Shri Lalitbhai Ramoliya L/R of Hansrajbhai Ramoliya, Surat V. The Income Tax Officer, Ward 9 (2), Surat

ITA 1423/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9695 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 14-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI
• Keywords: Unexplained cash credit; Business income; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI S.K. YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 1423/AHD/2013 (ASSESSMENT YEAR: 2008-09) LALITBHAI RAMOLIYA L/R OF HANSRAJBHAI RAMOLIYA 8- NILKANTH ROW HOUSE, SARTHANA JAKAT NAKA VARACHHA ROAD, SURAT V/S INCOME TAX OFFICER, WARD- 9 (2), SURAT (APPELLANT) (RESPONDENT) PAN: AAUPR 7969M APPELLANT BY : SHRI MEHUL SHAH, AR RESPONDENT BY : SHRI G.C. DAXINI, SR. D.R. ( )/ ORDER DATE OF HEARING : 19 -01-201 6 DATE OF PRONOUNCEMENT : 22 -01-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF LD. CIT(A)-V, SURAT DATED 11.03.2013 PERTAINING TO A.Y. 2008-09. ITA NO. 1423 /AHD/2013 . A.Y. 2008-09 2 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE A.O IN MAKING THE ADDI TION OF RS. 13,27,778/- AS UNEXPLAINED CREDIT IN THE BANK ACCOU NT. 3. ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF F OOD GRAINS, OIL, EMBROIDERY THREAD IN THE NAME AND STYLE OF M/S. KRU SHNA BROTHERS. RETURN FOR THE YEAR WAS ELECTRONICALLY FILED ON 09. 03.2009 DECLARING TOTAL BUSINESS INCOME OF RS. 76,154/- AND AGRICULTU RE INCOME OF RS. 92,580/-. THE RETURN WAS SELECTED FOR SCRUTINY ASSE SSMENT DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS. THE ASSESSEE WAS CONFRONTED WITH THE INFORMATION RECEIVED IN RESPECT OF CASH DEPOSIT RS. 12,33,000/- IN THE SAVINGS BANK ACCOUNT NO. 10310 WITH THE VARACHHA CO-OP. BANK LTD. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DEPOSIT IN THE SAID BANK ACCOUNT. 4. IN ITS REPLY, THE ASSESSEE STATED THAT HE WAS HAVIN G TRAVEL INCOME WHICH WAS NOT SHOWN IN THE RETURN OF INCOME. THE PR OFIT AND LOSS ACCOUNT OF THE SAME WAS SHOWN WHEREIN THE RENT INCO ME OF RS. 8,20,943/- WAS SHOWN AND THE PROFIT WAS RS. NIL. 5. IT WAS FURTHER EXPLAINED THAT THE ASSESSEE WAS ALSO DOING BUS OPERATION BUSINESS FROM WHERE RENTAL INCOME WAS EAR NED WHICH WAS ALSO NOT SHOWN IN THE RETURN OF INCOME. IT WAS STRO NGLY CONTENDED THAT THE CASH DEPOSIT IN THE BANK ACCOUNT WERE FROM BUS RENT INCOME. THE ASSESSEE WAS ASKED TO JUSTIFY/SUBSTANTIATE HIS CLAI M. ON RECEIVING NO PLAUSIBLE REPLY, THE A.O TREATED THE DEPOSIT OF RS. 12,33,000/- DEPOSITED IN CASH AND RS. 94,778/- DEPOSITED BY CHE QUE TOTALING TO RS. 13,27,778/- AS UNEXPLAINED DEPOSIT AND MADE THE IMP UGNED ADDITION. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) AND O NCE AGAIN TOOK THE ITA NO. 1423 /AHD/2013 . A.Y. 2008-09 3 SAME PLEA AS TAKEN BEFORE THE A.O. THE ASSESSEE ALS O FILED CERTAIN DOCUMENTARY EVIDENCES IN SUPPORT OF HIS CLAIM. HOWE VER, THE LD. CIT(A) DISMISSED THE CLAIM OF THE ASSESSEE HOLDING THAT SINCE THE ASSESSEE HAS NOT SHOWN ANY INCOME FROM TRANSPORT RE NTAL BUSINESS NOR THE INCOME WAS SHOWN FROM ANY REVISED RETURN OF INC OME. THEREFORE THE ASSESSEE IS NOT ENTITLED TO TAKE ANY NEW PLEA I N THE LIGHT OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F GOETZE (INDIA) LTD. 284 ITR 323. THE ADDITIONS WERE CONFIRMED. 6. AGGRIEVED BY WHICH THE ASSESSEE IS BEFORE US. COUNS EL FOR THE ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. 7. PER CONTRA THE D.R. RELIED UPON THE FINDINGS OF LD. CIT(A). 8. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ER OF THE AUTHORITIES BELOW. WE FIND THAT THE FINDINGS OF THE FIRST APPELLATE AUTHORITY ARE HEAVILY DEPENDED ON THE DECISION OF T HE HONBLE SUPREME COURT IN THE CASE OF GOETZE (SUPRA). HOWEVE R, IN OUR UNDERSTANDING OF THE LAW, THE SAID DECISION OF THE HONBLE SUPREME COURT DOES NOT PUT ANY CAP ON THE POWERS OF THE APP ELLATE AUTHORITIES TO ACCEPT ADDITIONAL PLEA. SINCE THE LD. CIT(A) REF USED TO VERIFY/EXAMINE THE ADDITIONAL SOURCE OF INCOME OF T HE ASSESSEE I.E. THE BUS RENTAL INCOME, IN THE INTEREST OF JUSTICE AND F AIR PLAY. WE RESTORE THIS ISSUE TO THE FILES OF THE A.O. THE ASSESSEE IS DIRECTED TO FURNISH NECESSARY DOCUMENTARY EVIDENCES TO SUBSTANTIATE ITS CLAIM OF BUS RENTAL INCOME. THE A.O IS DIRECTED TO DECIDE THE IS SUE AFRESH. AFTER GIVING A REASONABLE AND FAIR OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. ITA NO. 1423 /AHD/2013 . A.Y. 2008-09 4 9. APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 22 - 01 - 2016. SD/- SD/- (S. K. YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD