELIEF IMPUGNED BEFORE THE T RIBUNAL. IN ALL THESE MATERIAL FACTS THEIR LORDSHIPS INTER ALIA HAD FOLLOWING CONCLUSIONS/OBSERVATIONS TO MAKE:- 5. THE TRIBUNAL TOTALLY OVERLOOKED THE ASSESSMENT OF EVIDENCE DONE BY THE CIT(A) AND DEALT WITH THE MATTER AS IF IT WAS ENTER TAINING AN APPEAL AGAINST THE ORDER OF THE AO. THERE WAS NO QUESTION OF GIVIN G 'ONE MORE INNINGS' TO THE AO. APPEALS ARE NOT TO BE DECIDED FOR GIVING 'O NE MORE INNINGS' TO THE LOWER AUTHORITIES. IN THE APPELLATE JURISDICTION T HE APPELLATE COURT HAS TO CONSIDER WHETHER THERE IS JUSTIFICATION FOR UPSETTI NG THE ORDER AGAINST WHICH THE APPEAL IS FILED. IN THIS CASE WHERE THE ASSESSE E HAD REPEATEDLY PRODUCED THE CREDITORS BEFORE THE ITO AND HAD FILED AFFIDAVI TS IN SUPPORT OF THE CREDIT ENTRIES AND ALSO FILED CONFIRMATIONS AND GIVEN NAME S AND ADDRESSES OF THE CONCERNED PARTIES AS WELL AS PROVED REPAYMENT OF TH E AMOUNTS BY ACCOUNT PAYEE CHEQUES AND DONE ALL THAT WAS WITHIN HIS POWE R TO PROVE THE GENUINENESS OF THE LOANS THE FINDING ARRIVED AT BY THE APPELLATE AUTHORITY ON THE BASIS OF SUCH RELIABLE MATERIAL COULD NOT HAVE BEEN SO CURSORILY DEALT WITH BY THE TRIBUNAL FOR THE PURPOSE OF GIVING 'ONE MORE INNINGS' TO THE AO. IT WAS THE DUTY OF THE TRIBUNAL TO ASCERTAIN THE REASO NS WHICH WERE GIVEN BY THE CIT(A) IN WHOSE ORDER THE ORDER OF THE AO HAD M ERGED AND NOT TO BASE ITS DECISION MERELY ON 'A BIT OF NEGLIGENCE' OF THE AO IN NOT CROSS- EXAMINING THE PARTIES WHO WERE PRODUCED BEFORE HIM 4 TO 5 TIMES. IN OUR OPINION THE TRIBUNAL HAS REACHED THE CONCLUSION WH ICH CANNOT REASONABLY BE REACHED BY ANYONE AND THERE IS NO WARRANT FOR REST ORING THE MATTER TO THE AO ON SUCH SPECIOUS GROUNDS AS ARE GIVEN BY THE TRI BUNAL. 5. THE LEGAL POSITION IS THUS UNAMBIGUOUS AND IT IS NOT OPEN TO THE TRIBUNAL TO REVERSE THE CONCLUSIONS ARRIVED AT BY T HE FIRST APPELLATE AUTHORITY WITHOUT FINDING ANY SPECIFIC FAULT IN THE REASONING ADOPTED BY THE FIRST APPELLATE AUTHORITY. HOWEVER WE FIND TH AT THE ORDER DATED 20.04.2012 PASSED BY THE TRIBUNAL IN ITA NO.1975/AH D/2009 INDEED SUFFERS FROM THIS SERIOUS MISTAKE APPARENT FROM THE RECORD INASMUCH AS IT HAS REVERSED THE ORDER OF THE CIT(A) WITHOUT POINTI NG OUT ANY INFIRMITY MA NO. 93/AHD/ 2014 DCIT VS. PANKAJ DIAMONDS AY 2006- 07 - 4 - THEREIN. WE THEREFORE DEEM IT FIT AND PROPER TO R ECALL THE ORDER FOR THE LIMITED PURPOSE OF DECIDING THE RELATED GROUNDS AFR ESH I.E. GROUND NOS.1 & 2 UNINFLUENCED BY ANY OBSERVATIONS MADE EARLIER AND OF COURSE AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE REGISTRY IS DIRECTED TO FIX THIS CASE FOR HEARING ON 17.11.2 016 6. IN THE RESULT THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE COURT ON 28 TH SEPTEMBER 2016 AT AHMEDABAD. SD/- SD/ - (RAJPAL YADAV) JUDICIAL MEMBER (PRAMOD KUMAR) ACCOUNTANT MEMBER AHMEDABAD DATED 28/09/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. #$ / THE APPELLANT 2. %&#$ / THE RESPONDENT. 3. '' ( / CONCERNED CIT 4. ( ( ) / THE CIT(A) 5. + -%.. / D R ITAT AHMEDABAD 6. -01 / GUARD FILE. / BY ORDER TRUE COPY / (DY./ASSTT.REGISTRAR) ! / ITAT AHMEDABAD