M/s. Deep Care Health Pvt.Ltd., Ahmedabad V. The Dy.CIT.,(OSD),Range-1, Ahmedabad

ITA 1418/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80263 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 03-07-2014
• Assessment Year: 1990-1991
• Appeal Filed On: 19-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: S N DIVETIA
• Keywords: Principle of natural justice

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .# ## #. . . . % % % %, , , , &' ( & ' &' ( & ' &' ( & ' &' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND N.S. SAINI, ACCOUNTANT MEMBER) ITA NO.1418 AND 1419 /AHD/2011 [ASSTT.YEAR : 1990-91 AND 1991-92] M/S.DEEP CARE HEALTH P. LTD. 804, GIDC ESTATE, DHOLKA AHMEDABAD. PAN: AAACD 9951 A. /VS. THE DCIT(OSD), RANGE-1 AHMEDABAD. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ./ 0 1 &/ ASSESSEE BY : SHRI S.N. DIVETIA ( 0 1 &/ REVENUE BY : SHRI BL YADAV, SR.DR 3 0 /4'/ DATE OF HEARING : 3 RD JULY, 2014 567 0 /4'/ DATE OF PRONOUNCEMENT : 8/8/2014 &8 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE APPEALS BY THE ASSESSEE FOR THE ASSESSMENT YEAR 1990-91 AND 1991-92 ARE DIR ECTED AGAINST THE ORDER OF THE CIT(A). THESE ARE BEING ADJUDICATED WITH TH IS CONSOLIDATED ORDER. ITA NO.1418/AHD/2011 (ASSTT.YEAR 1990-91) 2. THE ONLY EFFECTIVE GROUND OF THE APPEAL OF THE A SSESSEE IS AS UNDER: 1.1 THE ORDER PASSED U/S.250 ON 14.01.2011 FOR A.Y .1990-91 BY CIT(A) CONFIRMING THE ADDITIONS OF RS.8,83,212/- MA DE BY DCIT, IS ITA NO.1418 AND 1419/AHD/2011 -2- WHOLLY AND ILLEGAL, UNLAWFUL AND AGAINST THE PRINCI PLES OF NATURAL JUSTICE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THIS IS A VERY OLD CASE PERTAINING TO ASSTT.YEAR 1990-91, AND ADDITION WAS MADE ON ACCOUNT OF UNEXPLAINED DEPOSITS. HE SUBMITTED THAT THE ASS ESSEE HAS FILED ALL THE NECESSARY EVIDENCES BEFORE THE AO AS WELL AS BEFORE THE CIT(A). HE SUBMITTED THAT THE ASSESSEE HAS PROVED THE IDENTITY , CREDIT-WORTHINESS OF THE PARTIES AND GENUINENESS OF THE TRANSACTION BY F ILING THE CONFIRMATION LETTERS AND ALSO STATEMENT OF ACCOUNTS OF THE PARTI ES. MOST OF THE AMOUNTS WERE THROUGH ACCOUNT PAYEE CHEQUES ONLY AND TDS HAS BEEN MADE WHEREVER APPLICABLE. THE PARTIES OF WHOM THE MAJOR AMOUNT WAS APPEARED IN THE BALANCE SHEET OF THE ASSESSEE WERE EXISTING INCOME-TAX ASSESSEE, AND THEIR COPY OF ACKNOWLEDGEMENT OF RETU RN WAS ALSO FILED BEFORE THE REVENUE AUTHORITIES. HE SUBMITTED THAT THE CIT(A) IS PATENTLY WRONG IN HOLDING THAT THE DETAILS FILED BY THE ASSE SSEE PERTAINS TO SOME WRONG ASSESSMENT YEARS. HE SUBMITTED THAT THE DETA ILS WERE CORRECTLY FILED AND CONFIRMATION LETTER WAS ALSO FILED AND THE ONLY MISTAKE WAS THAT THE COPIES OF THE ACKNOWLEDGEMENT OF RETURN OF THE PART IES OF THE CURRENT ASSESSMENT YEARS WERE FILED AND NOT FOR THE ASSTT.Y EAR 1990-91, WHICH IS RELEVANT ASSESSMENT YEAR IN APPEAL BEFORE THE TRIBU NAL. HE SUBMITTED THAT SINCE THE ASSESSEE HAS FILED EVEN THE COPY OF THE A CKNOWLEDGEMENT OF FILING OF THE RETURN FOR THE CURRENT ASSESSMENT YEA R, IN CASE OF SOME DOUBT, THE AO SHOULD HAVE ISSUED SUMMONS TO THE DEPOSITOR PARTIES, WHICH HE FAILED TO DO SO. HE RELIED ON THE SERIES OF DECISI ONS, VIZ. DCIT VS. ROHINI BUILDERS, 256 ITR 360 (GUJ), CIT VS. PRAGATI CO-OP. BANK LTD., 278 ITR 170 (GUJ) AND RAJESH BABUBHAI DAMANIA V. INCOME-TAX OFFICER, 251 ITR 541 (GUJ) IN SUPPORT OF THE CASE OF THE ASSESSEE. ITA NO.1418 AND 1419/AHD/2011 -3- 4. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF TH E LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE ONUS WAS O N THE ASSESSEE TO PROVE THE CREDIT-WORTHINESS OF THE PARTIES, WHICH THE ASS ESSEE HAS FAILED TO DISCHARGE, AS THE CIT(A) HAS OBSERVED THAT THE ASSE SSEE HAS FILED MOST OF THE DETAILS FOR THE A.Y.1999-2000 OR SUBSEQUENT YEA RS AND NOT FOR THE ASSTT.YEAR 1990-91. HE RELIED ON THE ORDER OF THE AO. 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE FINDINGS OF TH E CIT(A) THAT THE ASSESSEE HAS FILED DETAILS FOR WRONG ASSESSMENT YEA R, IS NOT CORRECT. THE ASSESSEE HAS FILED CORRECT DETAILS ALONG WITH CONFI RMATION LETTER FOR THE RELEVANT DEPOSIT ENTRIES FOR THE CORRECT ASSTT.YEAR 1990-91 AND THE ONLY MISTAKE SEEMS TO BE THAT THE COPY OF THE ACKNOWLEDG EMENT OF RETURN OF THE DEPOSITOR PARTIES WAS FOR THE CURRENT ASSESSMENT YE ARS AND NOT FOR THE RELEVANT ASSTT.YEAR 1990-91. THIS FACT ALONE COULD NOT BE MADE BASIS FOR MAKING THE ADDITION OF THE DEPOSIT AMOUNTS IN THE C ASE OF THE ASSESSEE. THE ASSESSEE HAS ESTABLISHED THE IDENTITY AND CREDIT-WO RTHINESS OF THE DEPOSITORS AND ALSO GENUINENESS OF THE TRANSACTION BY FILING NECESSARY DETAILS AND CONFIRMATION LETTER AND COPY OF THE ACK NOWLEDGEMENT OF RETURN FOR SUBSEQUENT ASSESSMENT YEARS. MOST OF THE DEPOS IT AMOUNTS WERE THROUGH BANKING CHANNEL AND TDS HAS BEEN MADE WHERE VER APPLICABLE. WE FIND THAT THE AO HAS NOT SUMMONED ANY OF THE DEP OSITOR PARTIES TO MAKE FURTHER INQUIRIES IN THIS CASE. IN SOME OF TH E CASES, THE ASSESSEE HAS FILED THE STATEMENT OF THE ACCOUNT OF THE DEPOSITOR PARTIES, AND THEIR COPY OF BANK STATEMENT ETC. AND MOST OF THE MAJOR DEPOSITO RS WERE EXISTING INCOME TAX ASSESSEE. IN THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS DISCHARGED ITS ONUS BY PROVING THE IDE NTITY AND CREDIT- WORTHINESS OF THE DEPOSITORS AND GENUINENESS OF THE TRANSACTION AND THAT THERE IS NO MATERIAL BROUGHT ON RECORD ON BEHALF OF THE REVENUE TO HOLD THE ITA NO.1418 AND 1419/AHD/2011 -4- SAME OTHERWISE. IN THIS VIEW OF THE MATTER, WE HOL D THAT NO CASE OF ADDITION COULD BE MADE OUT BY THE DEPARTMENT, AND A CCORDINGLY, THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE, AND THE GROUN D OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ITA NO.1419/AHD/2011 (ASSTT.YEAR 1991-92) 7. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: 1.1 THE ORDER PASSED U/S.250 ON 5.4.2011 FOR A.Y.1 991-92 BY CIT(A) CONFIRMING THE DISALLOWANCE OF INTEREST MADE BY DCIT, RAGNE-1 IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT CONSIDERING FULLY AND PROPERLY THE EXPLANATIONS FURNISHED AND THE EVIDENCE PRODUCTS BY THE APPELLANT WITH REGARD TO THE IMPUGNED ADDITIONS. 1.3 THE LD.CIT(A) HAS GRIEVOUSLY ERRED IN UPHOLDING THE IMPUGNED DISALLOWANCE OF INTEREST OF RS.1,58,978/- WITHOUT G IVING SUFFICIENT OPPORTUNITY TO THE APPELLANT BEFORE REJECTING THE E VIDENCE RELATING TO YEAR OTHER THAN UNDER APPEAL. 8. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ONLY ISSUE IS REGARDING THE DISALLOWANCE OF INTEREST OF RS.1,58,9 78/- WITH REGARD TO THE DEPOSIT AMOUNT ADDED BY THE AO AS INCOME IN THE IMM EDIATELY PRECEDING ASSTT.YEAR 1990-91. HE SUBMITTED THAT THE TDS ON I NTEREST AMOUNT HAS BEEN MADE WHEREVER APPLICABLE. THE LEARNED DR COU LD NOT CONTROVERT THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 9. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). IN VIEW OF OUR FINDINGS RECORDE D IN THE FOREGOING PARAS OF THIS ORDER, WHILE DISPOSING OF THE ASSESSE ES APPEAL FOR A.Y.1990- ITA NO.1418 AND 1419/AHD/2011 -5- 91, DELETING THE ADDITION MADE ON ACCOUNT OF UNEXPL AINED DEPOSITS, WE HOLD THAT INTEREST ON THESE DEPOSITS FOR THE RELEVA NT ASST.YEAR 1991-92 COULD NOT BE DISALLOWED, AND ACCORDINGLY, THE INTER EST AMOUNTING TO RS.1,58,978/- HAS TO BE ALLOWED, AS ALLOWABLE EXPEN SES AND THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE ALLOWED. 10. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( # ## #. .. .# ## #. . . . % % % % /N.S.SAINI) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD