Aabhar Holdings Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-1(1), Ahmedabad

ITA 129/AHD/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9230 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 18-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L SHARMA
• Keywords: Reopening of assessment; Corroborative evidences; Revised return
• Section: 143(3); 147

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NO. 129/AHD/2016 / ASSESSMENT YEAR: 2010-11 AABHAR HOLDING PVT. LTD., 4 TH FLOOR, NAVDEEP HOUSE, ASHRAM ROAD, AHMEDABAD PAN: AAACA 9709 M VS INCOME TAX OFFICER, WARD 1(1)(1), AHMEDABAD !' / (APPELLANT) #$ !' / (RESPONDENT) ASSESSEE(S) BY : SHRI SUNIL TALATI, AR REVENUE BY : SHRI B L SHARMA, SR DR / DATE OF HEARING : 08/03/2016 / DATE OF PRONOUNCEMENT: 15/03/2016 / O R D E R PER KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1, AHMEDABAD, DATED 15.10.2015 FOR ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONF IRMING THE REOPENING THE ASSESSMENT U/S 147 OF THE INCOME TAX ACT. IT I S SUBMITTED THAT THE LEARNED CIT(A) HAS NOT APPRECIATED THE FACTS OF THE CASE & OBJECTIONS RAISED BY YOUR APPELLANT ON THE BASIS & REASONS REC ORDED FOR REOPENING. IT IS SUBMITTED THAT THE PROVISIONS OF SEC. 147 R.W.S. 148 ARE AT ALL APPLICABLE AND THEREFORE THE REOPENING IS BAD IN LAW AND THE S AME BE HELD ACCORDINGLY. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONF IRMING THE ADDITION OF RS.90,40,259/- BY TREATING THE UNACCOUNTED CASH DEPOSITED WITH M/S. ORANGE COMMODITY SERVICES PVT LTD. IT IS SUBMITTED THAT, YOUR APPELLANT HAS ALREADY SHOWN SUCH INCOME IN THE AUDIT ED BOOKS OF ITA NO. 129/AHD/2016 AABHAR HOLDING PVT LTD VS. ITO FOR AY 2010-11 2 ACCOUNTS / RETURN OF INCOME FILED PRIOR TO ISSUANCE OF NOTICE U/S 148 OF THE ACT & THEREFORE, THE LEARNED CIT(A) HAS ERRED CON FIRMING IN MAKING AGAIN (TWICE) ADDITION TO THE RETURNED INCOME. IT I S THEREFORE SUBMITTED THAT, THE ACTION OF THE LEARNED CIT(A) IS TOTALLY I NCORRECT, ILLEGAL BOTH ON FACTS AND ON LAW & THE SAME BE DELETED. 3. THE ORDER PASSED BY THE LD. CIT(A) HAS HAD IN LAW AN D CONTRARY TO THE PROVISIONS OF LAW AND FACTS. IT IS SUBMIT THAT THE SAME BE HELD SO NOW. 4. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER AND/OR TO AMEND ALL OR ANY OF THE GROUNDS BEFORE THE FINAL HEARING. 3. BRIEFLY STATED FACTS ARE THAT, FOR THE YEAR UNDE R CONSIDERATION, THE ASSESSMENT WAS REOPENED U/S 143(3) R.W.S. 147 OF TH E INCOME-TAX ACT (HEREINAFTER REFERRED TO AS 'THE ACT') VIDE ORDER D ATED 24.06.2014. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER MADE ADDITION OF RS.9,40,259/-. THE ASSESSEE, BEING AGGRIEVED BY THI S ORDER OF THE ASSESSING OFFICER, PREFERRED AN APPEAL BEFORE THE LEARNED CIT (A), WHO, AFTER CONSIDERING THE SUBMISSIONS, CONFIRMED THE ADDITION IN QUESTION. THE ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 4. SINCE THE GROUND NOS. 1 AND 2 ARE CONNECTED, THE Y ARE DECIDED TOGETHER. FIRST GROUND IS AGAINST THE VALIDITY OF THE REOPENING OF THE ASSESSMENT. THE LEARNED COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REOPENING TH E ASSESSMENT AS THE ASSESSEE HIMSELF HAS OFFERED RS.9,40,259/- AS INCOM E FROM OTHER SOURCES IN THE REVISED RETURN OF INCOME. HE SUBMITTED THAT T HE INITIATION OF REOPENING OF ASSESSMENT WAS NOT VALID. THE LEARNED COUNSEL F OR THE ASSESSEE ALSO SUBMITTED THAT THIS GROUND HAS NOT EVEN DECIDED BY THE LEARNED CIT(A) AND HE FURTHER CONTENTED THAT THE LEARNED CIT(A) HAS FA ILED TO TAKE NOTE OF THE FACT THAT BY CONFIRMING THE ADDITION, THE LEARNED C IT(A) HAS FAILED TO APPRECIATE THE FACT THAT BY DOING SO IT HAS RESULTE D INTO DOUBLE TAXATION. ITA NO. 129/AHD/2016 AABHAR HOLDING PVT LTD VS. ITO FOR AY 2010-11 3 WITH REGARD TO GROUND NO.2, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE ORIGINAL RETURN THE ASSESSEE HAD SHOWN RS.5,60,998/- AS NET LOSS AGAINST WHICH THE ASSESSEE HAD REDUCED THE INCOME C ONSIDERED UNDER OTHER HEADS OF INCOME FROM RS.11,92,168/- TO RS.2,87,399. IN OTHER WAY, IN THE REVISED COMPUTATION, THE ASSESSEE HAS OFFERED RS.9, 04,769/- AS INCOME FROM OTHER SOURCES. THEREFORE, HE SUBMITTED THAT UNDER T HESE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) IS NOT JUSTIFIED. ON THE CONTRARY, LEARNED SR. DR VEHEMENTLY OPPOSED THE SUBMISSIONS MADE BY THE LEAR NED COUNSEL FOR THE ASSESSEE AND SUPPORTED THE ORDERS OF THE LOWER AUTH ORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE LEARNED CIT(A) HAS DECIDED THE ISSUE BY OBSERVING AS UNDER:- IT IS SEEN FROM THE FACTS OF THE CASE THAT THE INC OME OF RS.9,04,769/- HAS ALREADY BEEN OFFERED IN THE HEAD OF BUSINESS INCOM E IN ORIGINAL RETURN OF INCOME. NOW, THE SAME HAS BEEN SHOWN UNDER THE HEA D INCOME FROM OTHER SOURCES IN THE REVISED RETURN OF INCOME FILED, IN A DDITION TO SUCH INCOME, NOT PAID ANY CASH EXPENDITURE OUTSIDE THE BOOKS TO THE SAID PARTY. AN AMOUNT OF RS.1,15,000/- AS INCOME FROM OTHER SOURCES HAS BEEN OFFERED AS INCOME FROM OTHER SOURCES. IN VIEW OF THIS, IT IS CLEAR THAT THE ASSESSEE HAS NOT OFFERED ADDITIONAL INCOME OF RS.9,40,259/- FOR TAXATION AND SIMPLY CHANGED THE HEAD OF INCOME. HOWEVER, AS PER THE MATERIAL AVAILABLE ON RECORD, THE ASSESSEE HAS PAID CASH AMOUNTING TO RS.9,40,259/- TO ORANGE COMM ODITY SERVICES PVT. LTD. AND RECEIVED BACK THE CHEQUE OF THE SAID AMOUN T. THE ASSESSEE HAS FAILED TO ESTABLISH THE SAID TRANSACTION HAS BEEN SHOWN IN BOOKS OF ACCOUNTS, WITH SUPPORTING EVIDENCES. THEREFORE, THE BOTH TRANSACTI ONS ARE SEPARATE AND THE ASSESSEE HAS FAILED TO OFFER THE AMOUNT OF RS.9,40, 259/- FOR TAXATION IN REVISED RETURN OF INCOME. IN VIEW OF THE SAME, THE ADDITIO N MADE BY THE A.O. IS CONFIRMED. WE ARE OF THE CONSIDERED OPINION THAT THE LEARNED C IT(A) WAS NOT JUSTIFIED IN GIVING THE ABOVE FINDING AS THE ASSESS EE HAS DEMONSTRATED THAT ITA NO. 129/AHD/2016 AABHAR HOLDING PVT LTD VS. ITO FOR AY 2010-11 4 RS.9,40,259/- IS OFFERED IN THE REVISED RETURN UNDE R THE HEAD INCOME FROM OTHER SOURCES. THEREFORE, WE HEREBY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DIRECT THE ASSESSING OFFICER TO DELETE TH E ADDITION IN QUESTION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 15 TH MARCH 2016 AT AHMEDABAD. SD/- SD/- N.K. BILLAIYA (ACCOUNTANT MEMBER) (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 15/03/2016 BIJU T., PS '#()*+* ( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) - VI, AHMEDABAD 5. $%&'' , , / DR, ITAT, AHMEDABAD 6. &,-. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD