The ITO, Ward-9(1), Ahmedabad V. Shri Saji Denial Christian, Ahmedabad

ITA 1404/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94700 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 17-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 27-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALA PHILIPS
• Keywords: Presumptive income
• Section: 44AD

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO. 1404/AHD/2012 / ASSESSMENT YEAR: 2007-08 ITO, WARD 9 (1), AHMEDABAD VS. SHRI SAJI DENIAL CHRISTIAN, PROP. OF M.D. ENTERPRISE, A/23, MANSAROVAR COMPLEX, NR. BORINGWALA, B/H. MANINAGAR RAILWAY STATION, MANINAGAR EAST AHMEDABAD PAN : ACTPC 5127 H / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI LALA PHILIPS, SR DR ASSESSEE BY : SHRI ASEEM THAKKAR, AR !'# / DATE OF HEARING : 17/11/2015 / DATE OF PRONOUNCEMENT: 19/11/2015 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORDE R OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD DATED 30.04.2012 PASSED FOR ASSESSMENT YEAR 2007-08. 2. THE REVENUE HAS TAKEN FOUR GROUNDS OF APPEAL BUT ITS GRIEVANCE REVOLVES AROUND A SINGLE ISSUE, WHEREBY IT HAS CHAL LENGED THE DELETION OF RS.9,56,462/-. THE REVENUE HAS PLEADED THAT THE L EARNED CIT(A) HAS ERRED IN DELETING THIS ADDITION BY ADMITTING ADDITIONAL E VIDENCES IN VIOLATION TO RULE 46A OF THE INCOME-TAX RULES, 1962. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HIS RETURN OF INCOME ON 01.07.2008, DECLARING TOTAL INCOME AT RS. 92,840/-. THE CASE OF THE ITA NO. 1404/AHD/2012 ITO VS. SHRI SAJI DENIAL CHRISTIAN FOR AY: 2007-08 2 ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND N OTICE U/S 143(2) OF THE INCOME-TAX ACT WAS ISSUED AND SERVED UPON THE ASSES SEE. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED THAT DURING THE PERIOD FR OM 01.04.2006 TO 31.03.2007 DEPOSITS AMOUNTING TO RS.21,89,380/- HAVE BEEN MADE IN THE BANK ACCOUNT WITH AXIS BANK. THE ASSESSEE IS A LABOUR CONTRACTO R. HE HAS SHOWN CONTRACT RECEIPTS OF RS.11,60,448/-. THE ASSESSEE HAS OFFERED INCOME ON THESE RECEIPTS @ 8% U/S 44AD OF THE ACT. ACCORDING TO THE ASSESSING OFFICER, THE BALANCE AMOUNT CREDITED IN THE BANK ACCOUNT HAS NOT BEEN EXPLAINED BY THE ASSESSEE. IT REPRESENTS THE COMMISSION INCOME FOR SUPPLYING LABOURERS. THE LEARNED ASSESSING OFFICER IN THIS WAY MADE ADDITION OF RS.10,28,932/-. 4. ON APPEAL, THE LEARNED FIRST APPELLATE AUTHORITY HAS DELETED THIS ADDITION BY OBSERVING AS UNDER:- 6.10 I HAVE PERUSED THE DETAILS AND EXPLANATION FILED BY THE AO DURING THE COURSE OF APPELLANTS PROCEEDINGS. I HAVE PERUSED T HE CONFIRMATION OF THE AO AS MENTIONED IN ASSTT. ORDER AND ALSO IN REMAND REP ORT. APPELLANT CONTENTION WERE ALSO PERUSED. AFTER CAREFUL CONSIDE RATION OF ALL THE FACTS AND SUBMISSION, 1 AM INCLINED TO ACCEPT THE CONTENTION OF THE APPELLANT PARTLY. IT IS TRUE THAT APPELLANT HAS NOT MAINTAINED BOOKS OF ACCOUNT BEING A SMALL LABOUR SUBCONTRACTOR AND TAKEN THE RECOURSE OF PRES UMPTIVE TAXATION U/S. 44AD OF THE IT ACT AND THEREFORE, IN RESPECT OF ANY U NDISCLOSED RECEIPTS, THE UNDISCLOSED INCOME HAS TO BE COMPUTED AT THE RATE O F 8%. IT IS A WELL SETTLED LAW THAT ALL RECEIPTS ARE NOT INCOME. NOW FURTHER, THE EXPLANATION OFFERED BY APPELLANT IN RESPECT OF VARIOUS ENTRIES IN HIS BOOK S OF ACCOUNTS ARE FOUND TO BE SATISFACTORILY EXPLAINED INCLUDING THE ENTRIES RELA TED TO LOAN OR CASH DEPOSITS OUT OF WITHDRAWAL. AS SUBMITTED BY APPELLANT IN REJO INDER THE TOTAL RECEIPT FOR THE PERIOD OF PREVIOUS YEAR COMES TO RS.20,25,782 ( RS.11,60,488 + RS.7,50,834 + RS.1,49,036) EXCLUDING ENTRIES OF LOAN AND CASH DEPOSIT FROM WITHDRAWALS. 6.11. THE APPELLANT HAD ALREADY OFFERED INCOME AT THE RATE OF 8% ON THE TOTAL RECEIPT OF RS. 11,60,488. IT IS THEREFORE INCOME AT THE RATE OF 8% I.E. RS.72,470/- [BEING 8% OF RS. 9,05,870 (7,56,834 + 1 ,49,036)] IS TO BE CONSIDERED AS NOT DISCLOSED BY THE APPELLANT. THE A DDITION TO THIS EXTENT IS THEREFORE UPHELD ON THIS ISSUE AND AO IS DIRECTED TO DELETE THE BALANCE AMOUNT. 6.12. IN RESPECT OF LOAN AMOUNT AND CASH DEPOSIT IN THE HANK OUT OF EARLIER WITHDRAW THE CONTENTION THE APPELLANT AND EVIDENCES SO SUBMITTED ARE FOUND ITA NO. 1404/AHD/2012 ITO VS. SHRI SAJI DENIAL CHRISTIAN FOR AY: 2007-08 3 SATISFACTORY THEREFORE THE AMOUNT CAN NOT HE TREATE D AS RECEIPT AND THERE IS NO QUESTION OF THE ADDITION ON SUCH AMOUNT AS RECEIPT FROM UNDISCLOSED SOURCE. IT IS THEREFORE APPELLANT GETS RELIEF OF RS.9,56,46 2 (RS.10,28,932-RS.72,470). 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED U PON THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT THE ASSESSEE H AS FILED EVIDENCE BEFORE THE CIT(A) WHICH HAS BEEN ADMITTED IN VIOLATION TO RULE 46A OF THE INCOME- TAX RULES, 1962. ON THE OTHER HAND, LEARNED COUNSE L FOR THE ASSESSEE RELIED UPON THE ORDER OF THE CIT(A). 6. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THE ASSESSEE HAS GIVEN COMPLETE BREAK-UP OF THE AMOUNTS CREDITED IN THE BANK ACCOUNT WITH AXIS BANK. THE C ASE OF THE ASSESSEE IS THAT THE SUM OF RS.11,60,448/- REPRESENTS THE GROSS RECE IPTS ON WHICH HE HAS DECLARED PRESUMPTIVE INCOME OF RS.92,839/- @ 8% U/S 44AD. THE REST OF THE AMOUNTS WERE TAKEN AS LOANS FROM VARIOUS PERSON S AND THE ASSESSEE HAS FILED THEIR CONFIRMATIONS, COPIES OF PAN, ETC. THE LEARNED FIRST APPELLATE AUTHORITY HAS NOTED ALL THESE DETAILS IN TABULAR FO RM FROM PAGE NOS.10 TO 14 OF THE IMPUGNED ORDER. THE COMMENTS OF THE ASSESSIN G OFFICER HAVE ALSO BEEN CALLED FOR. THEREFORE, THERE IS NO VIOLATION OF RULE 46A AT THE END OF THE FIRST APPELLATE AUTHORITY. THE ASSESSEE HAS SUCCES SFULLY DEMONSTRATED THAT PART OF THE AMOUNTS DEPOSITED IN THE BANK ACCOUNT W AS SOURCED FROM SUNDRY LOANS. THEREFORE, WE DO NOT SEE ANY REASON T O INTERFERE IN THE ORDER OF THE LD. CIT(A) AND THE APPEAL OF THE REVENUE IS DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON 19 TH NOVEMBER, 2015 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 19/11/2015 BIJU T., PS ITA NO. 1404/AHD/2012 ITO VS. SHRI SAJI DENIAL CHRISTIAN FOR AY: 2007-08 4 !&''()(*' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' # / CONCERNED CIT 4. ' # ( ) / THE CIT(A) 5. &'( ! , ! , / DR, ITAT, AHMEDABAD 6. (- ./ / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD