Shri Devshibhai Popatbhai Moliya, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-1(3), RAJKOT-GUJARAT

ITA 130/RJT/2012

• Counselvise Citation: 13024914 RSA 2012
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-07-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 11-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: KALPESH DOSHI
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68; 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAV A, AM ITA NO.130/RJT/2012. / ASSESSMENT YEAR 2004-05 SHRI DEVSHIBHAI POPATBHAI MOLIYA, C/O KALPESH S DOSHI & CO. CHARTERED ACCOUNTANT, 411, COSMO COMPLEX, MAHILA COLLEGE CIRCLE, RAJKOT-360001 PAN: AFMPM6922L, ( * / APPELLANT) VS. THE INCOME TAX OFFICER, WARD 1(3), RAJKOT +,* / RESPONDENT -. / ASSESSEE BY SHRI KALPESH DOSHI . / REVENUE BY SHRI. AVINASHKUMAR . / DATE OF HEARING 12-07-2012 . / DATE OF PRONOUNCEMENT 13 -07-2012 / / / / ORDER . .. . . . . . , , , , / T. K. SHARMA, J. M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 2.3.2012 OF CIT(A), RAJKOT FOR THE ASSESSMENT YEAR 2004-05. 2. VARIOUS GROUNDS RAISED IN THIS APPEAL ARE AS UNDER : 1. THAT, THE LD. CIT(A) HAS WRONGLY CONFIRMED THE ADD ITION OF RS.97,296/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT, 1961; 2. THAT, THE LD. CIT(A) HAS CONFIRMED ADDITION WITHO UT ;APPRECIATING THE NATURE OF EVIDENCES PRODUCED AND WI THOUT APPLYING THE PROVISIONS OF SECTION 250(4) OF THE IT A CT. ITA NO.130/RJT/2012. 2 3. BRIEFLY STATED THE FACTS ARE THAT FOR THE ASSESSMENT Y EAR UNDER APPEAL, THE AO FRAMED THE ASSESSMENT U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON 21.12.2006 WHEREIN HE M ADE AN ADDITION OF RS.97,296/- U/S 68 OF THE ACT IN RESPECT OF FOLLOWING TWO CASH CREDITORS: I) SHRI RASHIK BHAI P.LUNAGARIYA RS.48,750 AND II) SHRI SANJAYBHAI AJUDIYA RS.48,546/- THE REASONS GIVEN BY THE AO FOR MAKING THE AFORESAID ADDITIONS IS THAT THE ASSESSEE FAILED TO PRODUCE BOTH THE CREDITORS. ON A PPEAL BEFORE; THE LD. CIT(A) THE ASSESSEE PRODUCED ADDITIONAL EVIDENCE I .E. DETAILS OF AGRICULTURAL LAND HOLDING, 7/12 AND 8A EXTRACT OF SHR I RASHIKBHAI P.LUNAGARIYA AND HIS AFFIDAVIT. THESE WERE NOT CONSI DERED BY THE LD. CIT(A). AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING BEFORE US ON BEHALF OF THE ASSESSEE SHRI KALPESH DOSHI APPEARED AND DREW OUR ATTENTION TO THE PROVISIONS CONTAINED IN SECTION 250(4) OF THE ACT WHICH PROVIDES THE FIRST APPELLATE CAN BE MADE FURTHER INQUIRY AS HE THINKS FIT, OR MAY DI RECT THE ASSESSING OFFICER TO MAKE FURTHER INQUIRY AND REPORT THE RESULT OF THE SAME TO HIM. IN THIS CASE NEITHER THE LD. CIT(A) MADE THE INQUIRY NO R HE ASKED THE AO TO CONDUCT THE INQUIRY. HE SUBMITTED THAT THIS CASE OF A SMALL ASSESSEE, THEREFORE, IN THE INTERESTS OF JUSTICE, THE IMPUGNED ORDER OF THE LD.CIT(A) BE SET ASIDE AND THE MATTER BE REMANDED TO THE FILE O F THE AO WITH A DIRECTION TO THE AO THAT HE MAY CONDUCT FURTHER INQ UIRY IN RESPECT OF ADDITIONAL EVIDENCES WHICH WERE SUBMITTED BEFORE THE L D. CIT(A). ITA NO.130/RJT/2012. 3 5. SHRI. AVINASHKUMAR, LD. DR APPEARED ON BEHALF OF THE REVENUE AND VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(A) . 6. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GON E THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT IN THE ASSESSMENT ORDER THE AO TREATED THE CASH CREDITS AMOUNTI NG TO RS.97,296/- IN RESPECT OF TWO CREDITORS AS UNEXPLAINED CA SH U/S 68 OF THE ACT. BEFORE THE LD. CIT(A) THE ASSESSEE HAS SUBMITTED FUR THER DETAILS. IT APPEARS THAT THE LD. CIT(A) HAS NEITHER CONDUCTED ANY FURTHER INQUIRY NOR ASKED THE REMAND REPORT FROM THE AO. WE, THEREFORE, IN THE INTERESTS OF JUSTICE, SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) ON THIS ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO THE ASSESSEE THAT H E WILL PRODUCE RELEVANT DETAILS BEFORE THE AO. HE WILL ALSO PRODUCE BOTH THE CREDITORS, IF ASKED BY THE AO. THE AO WILL EXAMINE THE SAME AND RE- ADJUDICATE THE ADDITION OF RS.97,296/- AFRESH IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PROPOSES. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED HEREINABOVE. SD SD ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE 13 -07-2012. /RAJKOT ITA NO.130/RJT/2012. 4 . .. . +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT- SHRI KISHOR BABULAL MANDALIA, 2. +,* / RESPONDENT- THE INCOME TAX OFFICER, WARD 5(1), RAJKO T 3. : / CONCERNED CIT, JAMNAGAR. 4. :- / CIT (A), JAMNAGAR. 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.