Smt Kinjalben R.Thakkar, Ahmedabad V. The Income tax Officer,Ward-7(2), Ahmedabad

ITA 1073/AHD/2011

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8585 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 17-07-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 11-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VASUNDHARA UPAMANYU
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Additional evidence
• Section: 153A; 132

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ ITA NO.1073/AHD/2011 / ASSTT. YEAR: 2005-2006 KINJALBEN R. THAKKAR 1, RUKSHMANI VALLABH SOCIETY MANEKBAUG HALL ROAD SATELLITE, AHMEDABAD. PAN : AASPT 6710 C VS. DCIT, CENT.CIR.1(1) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI ASEEM THAKKAR, AR REVENUE BY : MS.VASUNDHARA UPAMANYU, CIT-DR ! / DATE OF HEARING : 05/09/2017 '#$ ! / DATE OF PRONOUNCEMENT: 07/09/2017 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-I, AHMEDABAD DATED 25.1.2011 PASSED FOR T HE ASSTT.YEAR 2005-06. 2. ASSESSEE HAS TAKEN FIVE GROUNDS OF APPEAL. OUT OF WHICH, GROUNDS NO.1 AND 5 ARE GENERAL GROUNDS OF APPEAL WH ICH DO NOT ITA NO.1073/AHD/2011 2 CALL FOR RECORDING OF ANY SPECIFIC FINDING. IN GRO UND NOS.2, 3 AND 4 SHE HAS CHALLENGED ADDITIONS OF RS.8,50,000/-, RS.1 5,000/- AND RS.6,50,000/-. THESE ADDITIONS HAVE BEEN MADE ON A CCOUNT OF UNEXPLAINED CASH CREDIT INTRODUCED AS GIFTS IN THE CAPITAL ACCOUNT AND UNEXPLAINED INVESTMENT IN PURCHASE OF FLAT. TH E LD.COUNSEL FOR THE ASSESSEE, AT THE VERY OUTSET, SUBMITTED THAT TH E ASSESSEE HAS MOVED AN APPLICATION UNDER RULE 29 OF THE INCOME TA X (APPELLATE TRIBUNAL) RULES, 1963 FOR ADMISSION OF ADDITIONAL E VIDENCE. IN THE APPLICATION, SHE HAS PLEADED THAT SEARCH UNDER SECT ION 132 OF THE INCOME TAX ACT, 1961 WAS CONCLUDED AT THE RESIDENTI AL PREMISES OF THE ASSESSEE ALONG WITH DHARMADEV BUILDERS GROU P CASES ON 9.2.2005. THE LD.CA WAS HANDLING MORE THAN 300 ASS ESSMENTS OF THE GROUP AND IT WAS QUITE DIFFICULT TO SUBMIT COMP LETE DETAILS IN SHORT SPELL OF TIME. PLEADINGS OF THE ASSESSEE IN PARA 4 AND 5 OF THE APPLICATION DESERVES TO BE NOTED. IT READS AS UNDER: 4. THE LD. C1T(A) HAD ADMITTED THAT THE EVIDENCES/DECLARATION OF GIFTS AND LOANS HAD BEEN F URNISHED DURING THE COURSE OF APPELLATE PROCEEDINGS. HOWEVER MERELY BECAUSE THE SAME HAD NOT BEEN VERIFIED BY THE AO TH E EVIDENCES WERE NOT ADMITTED FOR ADJUDICATION IN THE APPELLATE PROCEEDINGS. IT IS WORTHWHILE TO NOTE THAT THE LD. CIT(A) HAS NOT DISPUTED THE FURNISHING OF ADDITIONAL EVIDENCES AS ALSO THE DIFFICULTY ASSOCIATED OF COLLECTING EXTERNAL EV IDENCES WITHIN A SPECIFIED TIME FRAME PARTICULARLY IN LIGHT OF THE SITUATION THAT INFORMATION OF MORE THAN 300 ASSESSM ENTS HAVE TO BE FURNISHED SIMULTANEOUSLY BEFORE THE AO. ON ACCOUNT OF PAUCITY OF TIME AND THE NON AVAILABILITY OF EXTERNAL EVIDENCES IN THE FORM OF CONFIRMATION/ACKNOWLEDGEME NT OF THE RETURN OF INCOME OF THE DONOR/GIFT DEED/CONTRA ACCOUNTS ETC THE SAME COULD NOT BE FURNISHED AT THAT RELEVAN T POINT OF TIME. IT WOULD THEREFORE BE OBSERVED THAT THE APPEL LANT WAS ITA NO.1073/AHD/2011 3 DEPRIVED OF REASONABLE OPPORTUNITY FOR FURNISHING T HE ADDITIONAL EVIDENCES AT THE TIME OF ASSESSMENT/APPE LLATE STAGE. 