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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 471 & 472/JP/2014
PER SHRI KUL BHARAT, J.M. These appeals by the assessee are directed against two separate orders of ld. CIT (A), Alwar dated 01.05.2014 pertaining to assessment years 2005-06 & 06-07. We first take up assessee’s appeal for the assessment year 2005-06. The assessee has raised the following grounds of appeal :-
“ 1. That under the facts and circumstances of the case the order passed by the learned Assessing Officer/Learned CIT (A) u/s 144/153A is void-ab-initio.
2 ITA Nos. 471 & 472/JP/2014. Shri Dharmendra Pandey, Jaipur.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustained the disallowance of Rs. 72,635/- on account of trading expenses.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustained the disallowance of Rs. 92,919/- on account of expenses claimed by the assessee in profit & loss accounts @ 10% of total expenses claimed.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustaining the addition of Rs. 12,25,443/- on account of unexplained investment in property on the basis of computation of income.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustaining the addition of Rs. 1,51,221/- out of Rs. 2,55,707/- made by the learned Assessing Officer on account of unsecured loan and sundry creditors appearing in balance sheet of the assessee u/s 68 of the Income Tax Act, 1961.
Under the facts and circumstances of the case the learned CIT (A) has erred in not allowing rebate u/s 88 of Rs. 7235/- of Income Tax Act, 1961 claimed by the assessee.
The assessee craves your indulgence to add, amend or alter all or any grounds of appeal before or at the time of hearing.
At the outset, the ld. Counsel for the assessee submitted that Ground No. 1
raises an issue of legality of the order passed by the AO under section 153 of the
Income Tax Act, 1961 (hereinafter referred to as the Act). Further, the ld. Counsel
submitted that in fact no search was carried out at the premises of the assessee and
the assessment has not been framed on the basis of the search material.
2.1. On the contrary, the ld. D/R opposed the submissions and pointed out that
similar ground was raised as Ground No. 1 before ld. CIT (A) and the assessee had
not Pressed the ground before ld. CIT (A). Therefore, assessee cannot be allowed
to raise this ground before this Tribunal.
3 ITA Nos. 471 & 472/JP/2014. Shri Dharmendra Pandey, Jaipur.
2.2. In re-joinder, the ld. Counsel for the assessee submitted that at that point of
time the judgment of the Hon’ble Jurisdictional High Court in the case of Jai Steel
India vs. ACIT, 259 CTR 281 (Raj.) and judgment of Hon’ble Delhi High Court in the
case of CIT vs. Kabul Chawla, 380 ITR 573 (Delhi) were not available.
2.3. We have heard rival contentions, perused the material on record and gone
through the orders of the authorities below. The issue raised in this ground goes to
the root of the legality of the order. We, therefore, deem it proper and in the
interest of justice, restore this ground to the ld. CIT (A) to decide it afresh in the
light of the judicial pronouncements relied by the ld. Counsel for the assessee,
preferably within 3 months from the date of service of this order. Thus, the order of
ld. CIT (A) is set aside.
2.4. Since we have restored the legal ground for decision afresh, we are not
adjudicating other grounds raised in this appeal and the same are also restored to
ld. CIT (A) for afresh decision.
In the result, appeal of the assessee is allowed for statistical purposes. Now we take up appeal of the assessee pertaining to A.Y. 2006-07. The 4.
grounds in this appeal are as under :-
“ 1. That under the facts and circumstances of the case the order passed by the learned Assessing Officer/Learned CIT (A) u/s 144/153A is void-ab-initio.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustaining the addition of Rs. 1,36,985/- on account of trading expenses claimed.
4 ITA Nos. 471 & 472/JP/2014. Shri Dharmendra Pandey, Jaipur.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustaining the addition of Rs. 1,11,582/- on account of expenses claimed by the assessee in profit & loss accounts @ 10% of total expenses claimed.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustaining the addition of Rs. 6,42,000/- out of Rs. 4,94,000/- made by the learned Assessing Officer on account of unsecured loan and sundry creditors appearing in balance sheet of the assessee u/s 68 of the Income Tax Act, 1961.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustaining the addition of Rs. 14,02,841/- on account of long term capital gain income without any material and by disallowing cost of improvements during the previous years.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustaining the addition of Rs. 31,189/- on account of long term capital gain loss claimed by the assessee.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustaining the addition of Rs. 2,13,060/- on account of long term capital gain by invoking the provisions of section 50C of the Income Tax Act, 1961.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustaining the addition of Rs. 56,347/- on account of long term capital gain loss claimed by the assessee.
Under the facts and circumstances of the case the learned CIT (A) has erred in sustaining the disallowing of Rs. 54,825/- on account of deduction u/s 80C claimed by the assessee.
The assessee craves your indulgence to add, amend or alter all or any grounds of appeal before or at the time of hearing.
Ground No. 1 involved in this appeal is a legal ground. We have restored the
identical ground raised in assessee’s appeal for the assessment year 2005-06 to the
ld. CIT (A) for decision afresh after taking into consideration the judgments of
Hon’ble Jurisdictional High Court and Hon’ble Delhi High Court (supra). Therefore,
following the decision arrived hereinabove pertaining to assessment year 2005-06,
5 ITA Nos. 471 & 472/JP/2014. Shri Dharmendra Pandey, Jaipur. we restore Ground No. 1 along with other grounds to the ld. CIT (A) for decision afresh in the light of judicial pronouncements mentioned above. 6. In the result, appeal of the assessee is allowed for statistical purposes. 7. In totality, both the appeals of the assessee are allowed for statistical purposes.
Order pronounced in the open court on 18/09/2017. Sd/- Sd/- ¼dqy Hkkjr ½ ¼foØe flag ;kno½ (Vikram Singh Yadav) (Kul Bharat) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 18/09/2017. das/ आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Dharmendra Pandey, Jaipur. 2. izR;FkhZ@ The Respondent- The Assistant Commissioner of Income-tax, Central Circle, Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File {ITA No. 471 & 472/JP/2014}
vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेज. त्महपेजतंत
6 ITA Nos. 471 & 472/JP/2014. Shri Dharmendra Pandey, Jaipur.