Shri Rameshbhai L. Patel, Ahmedabad v. The Income tax Officer,Ward-6(5),, Ahmedabad

ITA 1715/AHD/2007 | 1997-1998
Pronouncement Date: 31-05-2010 | Result: Allowed

Appeal Details

RSA Number 171520514 RSA 2007
Assessee PAN ACRPP7672G
Bench Ahmedabad
Appeal Number ITA 1715/AHD/2007
Duration Of Justice 3 year(s) 1 month(s) 4 day(s)
Appellant Shri Rameshbhai L. Patel, Ahmedabad
Respondent The Income tax Officer,Ward-6(5),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 31-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 31-05-2010
Date Of Final Hearing 31-05-2010
Next Hearing Date 31-05-2010
Assessment Year 1997-1998
Appeal Filed On 26-04-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI N.S. SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER DATE OF HEARING: 31.05.2010 DRAFTED ON:31.05.2 010 ITA NO.1715/AHD/2007 ASSESSMENT YEAR : 1997-1998 RAMESHBHAI L. PATEL PROP. POONAM ENTERPRISES PART-II 45 SHRINATH SOCIETY GHATLODIA AHMEDABAD-61. VS. INCOME TAX OFFICER WARD 6(5) AHMEDABAD. PAN/GIR NO. : ACRPP 7672 G (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI VIVEK N.CHAVDA A.R. RESPONDENT BY: SHRI C.K.MISHRA SR. D.R. O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-XII AH MEDABAD DATED 15.01.2007 TAKING THE FOLLOWING GROUNDS OF TH E APPEAL:- 1.1. THE ORDER PASSED UNDER SECTION 250 ON 15.01.2 007 FOR A.Y. 1997-98 BY CIT(A)-XII ABAD CONFIRMING THE ADDITION OF RS.42 95 559/- MADE BY AO AS BOGUS PURCHASES IS WHOLLY ILLEGAL UNLAWFUL AND AGAINST T HE PRINCIPLES OF NATURAL JUSTICE. 1.2. THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN REJECTI NG THE EXPLANATION OF THE APPELLANT AND EVIDENCE PRODUCED BY HIM. - 2 - 2.1. WITHOUT PREJUDICE TO THE ABOVE THE LD.CIT(A) HAS ERRED IN LAW AND/OR ON FACTS IN UPHOLDING THAT THE PURCHA SES OF RS.42 95 559/- FROM SIX DIFFERENT PARTIES WERE BOGU S AND THEREBY MAKING AN ADDITION OF RS.42 95 559/-. 2.2. THAT IN THE FACTS AND CIRCUMSTANCES OF CASE T HE LD. CIT(A) OUGHT NOT TO HAVE UPHELD THAT THE ENTIRE PURCHASES OF RS.42 95 559/- WERE BOGUS. 3.1. WITHOUT PREJUDICE TO THE ABOVE THE LD. CIT(A) OUGHT NOT TO HAVE CONFIRMED THE ADDITION OF THE ENTIRE PURCHASES ESPECIALLY WHEN THE APPELLANT WAS HELD TO BE ENGAGED IN BILLING BUSINESS ON COMMISSION BASIS. TH E APPELLANT HAD FILED HIS REPLY DATED 21.11.2005 ALON G WITH COMPLETE DETAILS OF SALES/PURCHASES AND PARTIES ACC OUNT TO PROVE THAT THE PURCHASES WERE IN FACT MADE AND S ALES WERE MADE TO THE PARTIES OF CHANDRESH CABLES LTD. 3.2. THE OBSERVATIONS MADE AND CONCLUSION REACHED B Y CIT(A)IN CONFIRMING THE ADDITION OF RS.42 95 559/- AS BOGUS PURCHASES ARE WHOLLY UNWARRANTED AND CONTRARY TO THE FACTS ON RECORD. 4.1. WITHOUT PREJUDICE TO THE ABOVE THE LD. CIT(A) OUGHT NOT TO HAVE CONFIRMED THE ENTIRE ADDITION OF RS.42 95 559/- WHEN THE SALES AND BOOKS OF ACCOUNTS WERE NOT DISPUTED SO THAT THE IMPUGNED ADDITION SHO ULD HAVE BEEN RESTRICTED AS HELD IN CASE OF ANUBHAI SHI VLAL ETC. BY ITAT. 5. IT IS THEREFORE PRAYED THAT THE ADDITION OF RS. 42 95 559/- MAY PLEASE BE DELETED AND IN THE ALTERNATIVE REDUCE D. 2. AT THE OUTSET THE LEARNED AUTHORISED REPRESENTA TIVE OF THE ASSESSEE FILED COPY OF THE ORDER PASSED BY THE TRIB UNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 1997-98 IN ITA NO.966/ AHD/2006 DATED 19.12.2008 AND SUBMITTED THAT AGAINST THE ORD ER OF THE CIT-III AHMEDABAD PASSED UNDER SECTION 263 OF THE ACT ON 31 .03.2005 THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL IN THE SAID - 3 - APPEAL HELD THAT THE ORDER UNDER SECTION 263 PASSE D BY THE CIT BEING CHANGE IN OPINION IN RESPECT OF PERCENTAGE OF COMMI SSION CANNOT BE SUSTAINED AND VACATED THE ORDER OF CIT. IT WAS THE REFORE HIS SUBMISSION THAT THE ORDER PASSED BY THE LEARNED ASS ESSING OFFICER CONSEQUENT TO THE ORDER OF CIT UNDER SECTION 263 OF THE ACT CANNOT STAND AND THEREFORE THE APPEAL OF THE ASSESSEE HAS TO BE ALLOWED. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO AGR EED WITH THE SUBMISSION OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE MATERIAL AVAILABLE ON RECORD WE FIND THAT THE PRES ENT APPEAL HAS ARISEN OUT OF THE ORDER PASSED BY THE LEARNED ASSES SING OFFICER ON 21.03.2006 UNDER SECTION 143(3) IN PURSUANCE TO THE ORDER OF THE CIT- III AHMEDABAD PASSED UNDER SECTION 263 OF THE ACT ON 13.03.2005. WE FIND THAT THE SAID ORDER OF THE CIT-III AHMEDAB AD PASSED UNDER SECTION 263 WAS VACATED BY THE TRIBUNAL VIDE ITS OR DER DATED 19.12.2008 PASSED IN ITA NO.966/AHD/2006. IN THE AB OVE CIRCUMSTANCES THE VERY BASIS OF THE ORDER OF THE L EARNED ASSESSING OFFICER HAS BECOME NON EXISTENT AND THEREFORE THE ORDER OF THE LEARNED ASSESSING OFFICER CANNOT STAND ALONE. WE OR DER ACCORDINGLY AND ALLOW THE APPEAL OF THE ASSESSEE. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON THIS 31 ST DAY OF MAY 2010. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; ON THIS 31 ST DAY OF MAY 2010 PARAS - 4 - COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XII AHMEDABAD. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 31.05.2010 --------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 01.06.2010 ----- -------------- 3. DRAFT PROPOSED & PLACED 01.06.2010 ------------ ------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 01.06.2010 ----------- -------- JM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 01.06.2010 --------- ----------- 6. KEPT FOR PRONOUNCEMENT ON ---------------- --- ----------------- 7. FILE SENT TO THE BENCH CLERK 01.06.2010 ------- ------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------