The ACIT, Circle-7, Ahmedabad V. Shri Bipinchandra Bhanubhai Pancholi, Ahmedabad

ITA 1472/AHD/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5987 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-02-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 03-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVATIA
• Keywords: Block assessment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER !# I.T.A. NO.1472/AHD/2012 ( / ASSESSMENT YEAR : 2008-09) ACIT, CIRCLE-7, AHMEDABAD. # VS. SHRI BIPINBHAI PANCHOLI 10, CHANDRODAY SOCIETY, NR. SARDAR PATEL STADIUM, OPP. GOLDEN TRI, NAVRANGPURA, AHMEDABAD $ # % & # PAN/GIR NO. : ABEPP 0763 E ( !$' / APPELLANT ) .. ( ($' # RESPONDENT ) !$') # APPELLANT BY : SHRI JAMES KURIAN, SR. DR ($'*) / RESPONDENT BY : SHRI S. N. DIVATIA, AR + ,*-. / DATE OF HEARING 15/02/2017 /012*-. / DATE OF PRONOUNCEMENT 24/04/2017 3# O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XIV, AHMEDABAD, DATED 11/04/2012 FOR THE ASSESSMENT YEAR (AY) 2008-09. ITA NO. 1472/AH D/2012 BIPINCHANDRA BHANUBHAI PANCHOLI VS. ACIT ASST.YEAR 2008-09 - 2 - 2. DEPARTMENT HAS BEEN TAKEN FOLLOWING GROUNDS OF A PPEAL:- (I). THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.85,14,500/- MADE BY THE ASSESSING OF FICER U/S.68 OF THE IT ACT. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- IN THIS CASE, IT IS OBSERVED BY THE AO THAT THE AP PELLANT HAD MADE WITHDRAWALS AND DEPOSITS IN INDIAN OVERSEAS BANK AC COUNT OVER A PERIOD IN CASH AS REPRODUCED IN PARA 4.3 ON PAGE 6 OF THE ORDER. HOWEVER, THE EXPLANATION OFFERED BY THE APPELLANT OF HAVING RE-D EPOSITED THE CASH OUT OF WITHDRAWALS MADE IN PAST WHICH WERE MEANT FOR PU RCHASE OF AGRICULTURE LAND WAS NOT ACCEPTABLE IN ABSENCE OF T HE EVIDENCE RELATING TO SUCH PURCHASE AND THE STATEMENT OF SHRI PARESH K PA TEL DENYING ANY SUCH DEALING WITH THE APPELLANT. THE AO HAS FURTHER OBSE RVED THAT THE EXPLANATION AS TO REDEPOSIT OF CASH WAS NOTHING MOR E THAN A JOKE AND FAR FROM REALITY. HENCE, THE ADDITION WAS MADE. 4. THE APPELLANT BEGS TO SUBMIT THAT THE AO HAS FAI LED TO APPRECIATE FULLY AND PROPERLY THE EXPLANATION OFFERED BY THE A PPELLANT IN THIS REGARD. IT WAS EXPLAINED BY THE APPELLANT THAT THE MONEY WI THDRAWN FROM THE SAID BANK ACCOUNT WAS MEANT FOR THE PURCHASE OF AGRICULT URE LAND IN VIEW OF THE NEGOTIATIONS GOING ON IN THIS REGARD. SECONDLY, THE RELIANCE PLACED BY AO ON THE STATEMENT OF SHRI PARESH PATEL IS MISPLAC ED IN THE SENSE THAT ITA NO. 1472/AH D/2012 BIPINCHANDRA BHANUBHAI PANCHOLI VS. ACIT ASST.YEAR 2008-09 - 3 - NO DEAL WAS STUCK WITH THE SAID PARTY BUT NEGOTIATI ONS WERE CARRIED OUT IN THIS REGARD. THE PERUSAL OF STATEMENT RECORDED BY T HE AO SHOWS THAT HE WAS ASKED ABOUT ANY DEED EXECUTED WITH THE APPELLAN T BUT HE SHOULD HAVE BEEN ASKED ABOUT THE NEGOTIATIONS IN RESPECT OF LAN D. THE APPELLANT HAD ALSO EXPLAINED IN HIS REPLY DTD. 29/12/2010 THAT TH E SAID NEGOTIATION COULD NOT MATERIALIZE ON ACCOUNT OF INCREASE IN LAND PRIC ES WHICH BECAME PROHIBITIVE FOR THE APPELLANT TO MAKE PURCHASE. THE REFORE, THE EXPLANATION OFFERED BY THE APPELLANT TO WITHDRAW HEAVY CASH FRO M THE SAID BANK ACCOUNT SHOULD HAVE BEEN ACCEPTED BY THE AO. 5. THE APPELLANT HAD ALSO CONTENDED THAT THE TRANSA CTIONS RELATING TO THE SAID BANK ACCOUNT WERE DULY RECORDED IN THE REG ULAR BOOKS OF ACCOUNT, MAINTAINED BY THE APPELLANT AND FURTHER THAT THE SA ME HAVE NOT BEEN REJECTED BY THE AO. THEREFORE, THE CASH DEPOSITS MA DE IN THE SAID BANK ACCOUNT COULD NOT BE HELD AS UNEXPLAINED BY AO. 6. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER PASSED BY THE LEARNED CIT(A), IN THIS CASE, DR RELI ED ON THE AO, WHEREAS LEARNED AR CONTENDED AND SHOWN THE BANKS STATEMENT S OF THE APPELLANT FOR THE A.Y. 2007-08, WHERE ALL THE ENTRIES ARE MAD E AND REMAND REPORT FROM THE AO WAS ALSO SOUGHT BY THE LEARNED CIT(A) A ND IT IS ALSO PERTINENT TO MENTION HERE THAT BOOKS OF ACCOUNT WER E NOT REJECTED BY THE ITA NO. 1472/AH D/2012 BIPINCHANDRA BHANUBHAI PANCHOLI VS. ACIT ASST.YEAR 2008-09 - 4 - LEARNED AO. APPELLANT HAS GIVEN DETAILS OF EACH AND EVERY, BUT AO WAS FAILED TO CONSIDER THE SAME. 7. LEARNED AR ALSO CITED AN ORDER OF CO-ORDINATING BENCH IN THE MATTER OF ANAND AUTORIDE LTD. VS. JOINT COMMISSIONER OF INCOM E-TAX [2006] 99 ITD 227 (AHD.): SECTION 158BD OF THE INCOME-TAX ACT, 1961 - BLOCK ASSESSMENT IN SEARCH CASES - UNDISCLOSED INCOME OF ANY OTHER PERSON -BLOCK PER IOD 1987-88 TO 1996-97 - CERTAIN CASH WAS SEIZED FROM TWO PERSONS BEING PEON S OF ASSESSEE-COMPANY - ASSESSEE-COMPANY STATED THAT SAID AMOUNT BELONGED T O IT AND SAME WAS BEING CARRIED FOR DEPOSITING IN BANK - ASSESSEE-COMPANY H AD PRODUCED CASH BOOK ALSO WHEREIN SAID CASH BALANCE HAD BEEN RECORDED - HOWEVER, AS THERE WERE SOME DISCREPANCIES IN STATEMENTS OF OFFICE MANAGER AND DIRECTORS OF ASSESSEE- COMPANY WITH REGARD TO TIMINGS OF CASH TAKEN BY THO SE TWO PERSONS TO BANK AND WITH REGARD TO DENOMINATION OF NOTES, ETC., AND THERE BEING NO EXPLANATION FOR KEEPING SUCH LARGE AMOUNT IN CASH FOR LONG TIME , ASSESSING OFFICER HELD THAT CASH WAS UNACCOUNTED AMOUNT AND REMAINED UNEXP LAINED - HE, THEREFORE, MADE ADDITIONS IN HANDS OF ASSESSEE-COMPANY OF THAT AMOUNT - WHETHER ANY DISCREPANCY IN STATING EXACT DENOMINATION OF CURREN CY NOTES SEIZED BY POLICE MIGHT NOT BE A VALID GROUND FOR MAKING ADDITION BEC AUSE NO ACCOUNT WAS NORMALLY KEPT FOR EXACT DENOMI- NATION OF NOTES AVA ILABLE WITH A PARTICULAR PERSON - HELD, YES - WHETHER FACT THAT ASSESSEE COU LD NOT EXPLAIN AS TO WHY IT RETAINED SO MUCH CASH FOR A LONG TIME, WOULD BE A G ROUND FOR REJECTING CONTENTION OF ASSESSEE FOR AVAILABILITY OF CASH - H ELD, NO - WHETHER IN ABSENCE OF ANY MATERIAL TO SHOW THAT CASH SHOWN IN CASH BOO K HAD BEEN USED BY ASSESSEE ELSEWHERE; OR THAT THERE WAS NO POSSIBILIT Y OF THAT CASH BEING AVAILABLE WITH ASSESSEE, NO ADDITION WAS TO BE MADE FOR SOME MINOR AND INSIGNIFICANT VARIATION ABOUT CARRYING CASH IN SPEC IFIC DENOMINATION OR ABOUT TIMING OF PERSONS WHO CARRIED MONEY FOR DEPOSITING IN BANK - HELD, YES - WHETHER THEREFORE, ADDITION WAS TO BE DELETED - HEL D, YES. 8. RESPECTFULLY FOLLOWING THE ORDER OF THE BENCH, W E DECIDE THIS MATTER IN FAVOUR OF THE ASSESSEE. ITA NO. 1472/AH D/2012 BIPINCHANDRA BHANUBHAI PANCHOLI VS. ACIT ASST.YEAR 2008-09 - 5 - 9. IN THE RESULT, APPEAL FILED BY DEPARTMENT IS DIS MISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 24/04/2017 SD/- SD/- ( ) 4 5 ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 24/04/2017 PRITI YADAV, SR. PS !'# $#! # COPY OF THE ORDER FORWARDED TO : 1. !$' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 67- + 8- / CONCERNED CIT 4. + 8- 4!5 / THE CIT(A)-XIV, AHMEDABAD. 5. 9:;-67 !.!672 ! / DR, ITAT, AHMEDABAD 6. ;<=, # GUARD FILE. % & / BY ORDER, (9-- //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY