Shri Chandra M.Tandel, Valsad V. The Income tax Officer, Ward-1, Valsad

ITA 1205/AHD/2005

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9362 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-11-2010
• Assessment Year: 1995-1996
• Appeal Filed On: 26-04-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H P MEENA SRDR
• Keywords: Reopening of assessment; Unexplained cash credit
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD B BENCH BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT (AZ) AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.1204-1205/AHD/2005 [ASSTT.YEARS 1994-95 & 1995-96] SHRI CHANDRA M TANDEL -VS- INCOME TAX OFFICER, WAR D-1, 101, THIRAJ APARTMENT, TITHALA VALSAD ROAD, VALSAD PAN NO.ADLPP9410D (APPELLANT) (RESPONDENT) REVENUE BY : SHRI H.P. MEENA, SR-DR ASSESSEE BY: SHRI HARDIK VO RA, AR O R D E R PER BENCH:- THESE TWO APPEALS BY ASSESSEE ARE ARISING OUT OF C OMMON ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS) VALSAD IN APPE AL NO.CIT(A)/VLS/299- 300/03-04 DATED 22-11-2004. THE ASSESSMENTS WERE FR AMED BY ITO, WARD-1, VALSAD U/S 143(3) R.W.S 147 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDERS OF EVEN DATE 06-01 -2004 FOR THE ASSESSMENT YEARS 1994-95 AND 1995-96 2. THE FIRST COMMON ISSUE IN THESE APPEALS OF THE A SSESSEE IS AS REGARDS TO REOPENING OF ASSESSMENT U/S.147 R.W.S. 148 OF TH E ACT. 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE, SHRI HARDIK VORA HAS NOT PRESSED THIS COMMON ISSUE. ACCORDINGLY, THE SAME IS DISMISSED AS NOT PRESSED. ITA NO.1024-05/AHD/2005 A.Y. 94-95 & 95-96 SH CHANDRA M TANDEL V. ITO WD-1, VLS PAGE 2 4. THE NEXT COMMON ISSUE IN THESE APPEALS OF ASSESS EE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ADDITION MADE BY ASS ESSING OFFICER ON ACCOUNT OF CASH CREDIT OF RS.2,65,260/- IN ASSESSMENT YEAR 1994-95 AND RS.2,31,416/- IN ASSESSMENT YEAR 1995-96. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT, NO DOUBT A SSESSING OFFICER HAS PROVIDED MANY OPPORTUNITIES TO THE ASSESSEE TO PRES ENT HIS CASE BUT THE ASSESSEE HAS FAILED TO COMPLY WITH THE NOTICES AND HAS NOT AVAILED OPPORTUNITIES GRANTED BY AO AND ACCORDINGLY HE MADE ADDITION OF UNEXPLAINED CREDITS IN BOTH YEARS. AGGRIEVED, ASSESSEE PREFERRE D APPEAL BEFORE CIT(A). 6. BEFORE CIT(A) ASSESSEE CLAIMED VIDE REPLY DATED 04-11-2004, WHICH IS BEING REPRODUCED AS UNDER:- WITH THIS DULY SIGNED DOCUMENTS (SATAKHAT) XEROX C OPY IS PRODUCE HEREWITH IN WHICH SHRI KRITKUMAR S DESAI HAS GIVEN RS.6,00,000/- TO ME TO PAY IN GUJARAT SATE FINANCE CORPORATION AND THE SAID GUJARAT STATE FINANCIAL CORPORATION HAS ACKNOWLEDGED THE RECEIPT OF THE SAME. AND TO THE SAME THE XEROX COPY IS SUBMITTED PRODUCE BEF ORE INCOME-TAX COMMISSIONER. AND THE FIXED DEPOSIT BEARING NUMBER: 4118 AND 4119 WHICH STANDS IN THE NAME OF RASHMIBEN R NAIK AND RA MESHCHANDRA AUTHORIZED REPRESENTATIVE NAIK, THE SAME WAS WITHDR AWN BY SHRI KIRITKUMAR S DESAI FOR RS.6,00,000/- THE SAME ALSO PRODUCE BEFORE YOUR HONOUR. THE XEROX COPY OF DOCUMENTS OF SUM BORROWER AND LENDER, THE DOCUMENTS REGISTER NUMBER:464 ALSO PRODUCE HEREWITH . IN THE ABOVE SAID CASE, THROUGH MY ADVOCATE I HAVE MADE A FALSE DOCUMENTARY EVIDENCE FOR THE PURPOSE OF FISHING BUS INESS, FOR WHICH I AM EXTREMELY SORRY FOR THE SAME. I HAVE BOR ROWED THE SUM FROM THE LENDER AND SAME I HAVE DEPOSITED IN \ THE GUJARAT STATE FINANCIAL CORPORATION, THE SAID DOCUMENTS I H AVE TO SHOW IN THE INCOME-TAX AND THE SAME I HAVE NOT PRODUCE BEFO RE THEM, SO I MY CASE I AM FACING CONFUSION AND FOR WHICH I FEE L SORRY AND THE MISTAKE WHICH I HAVE COMMITTED, THE SAME I AM A FAC ING BADLY. I COMMIT MY MISTAKE BEFORE YOUR HONOUR IN A VERY GENU INE MANNER, FOR WHICH PLEASE FORGIVE ME AND IF THE FORG IVENESS GIVEN BY YOU I WILL REMAIN EVER GRATEFUL TO YOU, FOR WHIC H I PRAY. ITA NO.1024-05/AHD/2005 A.Y. 94-95 & 95-96 SH CHANDRA M TANDEL V. ITO WD-1, VLS PAGE 3 WHEN THIS REPRESENTATION WAS SENT TO ASSESSING OFFI CER FOR REMAND REPORT BY CIT(A), THE AO STATED THIS PLEA WAS TAKEN FOR THE F IRST TIME AND IT WAS NOT TAKEN BEFORE AO AND ACCORDINGLY CIT(A) HAS NOT CONS IDERED THE PLEA OF THE ASSESSEE. 7. WE FIND THAT LOWER AUTHORITIES ARE OBLIGED TO DE CIDE ON MERITS IN CASE ASSESSEE SUBMITS EXPLANATION IN RESPECT OF CASH CRE DITS, EVEN THOUGH FOR THE FIRST TIME BEFORE CIT(A). WE FIND THAT THE ASSESSEE HAS PRODUCED COPIES OF DOCUMENTS IN RESPECT OF TWO LOANS GIVEN BY SHRI KIR ITKUMAR S DESAI FOR MAKING PAYMENT OF RS.6 LAKH TO GUJARAT STATE FINANCE CORPO RATION BY THE ASSESSEE. THE ASSESSEE HAS TRIED TO EXPLAIN THE SOURCE BUT IT WAS NOT ADMITTED BY CIT(A). ACCORDINGLY, IN THE INTEREST OF NATURAL JUS TICE, WE ARE OF THE VIEW THAT THIS COMMON ISSUE NEEDS RE-EXAMINATION IN ENTERITY AT THE LEVEL OF ASSESSING OFFICER AND THIS COMMON ISSUE OF THE ASSESSEES APP EALS IS ALLOWED FOR STATISTICAL PURPOSES BY SENDING BACK TO THE FILE OF ASSESSING OFFICER. 8. IN THE RESULT, BOTH APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS DAY OF 26 TH NOV, 2010 SD/- SD/- ( G.D.AGARWAL ) ( MAHAVIR SINGH ) (VICE PRESIDENT) (JUDICIAL MEMBER) AHMEDABAD, DATED : 26/11/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-VALSAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ ITA NO.1024-05/AHD/2005 A.Y. 94-95 & 95-96 SH CHANDRA M TANDEL V. ITO WD-1, VLS PAGE 4 DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD