Shri Radadiya Prabinbhai Vallabhbhai, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2(3), RAJKOT-GUJARAT

ITA 1275/RJT/2010

• Counselvise Citation: 127524914 RSA 2010
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-05-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 19-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: DM RINDANI
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence; Corroborative evidences

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVAST AVA, AM ITA NO.1275/RJT/2010 / ASSESSMENT YEAR 2007-08 SHRI RADADIYA PRABINBHAI VALLABHBHAI, PROP.M/S. PRECIOUS TECHNOCAST AJI IND. AREA, ST.NO.13, POLYTECHNIC ROAD, RAJKOT. PAN: ABGPR6376M. ( */ APPELLANT). VS. THE I.T.O., WARD-2 (3) RAJKOT. +,*/ RESPONDENT -. / ASSESSEE BY SHRI D. M. RINDANI, CA. . / REVENUE BY SHRI M. K. SINGH, D.R. . / DATE OF HEARING 03-05-2012 . / DATE OF PRONOUNCEMENT 04 - 05-2012 / / / / ORDER . .. . . . . . , , , , / T. K. SHARMA, J. M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 16-08-2010 OF THE COMMIS SIONER OF INCOME TAX (APPEALS)-III, RAJKOT FOR THE ASSESSMENT YEARS 2007 -08. 2. THE VARIOUS GROUNDS RAISED IN THIS APPEAL ARE AS UNDER:- 1. THE LEARNED C.I.T.(A)-III, RAJKOT ERRED IN LAW AND ON FACTS IN NOT ADMITTING THE ADDITIONAL EVIDENCE FILED BY THE ASSE SSEE UNDER RULE 46ADURING THE APPELLATE PROCEEDINGS. 2. THE LEARNED C.I.T.(A)-III, RAJKOT ERRED IN LAW A ND ON FACTS IN UPHOLDING A.O.S ACTION IN MAKING AN ADDITION OF RS .3,44,071/- U/S. 68 OF THE ACT. ITA NO.1275 /RJT/2010 2 3. THE LEARNED C.I.T.(A)-III, RAJKOT ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION OF RS.49,389/- MADE BY A.O. ON ACCOUNT OF UNRECONCILED AMOUNT TREATING IT AS UNEXPLAINED DEPO SIT. 4. THE LEARNED C.I.T.(A)-III, RAJKOT ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION OF RS.10,00,000/- MADE BY A .O. BY TREATING UNSECURED LOAN AS UNEXPLAINED AMOUNT. 5. THE LEARNED C.I.T.(A)-III, RAJKOT ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION OF RS.34,52,000/- MADE BY A .O. AS UNEXPLAINED CASH CREDITS U/S.68 OF THE ACT. 6. THE LEARNED C.I.T.(A)-III, RAJKOT ERRED IN LAW A ND ON FACTS IN UPHOLDING A.O.S ACTION IN DISALLOWING RS.11,25,000 /- OUT OF THE INTEREST EXPENSE TREATING IT AS EXPENSE ON ACCOUNT OF INTEREST FREE LOAN ADVANCE. 7. THE LEARNED C.I.T.(A)-III, RAJKOT ERRED IN LAW A ND ON FACTS IN CONFIRMING THE A.O.S ACTION IN NOT ACCEPTING THE CLAIM OF LOSS ON SALE OF SHARES OF RS.1,21,874/- AND RS.1,14,794/- A ND IN TREATING PROFIT ON SALE OF SHARES OF RS.2,09,337/- AS SHORT TERM CAPITAL GAIN OF THE ASSESSEE AND TAKING THE SAME ACCORDINGLY. 8. THE LEARNED C.I.T.(A)-III, RAJKOT ERRED IN LAW A ND ON FACTS IN CONFIRMING THE DISALLOWANCE OF RS.16,58,766/- U/S.4 0(A)(IA) OF THE ACT. 9. THE LEARNED C.I.T.(A)-III, RAJKOT ERRED IN LAW A ND ON FACTS IN CONFIRMING THE ADDITION OF RS.12,50,000/- MADE BY A .O. ON ACCOUNT OF UNSECURED LOAN. 3. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF A SSESSEE, SHRI D. M. RINDANI, CA APPEARED AND POINTED OUT THAT BEFORE TH E LD. CIT(A), THE ASSESSEE HAS FILED ADDITIONAL EVIDENCES IN THE PAPER-BOOK ON 28-04-2010. THE LD..CIT(A) SENT THE SAME TO THE AO. THE AO IN HIS REPORT DATE D 22.07.2010 HAS SUBMITTED THAT DESPITE AMPLE OPPORTUNITIES GIVEN TO THE ASSES SEE, THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE BEFORE THE AO. THEREFORE, THE SE ADDITIONAL EVIDENCES SHOULD NOT BE ADMITTED. THE COUNSEL OF THE ASSESSEE SUBMITTED THAT ALL THESE DOCUMENTS ARE IN SUPPORT F WHATEVER SUBMISSION MADE BEFORE THE AO. THEREFORE, THE ASSESSING OFFICER INSTEAD OF REJECTI NG IT ON TECHNICAL GROUND SHOULD HAVE SUBMITTED HIS REPORT ON MERIT. SINCE T HIS HAS NOT BEEN DONE, HE ITA NO.1275 /RJT/2010 3 SUGGESTED THAT IN THE INTEREST OF JUSTICE, AUTHORIT IES BELOW BE DIRECTED TO ADMIT THE ADDITIONAL EVIDENCE WHICH WERE FILED BEFORE THE CIT (A) AND ADJUDICATE THE VARIOUS ADDITIONS IN ACCORDANCE WITH LAW. AS AGAINST THIS, THE LD. D.R. SUPPORTED THE ORDER OF LD. CIT(A). ALTERNATIVELY, HE PLEADED THA T SINCE THESE EVIDENCES WERE NOT FILED BEFORE THE AO, THEREFORE, CONTROVERSY INVOLVE D IN GROUND NOS.2 TO 9 BE REMANDED TO THE FILE OF AO FOR ADJUDICATING THESE A DDITIONS AFRESH IN ACCORDANCE WITH LAW. 4. HAVING HEARD BOTH SIDES, IN RESPECT OF GROUND NO .1, WE HAVE CAREFULLY GONE THROUGH THE ORDER OF AUTHORITIES BELOW. IT IS TRUE THAT AO ALLOWED ENOUGH OPPORTUNITY TO ASSESSEE. HOWEVER, FROM THE PERUSAL OF VARIOUS DOCUMENTS WHICH WERE FILED FOR THE FIRST TIME BEFORE LD. CIT(A), WE ARE CONVINCING THAT THESE ARE SUPPORTING EVIDENCES. KEEPING IN VIEW THE NATURE O F EVIDENCES, WE ARE OF THE VIEW THAT IT WILL MET THE END OF JUSTICE IF THE CON TROVERSY INVOLVED IN GROUND NOS.2 TO 9 IS REMANDED TO THE FILE OF AO. WE ORDER ACCOR DINGLY. WE ALSO DIRECT THE ASSESSEE TO FURNISH ALL THESE DOCUMENTS BEFORE THE AO WHO WILL MAKE NECESSARY INQUIRY/EXAMINE THE DOCUMENTS AND DECIDE THE VARIOU S ADDITIONS CONTAINING IN GROUND NOS. 2 TO 9 AFRESH IN ACCORDANCE WITH LAW AF TER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, FOR THE STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE D ATE MENTIONED HEREINABOVE. SD/- SD/- ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE 04-05-2012. /RAJKOT ITA NO.1275 /RJT/2010 4 . .. . +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT-SHRI RADADIYA PRABINBHAI VALLABHBHAI, RAJKOT... 2. +,* / RESPONDENT- THE INCOME TAX OFFICER, WARD-2(3), R AJKOT. 3. : / CONCERNED CIT-II, RAJKOT. 4. :- / CIT (A)-III, RAJKOT.. 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASSTT. REGISTRAR , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.