M/s Shiv Stock Broker, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2(4), AMRELI

ITA 147/RJT/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6743 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 07-04-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J B JHAVERI
• Assessee Lawyers: DR ADHIA
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NOS.126 AND 147/RJT/2014 ASSESSMENT YEAR : 2008-09 M/S. SHIV STOCK BROCKER, OPP. S.T. DEPOT, AMRELI PAN : ABDFS 6493 H ( / APPELLANT) THE I.T.O., WARD-2(4), AMRELI / RESPONDENT / ASSESSEE BY SHRI D.R. ADHIA, AR / REVENUE BY SHRI J.B. JHAVERI, DR / DATE OF HEARING 07.04.2014 !'# / DATE OF PRONOUNCEMENT 11.04.2014 / ORDER BOTH THESE APPEALS BY THE ASSESSEE WERE HEARD ON TH E SAME DATE, ARGUED BY COMMON REPRESENTATIVE; THEREFORE, THESE ARE BEING D ISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.126/RJT/2014 2. THIS APPEAL IS AGAINST THE ORDER DATED 22.11.201 3 OF LD. CIT(A)-IV, RAJKOT FOR THE ASSESSMENT YEAR 2008-09. THE FIRST GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS AGAINST CONFIRMING THE ADDITION OF RS.72,500/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE INCOME-TAX ACT, 1961. AS PER THE ASSESSMENT ORDER, THE ASSESSING OFFICER MADE THE ADDITION OF RS.36,000/- AS THE ASSESSEE FA ILED TO FURNISH THE CONFIRMATION OF THE FOLLOWING TWO DEPOSITORS:- SR. NO. NAME OF THE CREDITOR AMT OF CASH CREDIT 1 DHANJI BHAVAN TADAVIA RS.18,000 2 VITHAL GOVIND VADODARIA RS.18,000 TOTAL RS.36,000 3. THE ASSESSEE FURNISHED CONFIRMATION IN RESPECT O F OTHER TWO FOLLOWING CREDITORS:- SR. NO. NAME OF THE CREDITOR AMT OF CASH CREDIT 1 BABUBHAI VALLABHBHAI KATHAROTIA RS.18,000 2 DALSUKHBHAI POPATBHAI RS.18,500 TOTAL RS.36,500 4. THE ASSESSING OFFICER OBSERVED THAT AS PER BALAN CE-SHEET OF THE ASSESSEE, THE NAME OF SHRI BABUBHAI V. KATHAROTIA IS DIFFEREN T FROM VOTERS IDENTITY CARD WHICH 2 126 & 147-RJT-2014 - SHIV STOCK BROCKER (SMC) WAS PRODUCED BY THE ASSESSEE IN SUPPORT OF THE PROO F OF IDENTITY OF CREDITOR. IN RESPECT OF OTHER CREDITOR NAMELY SHRI DALSUKHBHAI P OPATBHAI ALSO, THE NAME MENTIONED IN VOTERS IDENTITY CARD WAS DIFFERENT FR OM WHAT APPEARING IN THE BALANCE- SHEET FILED BY THE ASSESSEE. HE ACCORDINGLY MADE TH E ADDITION OF RS.72,500/-. ON APPEAL, IN THE IMPUGNED ORDER, THE LD. CIT(A) CONFI RMED THE ADDITION MADE BY THE ASSESSING OFFICER IN RESPECT OF ALL THE FOUR CREDIT ORS. 5. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E, SHRI D. R. ADHIA, AR, APPEARED AND CONTENDED THAT IN CASE THERE WERE SOME DISCREPANCIES, IT WAS THE DUTY OF THE ASSESSING OFFICER TO ASK THE ASSESSEE TO PRO DUCE ALL THE FOUR CREDITORS. SINCE THIS WAS NOT DONE IN THE PRESENT CASE, ON THIS GROU ND ALONE THE ADDITION OF RS.72,500/- MADE U/S 68 OF THE ACT BE DELETED. WITH OUT PREJUDICE TO THIS, IN RESPECT OF TWO CREDITORS OF WHICH ELECTION ID CARD WERE PRODUC ED, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT AS PER ELECTION ID CARD, TH E NAME OF THE CREDITOR IS SHRI KATHROTIA BALUBHAI. HIS FATHER NAME AS PER ELECTION ID CARD IS VALLABHBHAI. IN BALANCE-SHEET, THERE IS ONLY SPELLING MISTAKE AS IN THE BALANCE-SHEET THE NAME MENTIONED IS SHRI BABUBHAI V. KATHAROTIA. HE FURTH ER EXPLAINED THAT IN THE BALANCE- SHEET, THE V STANDS FOR HIS FATHERS NAME I.E. VA LLABHBHAI AND FOR MINOR SPELLING MISTAKE, THE ADDITION CANNOT BE MADE. IN RESPECT OF OTHER CREDITOR NAMELY SHRI DALSUKHBHAI POPATBHAI, HE POINTED OUT THAT IN THE V OTERS IDENTITY CARD HIS CAST IS MENTIONED AS PATEL AND POPATBHAI IS ALSO KNOWN AS P ATEL AND THE SAME IS BEING USED INTERCHANGEABLY. HE ACCORDINGLY SUBMITTED THAT ATLEAST IN RESPECT OF THESE TWO CREDITORS, THE ADDITION OF RS.36,500/- MADE ON DOUB T AND SUSPICION BE DELETED. 6. ON THE OTHER HAND, SHRI J.B. JHAVERI, DR, APPEAR ED ON BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES B ELOW. HE POINTED OUT THAT IN CASE OF DIFFERENCE IN NAME, THE LD. COUNSEL OF THE ASSES SEE OUGHT TO HAVE FILED AN AFFIDAVIT OF BOTH THE CREDITORS AT LEAST BEFORE THE LD. CIT(A ). SINCE THIS WAS NOT DONE, THE ADDITION MADE BY THE ASSESSING OFFICER IN RESPECT O F ALL THE FOUR CREDITORS BE UPHELD. 7. RIVAL SUBMISSIONS WERE CONSIDERED. IN RESPECT OF TWO CREDITORS NAMELY (I) SHRI DHANJI BHAVAN TADAVIA AND (II) SHRI VITHAL GOVIND V ADODARIA, NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE THE LD. CIT(A) NOR BEF ORE US, THE ASSESSEE FILED 3 126 & 147-RJT-2014 - SHIV STOCK BROCKER (SMC) CONFIRMATION. THEREFORE, WE DECLINE TO INTERFERE IN THIS REGARD. IN RESPECT OF CREDITOR NAMELY SHRI BABUBHAI VALLABHBHAI OF RS.18,000/-, WE FIND THAT THERE IS ONLY SPELLING MISTAKE IN HIS NAME I.E. BALUBHAI INSTEAD OF BABUBH AI. IN VOTERS IDENTITY CARD THE NAME STAND FOR VALLABHBHAI WHICH IS THE NAME OF HIS FATHER AS IS EVIDENT FROM THE ELECTION CARD. THEREFORE, I AM CONVINCED THAT THIS ADDITION OF RS.18,000/- IS MADE ON DOUBT AND SUSPICION; THEREFORE THE SAME IS DELETED. IN RESPECT OF CREDITOR NAMELY SHRI DALSUKHBHAI POPATBHAI, NO EVIDENCE IS FURNISHE D TO SUBSTANTIATE THAT SHRI DALSUKHBHAI POPATBHAI IS THE SAME MAN PATEL DALSHUK HABHAI. THEREFORE, THIS ADDITION OF RS.18,500/- IS CONFIRMED. 8. TO SUM-UP, OUT OF TOTAL ADDITION OF RS.72,500/-, ADDITION OF RS.18,000/- IS DELETED AND REMAINING ADDITION OF RS.54,500/- IS C ONFIRMED. THIS APPEAL IS PARTLY ALLOWED. ITA NO.147/RJT/2014 9. THIS APPEAL IS AGAINST THE ORDER DATED 23.12.20 13 OF LD. CIT(A)-IV, RAJKOT CONFIRMING THE PENALTY OF RS.22,400/- LEVIED BY THE ASSESSING OFFICER U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961. 10. I HAVE HEARD BOTH THE SIDES. IT IS PERTINENT TO NOTE THAT THIS PENALTY WAS IMPOSED BY THE ASSESSING OFFICER IN RESPECT OF ADDI TION OF RS.72,500/- MADE IN THE ASSESSMENT FRAMED U/S 143(3) OF THE INCOME-TAX ACT ON 09.11.2010. ON APPEAL, LD. CIT(A) CONFIRMED THIS ADDITION. ON FURTHER APPEAL B Y THE ASSESSEE, OUT OF TOTAL ADDITION OF RS.72,500/-, ONLY ADDITION TO THE EXTEN T OF RS.54,500/- IS CONFIRMED BY ME (SUPRA). THE LD. COUNSEL OF THE ASSESSEE ARGUED THA T IN RESPECT OF TWO CREDITORS NAMELY (I) DHANJI BHAVAN TADAVIA AND (II) VITHAL GO VIND VADODARIA, THE ASSESSEE COULD NOT PRODUCE CONFIRMATION BUT BOTH THE CREDITO RS WERE GENUINE AS BOTH THESE LOANS WERE REFUNDED TO BOTH THE CREDITORS. IN RESP ECT OF OTHER TWO CREDITORS NAMELY (I) BABUBHAI VALLABHBHAI KATHAROTIA AND (II) DALSUKHBHA I POPATBHAI, HE POINTED OUT THAT THIS ADDITION WAS MADE ON DOUBT AND SUSPICION ON AC COUNT OF MINOR DISCREPANCY IN THE NAME FOR WHICH THE ADDITION CAN BE CONFIRMED BU T PENALTY U/S. 271(1)(C) IS NOT LEVIABLE. AS AGAINST THIS, SHRI J.B. JHAVERI, DR, APPEARED ON BEHALF OF THE REVENUE, VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT(A). 4 126 & 147-RJT-2014 - SHIV STOCK BROCKER (SMC) 11. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. AFTER CAREFULLY CONSIDERING THE CONSPICUOUS FACTS AS DISCUSSED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER FOR M AKING THE ADDITION, I AM OF THE VIEW THAT THIS IS NOT A FIT CASE FOR LEVYING PENALT Y U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961. IN RESPECT OF ALL THE FOUR CREDITORS, ADDRES SES WERE AVAILABLE BEFORE THE ASSESSING OFFICER. NO SUMMONS WERE ISSUED TO ANY OF THE CREDITORS. PENALTY U/S 271(1)(C) IS NOT AUTOMATIC. IN THIS CASE, THE ASSES SEE HAS FURNISHED EXPLANATION WHICH IS NOT FOUND FALSE. IN CASE OF TWO CREDITORS, THE ASSESSEE COULD NOT FURNISH THE CONFIRMATION AND FOR REMAINING TWO OTHER CREDITORS, THERE WAS SOME DISCREPANCY IN THE NAME AS RECORDED IN THE BOOKS OF ACCOUNTS THAN AS PER THE VOTERS IDENTITY CARD. I AM, THEREFORE, OF THE VIEW THAT THIS IS NOT A FIT C ASE FOR LEVYING PENALTY U/S. 271(1)(C) OF THE ACT; THEREFORE, THE PENALTY OF RS.22,400/- LEVI ED BY THE ASSESSING OFFICER U/S. 271(1)(C) IS CANCELLED. THIS APPEAL IS ALLOWED. 12. IN VIEW OF THE FOREGOING, THE APPEAL OF THE ASS ESSEE BEARING ITA NO.126/RJT/2014 IS PARTLY ALLOWED WHILE THE APPEAL BEARING ITA NO.147/RJT/2014 IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 11.04.2014 !$ /RAJKOT *BT / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- M/S. SHIV STOCK BROCKER, OPP. S.T. DE POT, AMRELI 2. / RESPONDENT- THE I.T.O., WARD-2(4), AMRELI 3. ,0,1 * * 2 / CONCERNED CIT, RAJKOT-III, RAJKOT 4. * * 2- / CIT (A)-IV, RAJKOT 5 . 567 1, * 1#, !$ / DR, ITAT, RAJKOT 6 . 79 :; / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT