DEVJIBHAI DHANJIBHAI GABANI, HUF, Surat V. THE ITO, WARD-9(1), Surat

ITA 1174/AHD/2009

• Counselvise Citation: 117420514 RSA 2009
• Duration Of Justice: 2 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-01-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 15-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: D K PARIKH
• Keywords: Unexplained cash credit; Wrong claim
• Section: 68

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , . .!'#$, % & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ./ I.T.A. NO.1174/AHD/2009 ( ( ) ( ) ( ) ( ) / / / / ASSESSMENT YEAR : 2003-04) DEVJIBHAI DHANJIBHAI GABANI HUF 68-69, VALLABHNAGAR SOCIETY VARACHHA ROAD, SURAT ( ( ( ( / VS. THE ITO WARD-9(1) SURAT * % ./+, ./ PAN/GIR NO. : AABHD 3018 C ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 / APPELLANT BY : SHRI D.K.PARIKH, A.R. ./*- 1 0 / RESPONDENT BY : SHRI C.K. MISHRA, SR. D.R. (2 1 3% / / / / DATE OF HEARING : 4/01/2012 4') 1 3% / DATE OF PRONOUNCEMENT : 13.1.12 5 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-V SURAT DATED 17/02/2009. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 145(1) &145(3) OF TH E I.T.ACT DATED ITA NO.1174/AHD /2009 DEVJIBHAI DHANJIBHAI GABANI HUF VS. ITO ASST.YEAR - 2003-04 - 2 - 24.10.2005 AND AN ORDER U/S.271(1)(C) DATED 27.03.2 008 WERE THAT AN ADDITION OF UNEXPLAINED INCOME OF RS.4,69,158/- WAS MADE WHICH WAS DISCLOSED UNDER THE HEAD AGRICULTURAL INCOME. APART FROM THE SAID ALLEGED AGRICULTURAL INCOME THERE WERE TWO OTH ER ADDITIONS; ONE WAS IN RESPECT OF WRONG CLAIM OF EXPENSES OF RS.5, 484/- AND THE SECOND WAS IN RESPECT OF UNEXPLAINED DEPOSIT OF RS. 36,000/-. IN RESPECT OF AGRICULTURAL INCOME, GROSS AGRICULTURAL RECEIPTS WERE SHOWN AT RS.9,21,318/- AS FAR AS AN INCOME OF RS. 7,63,101/- WAS CONCERNED, THE SAME WAS STATED TO BE OUT OF THE SAL E OF SUGARCANE CROP. FOR REST OF THE AMOUNT OF RS.1,58,217/- CERT AIN HAND-WRITTEN VOUCHERS WERE PRODUCED IN THE NAMES OF THREE PARTIE S. THE ASSESSING OFFICER WAS NOT SATISFIED AND THE SAID SU M OF RS.1,58,217/- WAS TAXED AS UNEXPLAINED CASH CREDIT BY INVOKING THE PROVISIONS OF SECTION 68 OF THE I.T.ACT. AN ANOTHE R DISCREPANCY WAS NOTED BY THE ASSESSING OFFICER THAT THE ASSESSEE HA D CLAIMED GROSS RECEIPTS OF SALE OF SUGARCANE OF RS.37,63,101/-, WH EREAS AS PER THE STATEMENT OF MANDALI SHOWED THAT THERE WAS DIFFER ENT SALE OF SUGARCANE. IN THE ABSENCE OF SATISFACTORY EXPLANAT ION, THE DIFFERENCE OF RS.5,69,143/- WAS HELD AS INCOME FROM NON-AGRICU LTURAL ACTIVITY. FINALLY, AFTER GIVING THE SET OFF OF A SEPARATE ADD ITION IN THIS ACCOUNT, THE DIFFERENCE OF RS.3,10,941/- WAS TAXED. PENALTY WAS LEVIED IN RESPECT OF THE SAID ADDITION WHICH WAS CONFIRMED B Y THE LEARNED CIT(APPEALS). ITA NO.1174/AHD /2009 DEVJIBHAI DHANJIBHAI GABANI HUF VS. ITO ASST.YEAR - 2003-04 - 3 - 3. AFTER HEARING THE SUBMISSIONS OF BOTH THE SIDES, IN THE LIGHT OF THE ABOVE FACTS, WE HAVE BEEN INFORMED THAT THE ITA T D BENCH AHMEDABAD IN ITA NO.1249/AHD/2007 FOR A.Y. 2003-04 TITLED AS DEVJIBHAI DHANJIBHAI VS. ITO ORDER DATED 22/01/20 10 VIDE PARAGRAPH NO.6 HAS DELETED THE ADDITION AS FOLLOWS: - 6. CONSIDERING THE FACTS OF THE CASE, IN THE LIGHT OF THE ABOVE ORDER, IT IS CLEAR THAT ASSESSEE HAS RENTAL A ND INTEREST INCOME WHICH IS ASCERTAINED. ASSESSEE HAS NO OTHER SOURCE OF INCOME EXCEPT THE AGRICULTURAL INCOME. THE ASSESSI NG OFFICER HAS NOT BROUGHT ANY EVIDENCE ON RECORD AS TO WHAT W AS THE OTHER INCOME OF THE ASSESSEE BEING INCOME FROM OTHE R SOURCES. THEREFORE, BOTH THE ADDITION ARE UNJUSTIFIED AND AR E LIABLE TO BE DELETED. BY FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL, WE DELETE BOTH THE ADDITION OF RS.1,58,217/- AND RS.3, 10,941/-. AS A RESULT, GROUND NO.2 AND 3 OF THE APPEAL OF THE ASSESSEE ARE ALLOWED. 4. ONCE THE IMPUGNED ADDITION WHICH WAS THE BASIS F OR LEVY OF CONCEALMENT PENALTY HAS ALREADY BEEN DELETED BY THE RESPECTED CO- ORDINATE BENCH, CONSEQUENT THEREUPON, THE PENALTY D O NOT SURVIVE, HENCE HEREBY DIRECTED TO DELETE THE SAME. REST OF THE AMOUNTS, I.E. 5,484/- BEING WRONG CLAIM OF EXPENSE AND RS.36,000/ - BEING UNEXPLAINED DEPOSIT THE AMOUNTS ARE PETTY IN NATURE AND THE ASSESSEE HAS PLACED RELIANCE ON CIT VS. RELIANCE PETRO PRODU CTS (P) LTD. 322 ITR 158(SC) AND NATIONAL TEXTILES VS. CIT 249 ITR 125(GUJ.). APART FROM THESE DECISIONS, THERE ARE TWO MORE DECI SIONS ON THE SUBJECT THAT WHETHER MERELY ON ESTIMATION A PENALTY CAN BE LEVIED ITA NO.1174/AHD /2009 DEVJIBHAI DHANJIBHAI GABANI HUF VS. ITO ASST.YEAR - 2003-04 - 4 - AND THE CASE LAWS ARE; HON'BLE PUNJAB & HARYANA HIG H COURT IN THE CASE OF CIT VS. DHILLON RICE MILLS 256 ITR 447 (P&H ) AND HARIGOPAL SINGH VS. CIT 258 ITR 85 (P&H). RESPECTF ULLY FOLLOWING THESE DECISIONS, WE HEREBY DIRECT TO DELE TE THE PENALTY IN RESPECT OF THESE TWO PETTY ADDITIONS. GROUND IS A LLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. SD/- SD/- ( . .!'#$ ) ( ) % ( A.K. GARODIA ) ( M UKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13 / 01 /2012 63..(, .(../ T.C. NAIR, SR. PS 5 1 .7 8 7) 5 1 .7 8 7) 5 1 .7 8 7) 5 1 .7 8 7)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. 9 / CONCERNED CIT 4. 9() / THE CIT(A)-V, SURAT 5. 7 >> >/ // / + + + + ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD