Hanumanprasad Amilal Sharma, Ahmedabad V. The Income tax Officer,Ward-1(2), Bhavnagar

ITA 1120/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5638 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 02-07-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 12-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND D. C. AGRAWAL , AM) ITA NO.1120/AHD/2010 A.Y.: 2006-07 HANUMANPRASAD AMILAL SHARMA, PROP. GUJARAT SHIP SCRAP CORP., 102, RAJ COMPLEX, SANSKAR MANDAL, TALAJA ROAD, BHAVNAGAR VS THE INCOME TAX OFFICER, WARD-1(2), BHAVNAGAR PA NO. ANKPS 8853 J (APPELLANT) (RESPONDENT) APPELLANT BY NONE (ADJOURNMENT PETITION FILED) RESPONDENT BY SHRI K. M. MAHESH, DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XX, AHMEDAB AD DATED 29 TH JANUARY,2010 FOR ASSESSMENT YEAR 2006-07 CHALLENGIN G THE ADDITION OF RS.10,67,000/- IN RESPECT OF LOAN RECEIVED FROM SHR I BIRBALRAM SHARMA TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE HAD SHOWN TO HAVE ACCEPTED UNSECURED LOANS OF RS.15,47,000/- FRO M SHRI BIRBALRAM SHARMA DURING THE YEAR UNDER CONSIDERATION. THE ASS ESSEE FILED EVIDENCES OF AGRICULTURAL LAND IN THE NAME OF DEPOS ITORS FATHER WITH AN AFFIDAVIT OF THE CREDITOR AND SEVERAL CHEQUES WERE ISSUED. HOWEVER, SOURCE COULD NOT BE EXPLAINED. THE AO CONSIDERING T HAT THERE WAS OPENING BALANCE OF RS.4,80,000/- AND HENCE PEAK CRE DIT IS RS.15,47,000/- (OPENING RS.10,67,000/-). IT WAS NOT ED THAT THE CREDITOR HAS NO AGRICULTURAL LAND. THEREFORE, ADDITION OF RS .10,67,000/- WAS ITA NO.1120/AHD/2010 HANUMANPRASAH AMILAL SHARMA VS ITO- 1(2), BHAVNAGAR 2 MADE. IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) TH AT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING IN SCRAP. THOUGH SETTLED IN BHAVNAGAR, GUJARAT, THE ASSESSEE HAS HIS ROOTS IN R AJASTHAN. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS RECEIVED LOANS AGGREGATING TO RS.10,67,000/- FROM BIRBALRAM SHARMA A RELATIVE WHO HAPPENED TO BE VERY RICH FARMER. THE LOAN WAS RECEIVED IN INSTALLM ENTS THROUGH CROSSED ACCOUNT PAYEE BANK INSTRUMENTS AND ROUTED THROUGH N ORMAL BANKING CHANNEL. THE ASSESSEE FILED AFFIDAVIT OF THE CREDIT OR, COPY OF THE LEDGER ACCOUNT, EVIDENCES OF AGRICULTURAL LAND, EVIDENCES OF TRACTOR, COPY OF ELECTION CARD, COPY OF DRIVING LICENSE, COPY OF TEL EPHONE BILLS ETC. IT WAS SUBMITTED THAT THE AO SHOULD HAVE ACCEPTED THE CONT ENTION OF THE ASSESSEE. THE LEARNED CIT(A) NOTED THAT IN THE ASSE SSMENT YEAR 2005-06, HE HAS DECIDED THE ISSUE IN THE CASE OF THE ASSESS EE IN RESPECT OF THE SAME PERSON. ACCORDINGLY THE APPEAL OF THE ASSESSEE WAS DISMISSED. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. REQUES T FOR ADJOURNMENT WAS MADE WHICH IS REJECTED. 4. THE LEARNED DR RELIED UPON THE ORDERS OF THE AUT HORITIES BELOW. HOWEVER, THE LEARNED DR COULD NOT POINT OUT AS TO H OW THE ISSUE OF CASH CREDIT WOULD BE COVERED IN SUBSEQUENT ASSESSMENT YE AR. 5. ON CONSIDERATION OF THE ABOVE FACTS AND SUBMISS IONS OF THE LEARNED DR, WE ARE OF THE VIEW THAT THE MATTER REQU IRES RECONSIDERATION AT THE LEVEL OF THE LEARNED CIT(A). ACCORDING TO SE CTION 250(6) OF THE IT ACT, THE LEARNED CIT(A) IS REQUIRED TO MENTIONED PO INT OF DETERMINATION AND REASONS FOR DECISION IN THE APPELLATE ORDER. TH E ASSESSEE FURNISHED SEVERAL EVIDENCES BEFORE THE AUTHORITIES BELOW. THE REFORE, THE LEARNED CIT(A) SHOULD HAVE COME TO THE FINDING OF FACT BY R EASONED ORDER THAT HOW THE ISSUE IS COVERED AGAINST THE ASSESSEE. THE LEARNED CIT(A) SHOULD HAVE ALSO RECORDED SPECIFIC FINDING ABOUT THE CREDI TWORTHINESS AND GENUINENESS OF THE TRANSACTION IN THE MATTER. THE L EARNED CIT(A) MERELY ITA NO.1120/AHD/2010 HANUMANPRASAH AMILAL SHARMA VS ITO- 1(2), BHAVNAGAR 3 FOLLOWING HIS ORDER FOR THE EARLIER YEAR DISMISSED THE APPEAL OF THE ASSESSEE. WE ACCORDINGLY, SET ASIDE THE ORDER OF TH E LEARNED CIT(A) AND RESTORE THIS ISSUE TO HIS FILE WITH DIRECTION TO PA SS REASONED ORDER DISCUSSING ALL THE EVIDENCES AND MATERIAL ON RECORD IN THE APPELLATE ORDER BY GIVING REASONS FOR DECISION THEREOF AND BY GIVIN G REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9-07-2010 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 9-07-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD