The ITO, Ward-6(5), Ahmedabad V. Shri Hiren Nandubhai Amin, Ahmedabad

ITA 1264/AHD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6951 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-11-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 28-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Assessee Lawyers: N C AMIN
• Keywords: Unexplained investment; Gift
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI ANIL CHATURVEDI , A.M. & SHRI KUL BHARAT, J.M. ) I. T. A. NO. 1264 / AHD/ 20 1 1 (A SSESSMENT YEAR: 2006 - 07) INCOME - TAX OFFICER WARD - 6 (5), C.U. SHAH CHAMBERS ASHRAM ROAD, AHMEDABAD V/S SHRI HIREN NANDUBHAI AMIN, B - 7, SARVODYA NAGAR SOCIETY, PART - 1, SOLA ROAD, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ADYPA 6004H APPELLANT BY : SHRI V. K. SINGH, SR. D.R. RESPONDENT BY : SHRI N.C. AMIN, A.R. ( )/ ORDER DATE OF HEARING : 28 - 11 - 2014 DATE OF PRONOUNCEMENT : 12 - 12 - 2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER OF CIT(A) - XI, AHMEDABAD DATED 28.02.2011 FOR A.Y. 2006 - 07. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE ENGAGED IN THE BUSINESS OF TRADING IN CLOTH AND READYMADE GARMENTS. ASSESSEE FILED HIS RETUR N OF INCOME FOR A.Y. 06 - 07 ON 06.10.2006 D ECLARING TOTAL INCOME OF RS. 94,490/ - . THE CASE WAS SELECTED FOR SC RUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SE CTION 143(3) VIDE ORDER DATED 29 .12 .2008 AND THE TOTAL INCOME WAS DETERMINED AT RS. 11 , 00,49 0/ - . AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE CIT(A) WHO ITA NO 1264/AHD/2011 . A.Y. 2006 - 07 2 VIDE ORDER DATED 28 .02.2 011 GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AF ORESAID ORDER OF CIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUND; - 1. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE AO TO VE RIFY THE CONTENTIONS OF THE ASSESSEE AND DELETE THE ADDITION OF RS.9,99,000/ - MADE U/S 68 ON ACCOUNT OF UNACCOUNTED INVESTMENT IN SHARES OF GSPL, SUBJECT TO VERIFICATION, IN CONTRAVENTION OF SEC. 251. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CO MMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A) MAY BE SET - ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. DURING THE COURSE OF AS SESSMENT PROCEEDINGS ON THE BASIS OF AIR INFORMATION RECEIVED BY THE A.O, IT WAS NOTICED THAT ASSESSEE HAD MADE SHARE INVESTMENT IN GSPL WORTH RS. 9,99,000/ - . THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF INVESTMENT TO WHICH ASSESSEE INTERALIA SUBMITTED THAT HE HAD RECEIVE LOAN FROM SHRI NALINBHAI AMIN AS WELL AS FROM MERCANTILE CO - OPERATIVE BANK LTD. AND FROM CENTURION BANK OF PUNJAB. THE ASSESSEE WAS ASKED TO PROVIDE EVIDENCE ABOUT LOAN FROM CENTURION BANK OF PUNJAB AND WAS ALSO ASKED THE DETAILS OF THE BANK ACCOUNT IN WHICH THE LOAN AMOUNT RECEIVED F ROM NALINBHAIK AMIN AS WELL AS M ERCANTILE CO - OPERATIVE BANK LTD. WAS DEPOSITED. A.O NOTED THAT ASSESSEE HAD FAILED TO SUBMIT THE DETAILS OF THE BANK ACCOUNT IN WHICH THE LOAN AMOUNT WAS SAID TO HAVE DEPOSITE D AND HAD ALSO NOT PROVIDED THE BANK ACCOUNT NUMBER FROM HE HAD ISSUED THE CHEQUE FOR INVESTMENT. THE SUBMISSION OF THE ASSESSEE WITH RESPECT TO RECEIPTS OF GIFT DEEDS WAS ALSO NOT FOUND ACCEPTABLE TO THE A.O. HE ACCORDINGLY CONSIDERED THE INVESTMENTS MAD E BY THE ASSESSEE TO BE FROM UNACCOUNTED SOURCE OF INCOME AND ACCORDINGLY ADDED THE INVESTMENT OF RS. 9,99,000/ - TO THE INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE CIT(A) WHO DECIDED THE ISSUE BY HOLDING AS UN DER: - 2.2 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE A.R. OF THE APPELLANT AND THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. APPELLANT PAID RS. 9,99,000/ - TOWARDS THE APPLICATION MONEY FOR ALLOTMENT OF SHARES OF GSPL. AS SEEN FROM P ARA 4(A) OF THE ASSESSMENT ORDER, HE EXPLAINED THE SOURCES TO BE: - 1. RS. 4,99,500/ - HAS BEEN MET FROM THE LOAN TAKEN FROM CENTURIAN BANK OF PUNJAB. 2. RS. 2,52,150/ - HAS BEEN MET BY WAY OF TAKING UNSECURED LOAN FROM HIS RELATIVE SHRI NALINBHAI RAMBHAI RAMBHAI AMIN. ITA NO 1264/AHD/2011 . A.Y. 2006 - 07 3 3. RS. 2,00,000/ - BY WAY OF LOAN TAKEN FROM THE AHMEDABAD MERCANTILE CO.OP BANK LTD. 4 RS. 1,23,000/ - BY WAY OF LOAN TAKEN FROM AHMEDABAD MERCANTILE CO.OP BANK. APPELLANT S EXPLANATION BEFORE THE A.O. IS REPRODUCED AT PARA - 6 OF THE ASS ESSMENT ORDER. REASONS FOR REJECTING THE EXPLANATION BY THE A.O. ARE CONTAINED IN PARA 7 OF THE ORDER. IN SUPPORT OF THE CONTENTIONS, LEARNED A. R. FURNISHED COPIES OF LETTER DATED 18 - 12 - 08 AND CERTIFICATE DATED 20 - 01 - 2009 FROM HDFC BANK, AHMEDABAD FOR HAV ING OBTAINED LOAN OF RS. 4,99,500/ - ; COPIES OF BANK ACCOUNT NO. 301 OF SHRI. NALINBHAI RAMBHAI AMIN AND APPELLANT'S BANK A/C NO. 3929 FOR HAVING RECEIVED RS. 2,52,150/ - ON CLEARING; COPIES OF ACCOUNTS WITH THE AHMEDABAD MERCANTILE CO.OP. BANK LTD., BEARING NOS. 4160 AND 8 EVIDENCING WITHDRAWAL OF RS. 2,00,000/ - AND RS. 1,24,000/ - OF THE LOAN RESPECTIVELY AND COPY OF APPELLANT'S ACCOUNT NO. 3929 EVIDENCING THE CORRESPONDING TOTAL DEPOSIT OF RS. 3,24,000/ - IN THE SAID ACCOUNT. IT IS ALSO SEEN FROM THE SAID TH E LETTER ACCOUNT THAT RS. 5,04,300/ - WAS DEBITED ON 28 - 01 - 2006 'TO CLG. GSPL'. THUS APPELLANT HAS BEEN ABLE TO SUBSTANTIATE THE EXPLANATION FOR SOURCES (FOR SHARE APPLICATION MONEY FILED BEFORE THE A.O). SINCE PART OF THE ABOVE EVIDENCE WAS NOT BEFORE A.O. , HE IS DIRECTED TO VERIFY THE VERACITY OF THE ABOVE MENTIONED EVIDENCES AND DELETE THE ADDITION. THUS, SUBJECT TO VERIFICATION, THIS GROUND OF APPEAL IS ALLOWED. 5. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US . 6. BEFORE US, LD. D. R. POINTED TO THE FINDINGS OF A.O. HE FURTHER SUBMITTED THAT CIT(A) HAD REMANDED THE ISSUE TO THE FILE OF A.O TO VERIFY THE CONTENTIONS OF THE ASSESSEE AND THEREAFTER DEAL THE ADDITION. LD. D.R. SUBMITTED THAT CIT(A) U/S 251(1 )( A) ONLY HAS THE POWER TO CON FIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT BUT HAS NO POWER TO SET ASIDE THE ASSESSMENT. HE THEREFORE SUBMITTED THAT SETTING ASIDE THE ISSUE TO THE FILE OF A.O. IS NOT AS PER THE PROVISIONS OF THE ACT. LD. A.R. ON THE OTHER HAND, SUBMITTED THAT CIT(A) H AS NOT SET ASIDE THE ISSUE TO A.O BUT HAS ONLY DIRECTED TO VERIFY THE CONTENTIONS OF THE ASSESSEE AND THEREAFTER DELETE THE ADDITION. HE THUS SUPPORTED THE ORDER OF CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND T HAT CIT(A) WHILE DECIDING THE ISSUE HAD DIRECTED THE A.O TO VERIFY THE VARIOUS EVIDENCES SUBMITTED BY THE ASSESSEE AND THEREAFTER DEL ETE THE ADDITION. AT THIS MOMENT IT WILL BE RELEVANT TO REFER TO RELEVANT PROVISIONS OF SECTION 251 WHICH READS AS UNDER: - POWERS OF THE COMMISSIONER (APPEALS) ITA NO 1264/AHD/2011 . A.Y. 2006 - 07 4 251 (1) IN DISPOSING OF AN APPEAL, THE COMMISSIONER (APPEALS) SHALL HAVE THE FOLLOWING POWERS - (A) IN AN APPEAL AGAINST AN ORDER OF ASSESSMENT, HE MAY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. 8. THE PERUSAL OF PROV ISIONS OF SECTION 251(1 )( A) REVEALS THAT CIT(A) IN AN APPEAL AGAINST AN ORDER OF ASSESSMENT CAN CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. THE POWER OF SETTING ASIDE WHICH WAS AVAILABLE TO CIT(A) IS NO MORE AVAILABLE TO CIT(A) BY VIRTUE OF AMENDMENT MADE BY FINANCE ACT 2001 WITH EFFECT FROM 1.06.2001. THUS IT CAN BE SEEN THAT CIT(A) HAS SET ASIDE THE ISSUE TO THE FILE OF A.O, THE POWERS OF WHICH ARE NOT AVAILABLE TO HIM AT THE RELEVANT TIME . WE THEREFORE ARE OF THE VIEW THAT THE MATTER NEEDS TO BE R E STORED TO THE FILE OF CIT(A) FOR CONSIDER ING THE SUBMISSIONS OF THE ASSESSEE AND THEREAFTER DECIDING THE ISSUE ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE CASE AND IN ACCORDANCE WITH LAW. IN THE RESULT THIS GROUND OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL P URPOSES. ORDER PRONOUNCED IN OPEN COURT ON 12 - 12 - 201 4 . SD/ - SD/ - (KUL BHARAT ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE . BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD