Rakesh D. Tiwari, Vapi vs Assessee

ITA No. 1209/Ahd/2011 & CO No.192/Ahd/2011 िनधा रण वष /Assessment Year: 2007-08 ITO Vs Shri Rakesh D. Tiwari Ward-3, Plot No.6140, Near Pepsi Vapi Godown, 4th Phase GIDC, Vapi PAN : ACXPT 1887 B

अपीलाथ / अपीलाथ / (Appellant) ू यथ यथ / थ / (Respondent/Cross-

Objector) Revenue by : Shri B.L. Yadav, Sr. DR. Assessee(s) by : Shri Rajesh M. Upadhyay, AR

सु नवाई क# तार ख / Date of Hearing : 14/05/2015 घोषणा क# तार ख / Date of Pronouncement: 22/05/2015

आदे श/O R D E R

PER G.D. AGRAWAL, VICE PRESIDENT:

This is an appeal filed by the Revenue and the Cross-Objection filed by the assessee, both against the order of the Commissioner of Income Tax (Appeals), Valsad dated 28.12.2010, pertaining to Assessment Year 2007-08.

2. In this appeal by the Revenue, following grounds were raised:-

1. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in deleting the addition of Rs.3,59,788/-, out of total addition of Rs.3,70,846/- made u/s 37.

2. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in deleting the addition of Rs.28,46,923/- out of total addition of Rs.3,585,625/- made on account of Sundry creditors u/s 68.

ITA No. 1209/Ahd/2011 & CO 192/Ahd/2011 ITO vs. Shri Rakesh D. Tiwari AY 2007-08 2

3. In the Cross-objections, the assessee raised the following grounds:-

1. Lr. CIT(Appls) has erred in law and on facts to sustain addition of Rs.11,058/- out of business expense claimed.

2. Lr. CIT(Appls) has erred in law and on facts to sustain addition of Rs7,38,702/- under the head 'sundry creditors' from whom scrap was purchased during the year under appeal. When purchases of scrap being accepted, creditors from whom purchases are made are also required to be accepted.

3. Lr. CIT(Appls) has erred in law and on facts to add an amount of Rs.4,45,000/- credited to capital a/c because it is difference in closing capital a/c in earlier preceding year and opening balance shown in the year under assessment.

4. Cross appeal is delayed by 114 days because Appellant was at his native place - Village-Ambhat, Taluka-Mau, Distt.-Chitrakut to look after his father who was hospitalized.

4. At the time of hearing before us, it was submitted by the ld. Departmental Representative that on both the issues the CIT(A) allowed substantial relief to the assessee. The assessee had not furnished any evidence before the Assessing Officer. The assessee furnished various fresh evidences before the CIT(A) who considered the same and allowed the relief to the assessee in violation of provision of Rule 46A.

5. The ld. Counsel for the assessee, on the other hand, fairly admitted that the fresh evidences were filed before the CIT(A); he, however, stated that in the grounds of appeal raised before the ITAT, the Revenue has not challenged the admission of additional evidences. Moreover, before the ITA No. 1209/Ahd/2011 & CO 192/Ahd/2011 ITO vs. Shri Rakesh D. Tiwari AY 2007-08 3

CIT(A), the Assessing Officer appeared and he also never objected to the consideration of additional evidences by the CIT(A). He, therefore, submitted that the order of the CIT(A) may be sustained; in alternative, he suggested that if the Bench is of the opinion that the CIT(A) wrongly considered the additional evidences without strictly following the provisions of Rule 46A, then the matter may be set aside to the file of the Assessing Officer so that the assessee may produce all the evidences before the Assessing Officer and he may re-adjudicate both the issues raised in this appeal by the Revenue. He also submitted that if the issues raised in the Revenue's appeal are set aside, then the issue raised in the assessee's cross- objection should also be set aside because out of three issues raised in the cross-objection, two are common to the Revenue's appeal, because on both the issues part relief is allowed by the CIT(A). In respect of one more issue raised by the assessee in the cross-objection, some reconciliation is required with the earlier year which the assessee will be able to submit if the matter is sent back to the file of the Assessing Officer. The ld. Departmental Representative has no objection in sending the matter back to the file of the Assessing Officer.

6. After considering the arguments of both the sides and facts of the case, we are of the opinion that it would be in the interest of justice if the issues raised by the Revenue in its appeal and in the cross-objection by the assessee are set aside and restored to the file of the Assessing Officer. We order accordingly and direct the Assessing Officer to allow adequate opportunity of being heard to the assessee. We also direct the assessee to produce all the evidences as well as explanation before the Assessing Officer in respect of all the issues mentioned in the Revenue's appeal as well ITA No. 1209/Ahd/2011 & CO 192/Ahd/2011 ITO vs. Shri Rakesh D. Tiwari AY 2007-08 4

as his cross objection. Thereafter, the Assessing Officer is directed to pass a speaking order in accordance with law.

7. In the result, the Revenue's appeal as well as assessee's cross- objection, both are deemed to be allowed for statistical purposes.

Order pronounced in the Court on 22nd May, 2015 at Ahmedabad.

Sd/- Sd/-

(RAJPAL YADAV) (G.D. AGRAWAL) JUDICIAL MEMBER VICE-PRESIDENT Ahmedabad; Dated 22/05/2015 Biju T., PS

षत Copy आदे श क# ूितिल*प अमे*षत/ of the Order forwarded to : 1. अपीलाथ / The Appellant 2. ू यथ / The Respondent. 3. संबंिधत आयकर आयु- / Concerned CIT 4. आयकर आयु-(अपील) / The CIT(A)

5. *वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड फाईल / Guard file.

/ BY ORDER, आदे शानु सार

TRUE COPY

Dy./Asstt.Registrar) उप/सहायक पंजीकार ( उप/ अिधकरण, अहमदाबाद / आयकर अपीलीय अिधकरण, ITAT, Ahmedabad