Shri Narendra Becharbhai Patel, Vadodara V. The Commissioner of Income Tax, (Appeals)-5, Vadodara

ITA 1029/AHD/2016

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 8222 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 25-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Keywords: Unexplained investment; Additional evidence
• Section: 143(3); 69

Judgement Text

SMC-ITA NO. 1029/AHD/2016 NARENDRA BECHARBHAI PATEL VS. CIT AY : 2011-12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ] ITA NO. 1029/AHD/2016 ASSESSMENT YEAR : 2011-12 NARENDRA BECHARBHAI PATEL ............APPEL LANT 30-KRISHNAKUNJ SOCIETY, GOTRI ROAD, VADODARA [PAN : ACWPP 2500 J] VS. THE COMMISSIONER OF INCOME-TAX .......................RESPONDENT (APPEALS)-5, VADODARA APPEARANCES BY: SUNIL TALATI, FOR THE APPELLANT ALBINUS TIRKEY, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 24.09.2018 DATE OF PRONOUNCING THE ORDER : 28.09.2018 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 1 ST FEBRUARY 2016 PASSED BY THE BY THE CIT(A)-5, VADOD ARA, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S . 147 OF THE INCOME-TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2011-12. 2. THE GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOL LOWS:- 1. THE ORDER PASSED BY THE LEARNED CIT (A)-5 VADOD ARA, IS BAD IN LAW, CONTRARY TO LEGAL PRONOUNCEMENTS AND SAME BE QUASHE D. THE DISALLOWANCES/ADDITIONS ARE UNWARRANTED AND SAME BE DELETED NOW. 2. THE LEARNED CIT(A)-5 HAS ERRED IN NOT CONSIDERIN G THE ADDITIONAL EVIDENCES PRODUCED BY THE APPELLANT DURING THE APPE LLATE PROCEEDINGS RELYING UPON THE OBSERVATIONS OF AO. IT IS SUBMITTE D THAT THE APPELLANT HAS FULFILLED THE CONDITIONS PRESCRIBED UNDER RULE 46A OF THE INCOME TAX ACT FOR FILING OF ADDITIONAL EVIDENCE DURING THE APPELLANT PROCEEDINGS. THE ADDITIONAL EVIDENCES WHICH ARE SUPPORTING IN NATURE BE ADMITTED NOW. 3. THE LEARNED CIT (A)-5 VADODARA, HAS ERRED IN UPH OLDING THE ADDITION OF RS 21,00,000/- OUT OF THE ADDITION OF RS. 42,00,000 /- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT BY INVOKING THE P ROVISION OF SECTION 69 OF THE INCOME TAX ACT, 1961, WITHOUT APPRECIATING T HE FACT THAT THE APPELLANT HAD NEVER GIVEN THE CONSIDERATION NOR TAKEN PHYSICA L POSSESSION OF SMC-ITA NO. 1029/AHD/2016 NARENDRA BECHARBHAI PATEL VS. CIT AY : 2011-12 PAGE 2 OF 3 IMMOVABLE PROPERTY. IT IS THEREFORE SUBMITTED THAT THE ADDITION MADE IS UNJUST AND UNCALLED FOR AND BE DELETED NOW. 4. THE LEARNED CIT(A)-5 VADODARA, HAS ERRED CONFIRM ING THE CHARGING OF INTEREST UNDER SECTION 234A/B/C/D. IT IS SUBMITTED THAT CHARGING OF INTEREST IS INCORRECT, INVALID AND NOT JUSTIFIED SINCE THE CHAR GING OF INTEREST IS NOT INITIATED IN THE ORDER PASSED U7S 143{3) OF THE ACT . IT BE HELD SO NOW AND SAME BE DELETED. 3. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, LEA RNED COUNSEL INVITED OUR ATTENTION TO THE PETITION DATED 4 TH AUGUST 2018 FILED UNDER RULE 29 OF THE INCOME- TAX (APPELLATE TRIBUNAL) RULES, 1963, SEEKING ADMIS SION OF ADDITIONAL EVIDENCES. HE SUBMITTED THAT THE SALE DEED, BASED ON WHICH THE IMPUGNED ADDITIONS WERE MADE, WAS SUBSEQUENTLY CANCELLED AND WHAT HE SEEKS TO SUBMIT BY WAY OF ADDITIONAL EVIDENCE IS THE DOCUMENT EVIDENCING CANC ELLATION OF THE SALE DEED. LEARNED COUNSEL SUBMITS THAT THE VERY CASE OF THE A SSESSEE HINGES ON RECENT CANCELLATION DEAL, BEING SUBMITTED BY NOW BY WAY OF ADDITIONAL EVIDENCE, WHICH HAS NOT BEEN TAKEN INTO ACCOUNT BY THE AUTHORITIES BELOW. MY ATTENTION IS INVITED TO THE FACT THAT THE SAID ADDITIONAL EVIDENCE WAS ALSO PRODUCED BEFORE THE LEARNED CIT(A) BUT HE DECLINED TO ADMIT THE SAME. THE ADDIT IONAL EVIDENCES PLACED AT PAGE NOS. 70 TO 90 OF THE PAPER-BOOK ARE AS FOLLOWS :- 1. COPY OF CANCELLED AGREEMENT REGISTERED DATED 17. 01.2012 CONFIRMING CANCELLATION OF SALE DEED AND ALSO CONFIRMING NO CO NSIDERATION WAS PAID BY APPELLANT TO SELLER PARTY TOWARDS SALE DEED DT. 20. 12.2010; 2. COPY OF SUIT FILED BY THE SELLER OF LAND NAMELY MR. DINESH CHUNILAL RAI IN REGULAR CIVIL SUIT NO. 721/2016 BEFORE THE HONBLE CIVIL COURT; 3. COPY OF ORDER PASSED BY HONBLE CIVIL COURT AGAI NST THE SUIT FILED BY MR. DINESH CHUNILAL RAI CLARIFYING THAT NO CONSIDERATIO N WAS EVER PAID BY THE APPELLANT IN RESPECT OF PURCHASE OF LAND AS MENTION ED IN SALE DEED DATED 20.12.2010. 4. LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT SER IOUSLY OPPOSE THE ADMISSION OF ADDITIONAL EVIDENCE; HOWEVER, HE SUBMI TS THAT IN CASE THE ADDITIONAL EVIDENCE IS ADMITTED, THE MATTER SHOULD BE REMITTED TO THE FILE OF THE ASSESSING OFFICER, RATHER THAN THE TRIBUNAL TAKING A CALL ON MERITS. 5. IN VIEW OF ABOVE, I AM OF THE CONSIDERED VIEW TH AT THE ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE DESERVES TO BE ADMITTED A S IT DEALS WITH THE VERY CRUCIAL ASPECT OF THE IMPUGNED ADDITION. IN CASE TH E SALE DEED IS INDEED CANCELLED, AS IS BEING SOUGHT TO BE ESTABLISHED BY WAY OF ADDI TIONAL EVIDENCES, THE VERY FOUNDATION OF IMPUGNED ADDITION CEASES TO HAVE LEGA LLY SUSTAINABLE BASIS. HOWEVER, AS THE LEARNED DEPARTMENTAL REPRESENTATIVE RIGHTLY SUGGESTS, THE ASSESSING OFFICER SHOULD BE GIVEN AN OPPORTUNITY TO DEAL WITH THE ADDITIONAL EVIDENCES AND TAKE A CALL ON THE MERITS AFTER GIVIN G YET ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE BY WAY OF A SPEAKING ORDER, IN ACCORDANCE WITH THE LAW. I, SMC-ITA NO. 1029/AHD/2016 NARENDRA BECHARBHAI PATEL VS. CIT AY : 2011-12 PAGE 3 OF 3 THEREFORE, ADMIT THE ADDITIONAL EVIDENCES, BUT REMI T THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN THE LIG HT OF THE ABOVE OBSERVATIONS. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THE 28 TH DAY OF SEPTEMBER, 2018. SD/- PRAMOD KUMAR (ACCOUNTANT MEMBER) AHMEDABAD, THE 28 TH DAY OF SEPTEMBER, 2018 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: .....2 PAGES DICTATION PAD A TTACHED.....27.09.2018........... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: ... 27.09.2018... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: 28.09.2017.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: . 28.09.2017. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : .. 28.09.2017. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : . 8. DATE OF DESPATCH OF THE ORDER: ......