Jasvantbhai Dhanjibhai Gosalia, Surendranagar V. The Income Tax Officer, Ward-2, Surendranagar

ITA 100/RJT/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0046 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 23-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C S ANJARIA
• Assessee Lawyers: DM RINDANI
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER ./ ITA NO. 100/RJT/2015 ASSESSMENT YEAR : 2008-09 JASHVANTBHAI DHANJIBHAI GOSALIA, PROP. OF GOSALIA PROVISION STORE, OPP. VANDANA RESTAURANT, JINTAN ROAD, SURENDRANAGAR PAN : ABHPG 7475 K VS INCOME TAX OFFICER, WARD-2, SURENDRANAGAR / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI D.M. RINDANI, CA REVENUE BY : SHRI C.S. ANJARIA, DR / DATE OF HEARING : 22/11/2016 / DATE OF PRONOUNCEMENT: 23/12/2016 / O R D E R PER S.S. GODARA, JUDICIAL MEMBER :- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09, ARISES AGAINST CIT(A)-7, AHMEDABADS ORDER DATED 16.01.2015 PASSED IN CASE NO.CIT(A)-7/551/11-12, IN PROCEEDINGS U/S 143(3) R. W.S 147 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. WE COME TO ASSESSEES PLEADINGS. HE RAISES TOTAL SEVEN SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL INTER ALI A CHALLENGING VALIDITY OF REOPENING AS WELL AS ON MERITS. LEARNE D COUNSEL SUBMITS IN THE COURSE OF HEARING THAT THE ASSESSEE IS ONLY PRE SSING FOR SECOND SUBSTANTIVE GROUND ASSAILING CORRECTNESS OF SECTION 68 UNEXPLAINED CASH CREDIT ADDITION OF RS.11,47, 562/- QUA CASH DE POSITS MADE IN HIS ITA NO. 100/RJT/2015 JASHVANTBHAI DHANJIBHAI GOSALIA VS. ITO AYS 2008-09 2 BANK ACCOUNT. WE THUS REJECT THE REMAINING SIX SUB STANTIVE GROUNDS AS NOT PRESSED AND PROCEED TO ADJUDICATE THE ABOVE ISS UE HEREUNDER. 3. THE ASSESSING OFFICER NOTICE IN THE COURSE OF SC RUTINY THAT THE ASSESSEE HAD CREDITED CASH OF RS.11,47,562/- ON VAR IOUS DATES IN THE RELEVANT PREVIOUS YEAR FROM SHRI DHARKIK AND CHETAN . HE REJECTED ASSESSEES EXPLANATION THAT BOTH THE ABOVE PERSONS HAD GIVEN HIM THE ABOVE CASH FOR IPOS WITH AN UNDERSTANDING TO BE RET URNED AFTER ITS RECEIPT FROM THE COMPANY CONCERNED. THE ASSESSING OFFICER TURNED THE SAME AS AN UNSATISFACTORY EXPLANATION BEFORE MA KING THE IMPUGNED SECTION 68 ADDITION TO TREAT THE ABOVE SUM AS UNEXPLAINED CASH CREDIT IN ASSESSMENT ORDER DATED 29.12.2011. THE CIT(A) CONFIRMS THE SAME. 4. WE HAVE HEARD BOTH THE PARTIES. CASE FILE PERUSE D. LEARNED COUNSELS ONLY SUBMISSION IN THE COURSE OF HEARING IS THAT BOTH THE AUTHORITIES BELOW HAVE ERRED IN ADDING THE ENTIRE D EPOSIT FIGURE INSTEAD OF THE PEAK SUM THEREIN OF RS.3.59 LAKHS. W E PUT A SPECIFIC QUERY AS TO WHETHER THE ASSESSEE HAD EVER RAISED TH IS PEAK AMOUNT ADDITION PLEA BEFORE THE LOWER AUTHORITIES OR NOT. LEARNED COUNSEL TOOK US TO CIT(A) ORDER PAGE 4 SPECIFICALLY TAKING THE SAID ARGUMENT IN COURSE OF THE LOWER APPELLATE PROCEEDINGS WHICH HAS BEEN NOWHERE DEALT WITH IN THE ORDER UNDER CHALLENGE. LEARNED DE PARTMENTAL REPRESENTATIVE FAILS TO REBUT THIS FACTUAL POSITION . WE THUS DEEM IT APPROPRIATE IN THE LARGER INTEREST OF JUSTICE THAT THE LEARNED ASSESSING OFFICER NEEDS TO RE-EXAMINE ASSESSEES ABOVE PEAK L IMIT ADDITION ARGUMENT AS PER LAW AFTER AFFORDING HIM ADEQUATE OP PORTUNITY OF ITA NO. 100/RJT/2015 JASHVANTBHAI DHANJIBHAI GOSALIA VS. ITO AYS 2008-09 3 HEARING. THIS ISSUE IS THUS REMITTED BACK TO THE A SSESSING AUTHORITY FOR ADJUDICATION AFRESH AS PER LAW. 5. THIS ASSESSEES APPEAL IS PARTLY ACCEPTED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 23 RD DECEMBER, 2016 AT AHMEDABAD. SD/- SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER (S.S. GODARA) JUDICIAL MEMBER AHMEDABAD; DATED 23/12/2016 *BT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) 5. , / DR, ITAT, RAJKOT 6. & / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) ' #, / ITAT, RAJKOT