5. THE LD. CIT(A) HAS NOT CHALLENGED OR DISPUTED TH E DIFFICULT SITUATION OF THE ASSESSEE WITH REGARDS TH E NON- FURNISHING OF EVIDENCES IN SUPPORT OF THE CASH CRED ITS AT THE ASSESSMENT STAGE. THE LD. CIT(A) HAS MERELY STATED THAT THESE DOCUMENTS HAVE NOT BEEN VERIFIED AT THE ASSES SMENT STAGE, AND THEREFORE, NOT ADMITTED FOR ADJUDICATION IN THE APPELLATE PROCEEDINGS. THE LD. CIT(A) HAS WRONGLY R EJECTED THE EVIDENCES FURNISHED BEFORE HIM WITHOUT ASSIGNIN G ANY REASON FOR NOT ADMITTING THEM. THE ADMISSION OF THE EVIDENCES WOULD ONLY FURTHER CAUSE OF SUBSTANTIAL J USTICE PARTICULARLY WHERE THE APPEAL HAS BEEN DECIDED BY N OT TAKING COGNIZANCE OF THE EVIDENCES FURNISHED. IT IS ALSO W ORTHWHILE TO NOTE THAT FOR ALL THE YEARS COVERED BY THE PROVI SIONS OF SECTION 153A I.E. A.Y.1999-2000 TO 2004-2005 THE EV IDENCES HAVE BEEN ADMITTED BY THE LD.CIT(A) U/R 46A OF THE I.T. RULES, 1962 AND AFTER CALLING FOR THE REMAND REPORT THE APPEALS HAVE BEEN DECIDED. THE REASONS FOR NOT FURN ISHING THE EVIDENCES AT THE ASSESSMENT STAGE IN THE EARLIE R YEARS WERE ALSO IDENTICAL AS UNDER THE YEAR UNDER APPEAL. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES IT IS REQUESTE D THAT THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE BE K INDLY ADMITTED BY THE HON. INCOME TAX APPELLATE TRIBUNAL SINCE THE APPEAL HAS BEEN DECIDED WITHOUT GIVING SUFFICIE NT OPPORTUNITY TO THE APPELLANT AND WOULD ONLY FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. 4. THE LD.CIT-DR HAS CALLED FOR COMMENTS OF THE AO. SHE PLACED ON RECORD COPY OF THE COMMENTS GIVEN BY THE AO VIDE LETTER DATED 23.4.2017. IN THE FIRST PARAGRAPH THE LD.AO HAS GIVEN A BRIEF BACKGROUND OF THE ADDITIONS, AND THEREAFTER MADE FOLLOWING COMMENTS: (II) THE PARA-WISE COMMENTS ARE AS UNDER: ITA NO.1073/AHD/2011 4 PARA-1: NO COMMENTS BEING FACTUALLY VERIFIED AND FOUND CORR ECT: PARA-2/3/4/5 AS THE MATTER HAS ALREADY BEEN DECIDED BY CIT(A), T HE UNDERSIGNED IS NOT COMPETENT TO MAKE ANY COMMENTS O N THE FINDING GIVEN BY THE CIT(A) ON THE SUBMISSIONS MADE BY ABOVE NAMED APPELLANT. (A) IN PARA-2, IT IS NOTICED THAT THE ASSESSEE HAD NOT DISCHARGE THE ONUS CAST UPON HER TO EXPLAIN THE SOU RCE & GENUINENESS OF THE GIFTS & DEPOSITS, WHICH SHE ALSO FAILED TO PROVE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. (B) IT IS FURTHER NOTICED THAT EVEN THOUGH SHE W AS GIVEN REASONABLE OPPORTUNITIES, TO FURNISH THE ADDITIONAL EVIDENCES, SHE HAS WRONGLY STATED TO HAVE DEPRIVED OF SAME. 3. IN VIEW OF ABOVE, I AM OF OPINION THAT THE PLEA OF THE ASSESSEE TO ADMIT ADDITIONAL EVIDENCES MAY NOT BE CONSIDERED AS DESPITE GIVING SUFFICIENT OPPORTUNITI ES AT ASSESSMENT/APPELLATE STAGE, SHE COULD NOT PRESENT H ER CASE WITH EVIDENCES. 5. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. RULE 29 OF THE INCOM E TAX (APPELLATE TRIBUNAL) RULES CONTEMPLATES THAT NO PAR TY SHALL BE ENTITLED TO PRODUCE ANY EVIDENCE BEFORE THE TRIBUNA L UNLESS THE TRIBUNAL FEELS NECESSITY OF DOCUMENTS FOR ADJUDICAT ION OF THE ISSUES. IT HAS BEEN DEMONSTRATED BEFORE US THAT DO CUMENTS IN THE SHAPE OF GIFTS DEED AND OTHER DETAILS COULD NOT BE FILED BEFORE THE AO ON ACCOUNT OF PAUCITY OF TIME. WHEN AN EFFORT W AS MADE TO PRODUCE THESE DOCUMENTS BEFORE THE LD.CIT(A), THE L D.CIT(A) DID ITA NO.1073/AHD/2011 5 NOT ENTERTAIN THESE DOCUMENTS ON THE GROUND THAT TH ESE WERE NOT VERIFIED BY THE AO. A PERUSAL OF THE REPLY GIVEN BY THE AO WOULD INDICATE THAT THE LD.AO HAS NOT GIVEN ANY COMMENTS ON THE SUBMISSIONS MADE BY THE ASSESSEE THAT HER TAX CONSU LTANT WAS HANDLING MORE THAN 300 ASSESSMENTS OF THE GROUP. S HE HAD FACED A LOT OF DIFFICULTY IN COLLECTING EVIDENCES WITHIN A SPECIFIED TIME FRAME, AND THEREFORE, CERTAIN DOCUMENTS COULD NOT B E FILED. ON THIS ASPECT, THE LD.AO IS TOTALLY SILENT. HE SIMPL Y OBSERVED THAT SUFFICIENT OPPORTUNITIES WERE GRANTED TO THE ASSESS EE. A PERUSAL OF THE ASSESSMENT ORDER WOULD INDICATE THAT NOTICE UND ER SECTION 143(2) OF THE ACT WAS ISSUED ON 1.12.200, AND THE A SSESSMENT ORDER WAS PASSED ON 29.12.2006. THUS, THE TIME GIV EN BY THE AO WAS OF ONLY 28 DAYS. IT WAS AN INSUFFICIENT TIME T O SUBMIT ALL THE DETAILS. CONSIDERING THESE ASPECTS, WE ARE OF THE VIEW THAT FOR A JUST DECISION OF CONTROVERSY, IT IS ESSENTIAL TO AD MIT ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE. AFTER PLACING EVIDENCE ON RECORD, WE ARE OF THE VIEW THAT IT REQUIRES EXAMINA TION OF THAT EVIDENCE BY THE AO AND AN OPPORTUNITY IS REQUIRED T O BE GIVEN TO THE AO FOR REBUTTING THIS EVIDENCE. THEREFORE, INS TEAD OF KEEPING THE PROCEEDING PENDING AT THE LEVEL OF THE TRIBUNAL , WE DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDERS AND RE STORE THESE ISSUES TO THE FILE OF THE AO FOR RE-ADJUDICATION. THE LD.AO SHALL EXAMINE THE EVIDENCE FILED BY THE ASSESSEE ALONG WI TH THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE, A ND THEREAFTER, ADJUDICATE ALL THE ISSUES. THE AO WILL BE AT LIBER TY TO COLLECT ANY OTHER EVIDENCE RELATING TO THESE ISSUES. IT IS PER TINENT TO OBSERVE THAT IN ALL OTHER YEARS I.E. ASSTT.YEAR 1999-2000 A ND ASSTT.YEAR ITA NO.1073/AHD/2011 6 2004-05, THE ADDITIONAL EVIDENCE WERE ADMITTED BY T HE LD.CIT(A) UNDER RULE 46A. ACCORDINGLY, THE APPEAL OF THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 7 TH SEPTEMBER, 2017. SD/- SD/- (N.K. BILLAIYA) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER