Shri Gordhanbhai Kanjibhai Chauhan, Surat V. The Income Tax Officer, Ward-3(2), Surat

CO 165/AHD/2014

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2748 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 30 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 17-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Retrospective amendment; Tax effect
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SHRI RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE IT O , WARD - 3(2), SURAT (APPELLANT) VS SHRI GORDHANBHAI KANJIBHAI CHAUHAN BLOCK NO. 68, NEW SAURABH SOCIETY, RANDER ROAD, MRA BHAGAL, SURAT PAN: ABBPC0766H (RESPONDENT /CROSS OBJECTOR ) REVENUE BY : S H R I K. MADHUSUDAN, SR. D . R. ASSESSEE BY: S H RI PARIN SHAH , A.R. DATE OF HEARING : 14 - 03 - 2 017 DATE OF PRONOUNCEMENT : 16 - 03 - 2 017 / ORDER P ER : AMARJIT SING H, ACCOUNTANT MEMBER : - THIS REVENUE S APPEAL AND ASSESSEE S C.O. FOR A.Y. 200 9 - 10 , AR ISE FROM ORDER OF THE CIT(A) - IV, SURAT DATED 14 - 10 - 2013 IN APPEAL NO. CAS - I V / II - 257/11 - 12 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 182 & CO 165 / A HD/20 14 A SSESSMENT YEAR 200 9 - 10 I.T.A NO. 182 & CO 165/AHD/2014 A.Y. 2009 - 10 PAGE NO I T O VS. SHRI GORDHANBHAI KANJIBHAI CHAUHAN 2 2. THE REVENUE S SOLE SUBSTANTIVE GROUND CHALLENGE S THE LOWER AP PELLATE ORDER DELETING THE ADDITION OF RS. 9,00,000/ - ON ACCOUNT OF UNEXPLAINED CASH CREDIT MADE IN ASSESSMENT ORDER DATED 20 - 12 - 2011 . THERE IS NO DISPUTE THAT THE NET TAX EFFE CT IN THE INSTANT APPEAL IS LESS THAN RS. 10 LACS. WE FIND THAT THE CENTRAL BOARD OF DIRECT TAXES; HEREAFTER THE BOARD HAS ISSUED THE CIRCULAR NO. 2 1/2015 DATED 10 - 12 - 2015 CLEARLY ENVISAGING THEREIN THAT DEPARTMENT S PENDING APPEALS BEFORE THE TRIBUNAL/ HIGH COURTS ARE TO BE WITHDRAWN/NOT PRESSED AS PER THE ABOVE ST ATED CIRCULAR . THE SAME HAS BEEN DECLARED TO BE HAVING RETROSPECTIVE EFFECT IN OTHER WORDS. WE TAKE INTO CONSIDERATION THE ABOVE STATED BOARD S CIRCULAR AND DISMISS THE INSTANT APPEAL ACCORDI NGLY. 3. THIS REVENUE S APPEAL IS DISMISSED AS HAVING LOW TAX EFFECT. CO NO. 165/AHD/2014 FILED BY ASSESSEE 4. THE CO OF THE ASSESSEE CONSISTS OF FOUR GROUNDS OF APPEAL. THESE ARE INTER - CONNECTED, SO THE SAME ARE DECIDED AS UNDER: - 5. THE BRIEF FACTS OF THE CASE IS THAT DURING THE COURSE OF SCRUTINY ASSESSMENT U/S. 143(3) IN THE CASE OF ASSESSEE, T HE ASSESSING OFFICER HAS NOTICED THAT ASSESSEE HAS OBTAINED UNSECURED LOANS FROM THE FOLLOWING PERSONS: - NO. NAME OF DEPOSITORS AMOUNT BORROWED 1 DR. JAYAN TIBHAI PATEL 2,50,000 I.T.A NO. 182 & CO 165/AHD/2014 A.Y. 2009 - 10 PAGE NO I T O VS. SHRI GORDHANBHAI KANJIBHAI CHAUHAN 3 2 SHANTILAL JADAV 3,00,000 3 ASHOK TANK 5,00,000 4 SURESHBHAI V. GOHIL 1,00,000 TOTAL 11,50,000 THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE INFORMATION TO PROVE THE IDENTITY, GENUINEN ESS AND CREDITWORTHINESS OF THE ABOVE DEPOSITS. IN THIS CONNECTION, THE ASSESSING OFFICER HAS ALSO ISSUED SHOW CAUSE NOTICE. THE ASSESSING OFFICER FURTHER STATED THAT NOBODY ATTENDED NOR SUBMITTED ANY WRITTEN SUBMISSION TO PROVE GENUINENESS OF THE ABOVE DEPOSITORS. THEREFORE, THE ASSESSING OFFICER HAS ADDED RS. 11.5 LACS AS UNEXPLAINED CREDIT U/S. 68 OF THE ACT. AGGRIEVED AGAINST THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS PROVIDED RELIEF TO THE EXTENT OF RS. 9 LACS AND SUSTAINED THE REMAINING ADDITION OF RS . 2.5 LACS PERTAINING TO THE AMOUNT OF LOAN OBTAINED FROM D R . JAYANTIBHAI PATEL BY OBSERVING AS UNDER: - 4. I HAVE GONE THROUGH THE FACTS OF THE CASE & THE EVIDENCES SUBMITTED BY THE APPE LLANT. FROM THE COPY OF LETTER DATED 29.08.2011 ADDRESSED TO THE A.O. IT IS SEEN THAT CONFIRMATIONS OF ACCOUNTS WERE SUBMITTED TO HIM IN RESPECT OF SHRI ASHOK TANK. SHRI SHANTILAL JADAV AND SHRI SURESH GOHIL. COPY OF RETURN OF SHRI ASHOK TANK AND FORM NO. 16 SUBMITTED SHOW THAT HE WAS EMPLOYED AS PROJECT ENGINEER WITH HAZIRA LNG PVT. LTD. WITH SALARY OF RS. 17,10,918/ - . LETTER OF SHRI SURESH GOHIL CONFIRMS GIVING LOAN AND IT IS ACCOMPANIED WITH ELECTION COMMISSION IDENTITY CARD AND BANK STATEMENT SHOWING PA YMENT TO APPELLANT. CONFIRMATION OF MARUTI ENTERPRISES ALONG WITH ITS COPY OF RETURN OF INCOME WAS SUBMITTED. IT HAS BEEN EXPLAINED THAT THE LOAN SHOWN IN THE NAME OF SHRI SHANTILAL JADAV HAD ACTUALLY BEEN RECEIVED FROM M/S. MARUTI ENTERPRISES IN WHICH SHR I JADAV HUF WAS A PARTNER. I FIND THAT M/S. MARUTI ENTERPRISES WAS SUBJECTED TO I.T.A NO. 182 & CO 165/AHD/2014 A.Y. 2009 - 10 PAGE NO I T O VS. SHRI GORDHANBHAI KANJIBHAI CHAUHAN 4 AUDIT AND THE NAME OF THE APPELLANT APPEARS IN THE BALANCE SHEET WITH OUTSTANDING AMOUNT OF RS. 3,00,000/ - . THEREFORE IN MY OPINION, THE CREDITS TO THE EXTENT IT PERTAINS TO AS HOK TANK, SHRI SURESHBHAI V. GOHIL AND SHRI SHANTILAL JADAV (M/S. MARUTI ENTERPRISES) ARE TO BE HELD AS EXPLAINED. THE APPELLANT GETS RELIEF OF RS. 9,00,000/' - . 4.2 AS REGARDS CREDIT IN THE NAME OF DR. JAYANTIBHAI PATEL IS CONCERNED THERE IS NO CONFIRMAT ION FROM THIS PERSON EVEN TODAY. THE APPELLANT HAS NOT FILED ANY BANK STATEMENT OR INCOME TAX DETAILS OF THIS PERSON. THOUGH THE BOOKS OF THE APPELLANT SHOW AN AMOUNT OF RS. 2,50,000/ - RECEIVED FROM THIS PERSON THERE IS NO INDEPENDENT EVIDENCE TO SUPPORT THIS CLAIM. THEREFORE THE EXPLANATION OF THE APPELLANT CANNOT BE ACCEPTED AS FAR AS THIS CREDIT IS CONCERNED. THE ADDITION TO THE EXTENT OF RS. 2,50,000/ - IS THEREFORE CONFIRMED. 6. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, LEARNED COUNSEL S TATED THAT THE AMOUNT OF RS. 2.5 LACS ADDED U/S.68 OF THE ACT BY THE ASSESSING OFFICER FOR WANT OF GENUINENESS HAS BEEN SHOWN AS INCOME IN THE SUBSEQUENT YEAR, THEREFORE, HE CONTENDED THAT ADDITION SUSTAINED ON THIS ISSUE SHOULD BE DELETED. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE LD. CIT(A). 7. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD .W E FIND THAT IN THE CASE OF THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2009 - 10 IN WHICH THE GENUINENESS OF TH E LOAN AMOUNT OF RS.2.5 LAC REMAINED UNPROVED BY THE ASSESSEE,A N OTICE U/S. 143(2) WAS ISSUED ON 28 TH AUGUST, 2010 WHEREAS THE ASSESSEE HA D FILED RETURN OF INCOME PERTAINING TO ASSESSMENT YEAR 2010 - 11 ON 22 ND MARCH, 2011 CLAIMING THAT AMOUNT OF RS. 2.5 LAC S HAS BEEN OFFERED AS INCOME . IN THIS CONNECTION, WE FIND THAT ASSESSEE HAS I.T.A NO. 182 & CO 165/AHD/2014 A.Y. 2009 - 10 PAGE NO I T O VS. SHRI GORDHANBHAI KANJIBHAI CHAUHAN 5 CREATED THIS TRANSACTION AFTER ISSUING OF NOTICE U/S. 143(2) STATING THAT HE HAS ALREADY OFFERED THE UNPROVED ADVANCES FROM THE SAID PERSON AS INCOME IN THE SUBSEQUENT ASSESSMEN T YEAR . IN VIEW OF THE ABOVE STATED FACTS AND FINDINGS, WE FIND THIS AFTERTHOUGHT CLAIM IS IMPROPERLY MADE BY THE ASSESSEE AS HE COULD NOT PROVE WITH RELEVANT EVIDENCE THE GENUINENESS OF THE TRANSACTIONS AS ELABORATED IN THE ORDER OF THE LD.CIT(A) , T HEREFORE, WE SUSTAINED THE ADDITION MADE BY THE LD. CIT(A). 8. IN THE RESULT, THE CO FILED BY ASSESSEE IS DISMISSED . 9. IN THE COMBINED RESULT, BOTH THE APPEAL OF THE REVENUE AND CO OF THE ASSESSEE ARE DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 16 - 03 - 201 7 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 16 /03 /2017 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CON CERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , I.T.A NO. 182 & CO 165/AHD/2014 A.Y. 2009 - 10 PAGE NO I T O VS. SHRI GORDHANBHAI KANJIBHAI CHAUHAN 6 / ,