Shri Samirbhai Kiranbhai Thakkar, Ahmedabad V. The Income Tax Officer, Ward-1(2), Bhavnagar

ITA 1270/AHD/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8288 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 29-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR JAYANT JHAVERI
• Assessee Lawyers: ROHAN N POPAT
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1270/AHD/2014 & 1922/AHD/2016 (ASSESSMENT YEAR: 2010-11) SAMIRBHAI KIRANBHAI THAKKAR PROP. SHREE BALAJI TRADING CO. 205, 2 ND FLOOR, D & I EXCELUS, OPP. HOME SCHOOL, BHAVNAGAR V/S INCOME TAX OFFICER, WARD- 1 (2), BHAVNAGAR (APPELLANT) (RESPONDENT) PAN: ACNPT2838C APPELLANT BY : SHRI ROHAN N. POPAT RESPONDENT BY : DR. JAYANT JHAVERI, SR. D.R. ( )/ ORDER DATE OF HEARING : 07 -05-201 8 DATE OF PRONOUNCEMENT : 11-05-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THESE TWO APPEALS ARE BEING FILED BY THE ASSESSEE A RE DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-XX, AHMEDABAD DATED 04.02.2014 PE RTAINING TO A.Y. 2010- 11 AND APPELLANT HAS TAKEN SOLELY GROUND THAT LD. C IT(A) HAS ERRED IN LAW AND ITA NOS. 1270/AH D/14 & 1922/AHD/2016 . A.Y. 2010-1 1 2 ON FACTS IN CONFIRMING THE ADDITION OF RS. 15,00,00 0/- ORIGINALLY MADE BY THE A.O. BY INVOKING THE PROVISIONS OF SECTION 68 OF TH E ACT. 2. FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASS ESSMENT PROCEEDINGS, IT WAS SEEN FROM VARIOUS DETAILS FILED BY THE ASSESSEE THA T THE ASSESSEE HAS BORROWED AN AMOUNT OF RS. 15,00,000/- FROM SHRI DIPIN G. PAT EL (PROP. OF M/S. DEEPAK ENTERPRISE) DURING THE FINANCIAL YEAR 2008-09. 3. IN ORDER TO FURTHER EXAMINE THE CASE FIND OUR MORE FACTS, SUMMONS WAS ISSUED TO SHRI DIPIN PATEL, PROP, OF M/S. DEEPAK ENTERPRIS E AND HIS STATEMENT ON OATH WAS RECORDED U/S. 131(1) OF THE ACT. AS PER SH RI DIPIN PATEL, HE IS IN THE BUSINESS OF GIVING ENTRIES AND ANYONE WHO APPROACHE S HIM WITH CASH AND WANTS A BANK ENTRY, CASH IS DEPOSITED IN ONE OF HIS ACCOU NTS AND THE SAME IS GIVEN BACK TO THE PARTY IN THE FORM OF CHEQUE OR DEMAND D RAFT OF RTGS OR FUNDS TRANSFER. HE ALSO STATED THAT HE ROUTES THE CASH GI VEN BY HIS CLIENTS THROUGH HIS VARIOUS BANK ACCOUNTS AND ALSO MAKE CHEQUE PAYMENTS TO OTHER PARTIES ON BEHALF OF HIS CLINETS. FOR THIS, HE CHARGES A COMMI SSION OF RS. 25/- TO RS. 50/- PER ONE LAKH. HE CATEGORICALLY DENIED HAVING GIVEN ANY LOAN TO M/S. SHREE BALAJI TRADING CO. AND STATED THAT SINCE HIS BOOKS OF ACCOUNTS ARE SEIZED ON 12.08.2010 DUE TO CONDUCT OF SEARCH, HE IS NOT IN A POSITION TO STATE WHETHER HE HAS GIVEN ANY LOAN TO THE ASSESSEE. 4. LIKE APPELLANT IN QUESTION SHRI DIPIN PATEL HAS GIV EN AN ENTRY TO ONE SMT. BINTAL D. BAXI, BHAVNAGAR WHO HAS TAKEN ACCOMMODATI ON ENTRY FROM SHRI DIPIN G. PATEL. BUT LD. A.O. WAS NOT AGREED WITH TH E CONTENTION OF THE APPELLANT AND HELD THAT CASH CREDITS SHOWN IN THE B OOKS OF THE APPELLANT IN THE ITA NOS. 1270/AH D/14 & 1922/AHD/2016 . A.Y. 2010-1 1 3 NAME OF SHRI DIPIN PATEL IS NO MORE GENUINE CASH CR EDITS FOR THE REASONS DISCUSSED ABOVE AND THE ADDITION U/S. 68 WAS MADE B Y THE A.O. 5. THEREAFTER, APPELLANT FILED AN APPEAL BEFORE THE FI RST APPELLATE AUTHORITY BUT TO NO AVAIL AND HE CONFIRMED THE ORDER OF THE LD. CIT( A). 6. WE HAVE GONE THROUGH THE RELEVANT RECORD IN THE IMP UGNED ORDER. LD. A.R. CITED AN ORDER OF CO-ORDINATE BENCH IN ITA NOS. 920 , 921 & 922/AHD/2014 AND CASE TITLED AS SMT. BINTAL D. BAXI VS. ITO PRON OUNCED ON 01.05.2017 WHEREIN IN SIMILAR CIRCUMSTANCES, CO-ORDINATE BENCH HAS SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMANDED THIS MATTER BACK TO THE FILE OF THE A.O. WITH FOLLOWING OBSERVATION:- 20. THE LD.CIT(A) HAS DISCUSSED THIS ISSUE IN LITTL E DETAIL, BUT DEVOTED MUCH ENERGY IN REPRODUCTION OF CIT(A)'S ORDER PASSED IN THE CAS E OF SHRI DIPIN G. PATEL. THE LD.CIT(A) ALSO REPRODUCED THE FINDING OF THE AO, SU BMISSIONS MADE BY THE ASSESSEE. WHILE MAKING AN ANALYSIS OF THE STATEMENT GIVEN BY SHRI DIPIN G. PATEL, THE LD.CIT(A) JUST REITERATED REPLIES GIVEN BY HIM. BUT HE HAS NOT ANALYSED INFERENCE REQUIRED TO BE DRAWN FROM THOSE REPLIES. BASICALLY, THE LD.CIT(A) WAS OF THE OPINION THAT IT IS THE ONUS UPON THE ASSESSEE T O PROVE SOURCE OF LOAN AND ITS NATURE. ONCE THE ASSESSEE FAILED TO FILE CONFIRMATI ON FROM CREDITOR, THEN IT WILL BE CONSTRUED THAT SHE FAILED TO DISCHARGE ONUS. AS OBS ERVED EARLIER, IN THE NORMAL CIRCUMSTANCES, THE LD.CIT(A)'S ACTION COULD BE APPR ECIATED. BUT, IT IS TO BE SEEN IN THE CONTEXT THAT WHEN A CREDITOR TURN HOSTILE, THEN WHETHER AN ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO PROVE HIS CASE WITH THE HEL P OF CIRCUMSTANTIAL EVIDENCE OR NOT. THE ROLE OF THE AO IS NOT ONLY OF PROSECUTOR, RATHER HE IS AN ADJUDICATOR ALSO. IT IS FOR THE REVENUE TO PROVIDE A PLATFORM TO THE ASSESSEE WHERE WITH THE HELP OF STATUTORY POWERS OF THE AO, SHE COULD EXPLAIN HER P OSITION FOR NOT VISITING HER WITH TAX LIABILITY. ITA NOS. 1270/AH D/14 & 1922/AHD/2016 . A.Y. 2010-1 1 4 21. LOOKING INTO THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPUGNED ORDERS DESERVES TO BE SET ASIDE BECAUSE THE ASSESSE E WAS NOT GRANTED SUFFICIENT OPPORTUNITY AT THE LEVEL OF THE AO. THESE APPEALS A RE REMITTED TO THE FILE OF THE AO FOR RE-ADJUDICATION. THE LD.AO SHALL EXAMINE THE LEDGER ACCOUNT OF THE ASSESSEE EXHIBITING DETAILS OF LOANS RECEIVED BY TH E ASSESSEE THROUGH ACCOUNT PAYEE CHEQUE, AND THEREAFTER HE WOULD DIRECT THE BA NK FOR PROVIDING BANK STATEMENT OF THE CREDITOR DURING THOSE PERIODS. HE WOULD SUPPLY ALL INCRIMINATING MATERIALS TO THE ASSESSEE FOR GIVING AN EXPLANATION . THE ASSESSEE WILL BE AT LIBERTY TO SUBMIT ANY EXPLANATION OR DETAILS IN SUPPORT OF HER DEFENCE. 22. THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR INJURE THE CASE OF THE AO AND WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANA TION OF THE ASSESSEE. 23. IN THE RESULT ALL APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSE. 7. SINCE IN IDENTICAL FACT AND CIRCUMSTANCES, CO-ORDI NATE BENCH HAS SET ASIDE THE ORDER OF THE LD. CIT(A) REMANDED THIS MATTER BACK T O THE FILE OF THE A.O. RESPECTFULLY FOLLOWING THE CO-ORDINATE BENCH DECISI ON, WE ALSO SET ASIDE ORDER OF THE LD. CIT(A) AND REMANDED THIS MATTER BACK TO THE FILE OF THE A.O. AND A.O. SHALL EXAMINE THE LEDGER ACCOUNT ALL THE DETAI LS PERTAINING TO TRANSACTION TO BE FILED BY THE APPELLANT AND THEREAFTER HE WILL DE CIDE THE MATTER IN ACCORDANCE WITH THE LAW AND ASSESSEE IS ALSO DIRECTED TO COOPE RATE WITH THE ASSESSING OFFICER AND WILL APPEAR AS AND WHEN CALLED BY THE L D. ASSESSING OFFICER. 8. IN THE RESULT, APPEAL FILED BY THE APPELLANT IS ALL OWED FOR STATISTICAL PURPOSE. 9. SO FAR IN ITA NO. 1922/AHD/2016 IS CONCERNED IN QUA NTUM APPEAL, WE HAVE SET ASIDE THE ORDER OF THE LD. CIT(A) REMANDED THIS MATTER BACK TO THE FILES OF ITA NOS. 1270/AH D/14 & 1922/AHD/2016 . A.Y. 2010-1 1 5 THE A.O. TO DECIDE DE NOVO AND CASE IN HAND IS A PE NALTY APPEAL ARISING OUT OF THE ITA NO. 1270/AHD/2014. THUS, WE ALSO SET ASIDE THE ORDER OF THE LD. CIT(A). IN THIS PRESENT CASE, WE REMANDED THIS MATT ER BACK TO THE FILE OF THE A.O. TO DECIDE ALONG WITH QUANTUM APPEAL IN ITA NO. 1270/AHD/2014. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 11- 05- 201 8 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 11/05/2018 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,AHME DABAD