The ITO,Vapi Ward-4, Nani Daman V. Shri Nareshbhai Govindbhai Tandel, Nani Daman

ITA 1216/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1293 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 30-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMIR VAKIL
• Assessee Lawyers: S N DIVETIA
• Keywords: Unexplained cash credit; Unexplained investment; Retrospective amendment; Agreed addition; Tax effect
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHR I S. S. GODARA , JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER NARESHBHAI GOVINDBHAI TANDEL, KADAIYA, MACHHIWAD, NANI DAMAN - 396210, PAN: AADPT2631E (APPELLANT /RESPONDENT ) VS THE ITO, VAPI WARD - 4, DAMAN (RESPONDENT /APPEL LANT ) REVENUE BY : S H RI SAMIR VAKIL , SR. D . R. ASSESSEE BY: S H RI S.N. DIVETIA , A.R. DATE OF HEARING : 20 - 06 - 2 016 DATE OF PRONOUNCEMENT : 21 - 06 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THE ASSESSEE AND THE REVENUE HAVE INSTITUTED THESE CROSS APPEAL S FOR A.Y. 2009 - 10 AGAINST ORDER OF THE ORDE R OF THE CIT(A), VALSAD DATED 22 - 02 - 2013 IN APPEAL NO. CI T(A)/VLS/264/11 - 12 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO S . 1181 & 12 1 6 / A HD/20 13 A SSE SSMENT YEAR 200 9 - 10 I.T.A NO S.1181 & 1216 /AHD/20 13 A.Y. 2008 - 09 PAGE NO NARESHBHAI GOVINDBHAI TANDEL VS. ITO 2 2. WE COME TO THE RIVAL PLEADINGS NOW. THE ASSESSEE S APPEAL ITA 1181/AHD/2013 CHALLENGES CORRECTNESS OF UNACCOUNTED INVESTMENT ADDITION OF RS. 25,80,410/ - MADE IN SHARES AS ADDED BY THE ASSESSING OFFICER IN ASSESSMENT ORDER DATED 12 - 12 - 2011 AND UPHELD IN THE LOWER APPELLATE PROCEEDINGS. THE REVENUE S SOLITARY SUBSTANTIVE GROUND SEEKS TO REVIVE SECTION 68 UNEXPLAINED CASH CREDIT ADDITION OF RS. 24,05,000/ - MADE IN REGULAR ASSESSMENT FRAMED HEREINABOVE AND DELETED IN THE LOWER APPELLATE PROCEEDINGS . 3. BOTH THE LEARNED REPRESENTATIVES REITERATE THEIR RESPECTIVE PLEADINGS. THEY FURTHER SUPPORT THE LOWER APPELLATE ORDER TO THE EXTENT, IT HAS GONE IN THEIR RESPECTIVE FAVOUR. THIS ASSESSEE IS A SALARIED INDIVIDUAL. THE ASSESSING OFFICER MADE THE TWO IMPU GNED ADDITIONS OF UNACCOUNTED INVESTMENTS IN SHARES OF RS. 25,80,410/ - AND THAT OF UNEXPLAINED CASH DEPOSITS MADE IN HDFC BANK AND AXIS BANK; RESPECTIVELY AGGREGATING TO RS. 24,05,000/ - . 4. THE ASSESSEE PREFERRED APPEAL ON BOTH COUNTS. HE DOES NOT SEEM TO HAVE BEEN ABLE TO REBUT THE ASSESSING OFFICER S ACTION QUA THE ISSUE OF UNACCOUNTED INVESTMENTS. HE HOWEVER SUBMITTED QUA THE LATTER ISSUE OF UNEXPLAINED CASH DEPOSITS OF RS. 24,05,000/ - THAT THE SAME WAS MADE OUT OF THE INCOME PERTAINING TO THE FORME R INVESTMENT ADDITION AMOUNT OF RS. 25,80,410/ - . HE PRAYED FOR DELETING THE LATTER ADDITION IN OTHER WORDS BY ATTRIBUTING ITS SOURCE TO THE FORMER ONE. THE CIT(A) ACCEPTS THE SAME BY HOLDING THAT THE SAID INVESTMENTS FIND SHELTER IN SOME FORM OF INVESTM ENTS/ASSETS, I.T.A NO S.1181 & 1216 /AHD/20 13 A.Y. 2008 - 09 PAGE NO NARESHBHAI GOVINDBHAI TANDEL VS. ITO 3 THEREFORE, THIS REPRESENTS THE DISCLOSED INCOME AND A BIT OF PAST SAVINGS. THIS LEAVES BOTH THE PARTIES AGGRIEVED TO THE EXTENT INDICATED HEREINABOVE. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATIONS TO RIVAL CONTENTIONS . THE ASSESSEE FIRST O F ALL SEEKS TO DELETE THE ADDITION OF UNACCOUNTED INVESTMENTS AMOUNTING TO RS. 25,80,410/ - . WE FIND THAT HE HAS ALREADY AVAILED NECESSARY RELIEF BY STATING THIS VERY AMOUNT TO HAVE FOUND SOURCE OF THE OTHER ADDITIONS IN BANK DEPOSIT FIGURES OF RS. 24,05,0 00/ - IN COURSE OF THE LOWER APPELLATE ORDER. OUR VIEW IN THESE PECULIAR FACTS AND CIRCUMSTANCES IS THAT IT S A CASE OF AGREED ADDITION SUBJECT TO CONDITION THAT THE OTHER ISSUE IS DECIDED AGAINST THE DEPARTMENT. THIS IS NOT THE AS SESSEE S CASE THAT HE DI D NOT AGREE FOR THE FORMER ADDITION BEFORE THE CIT(A) ON THE CONDITION THAT THE LATTER AMOUNT SOURCE WOULD BE ACCEPTED AS THE FORMER AD DITION AMOUNT. TH E ASSESSEE S ARGUMENTS ARE ACCORDINGLY REJECTED. HIS APPEAL ITA 1181/AHD/2013 FAILS. 6. THIS LEAV ES US WITH REVENUE S APPEAL ITA 1216/AHD/2013 SEEKING TO REVIVE UNEXP LAINED CASH CREDIT ADDITION OF R S. 24,05,000/ - MADE BY THE ASSESSMENT ORDER AND DELETED IN COURSE OF LOWER APPELLATE PROCEEDINGS AS INDICATED IN PRECEDING PARAGRAP HS. THE NET TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN RS. 10 LACS. WE FIND THAT THE CENTRAL BOARD OF DIRECT TAXES; HEREAFTER THE BOARD HAS ISSUED THE CIRCULAR NO. 21/2015 DATED 10 - 12 - 2015 CLEARLY ENVISAGING THEREIN THAT DEPARTMENT S PENDING APPEALS BEFORE THE TRIBUNAL/HI GH I.T.A NO S.1181 & 1216 /AHD/20 13 A.Y. 2008 - 09 PAGE NO NARESHBHAI GOVINDBHAI TANDEL VS. ITO 4 COURTS ARE TO BE WITHDRAWN/NOT PRESSED AS PER THE ABOVE STATED CIRCULAR. THE SAME HAS BEEN DECLARED TO BE HAVING RETROSPECTIVE EFFECT IN OTHER WORDS. WE TAKE INTO CONSIDERATION THE ABOVE STATED BOARD S CIRCULAR AND DISMISS THE INSTANT APPEAL ACCORDING LY. REVENUE S APPEAL ITA 1216/AHD/2013 IS REJECTED. 7. BOTH THE ASSESSEE AND THE REVENUE FAIL IN THEIR RESPECTIVE APPEALS ORDER PR ONOUNCED IN THE OPEN C OURT ON 21 - 06 - 201 6 SD/ - SD/ - ( MANISH BORAD ) ( S. S. GODARA ) ACCOUNTANT MEM BER JUDICIAL MEMBER AHMEDABAD : DATED 21 /06 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,