The ITO, Ward-9(2), Surat V. Shri Ghanshyambhai Bechubhai Gondaliya, Surat

ITA 1483/AHD/2012

• Counselvise Citation: 148320514 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 08-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 05-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SRI D.K TYAGI, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTA NT MEMBER THE INCOME-TAX OFFICER WARD 6 9(2) ROOM NO. 421, AAYAKAR BHAVAN, MAJURA GATE, SURAT (APPELLANT) VS SHRI GHANSHYAMBHAI BACHUBHAI GONDALIYA, 102, SARTHI COMPLEX, TURAVA COMPOUND, VARACHHA ROAD, SURAT PAN: AFLPG5061K (RESPONDENT) REVENUE BY: SRI K. C. MATHEWS, SR.D.R. ASSESSEE BY: NONE DATE OF HEARING : 08-08-2013 DATE OF PRONOUNCEMENT : 23-08-20 13 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE REVENUES APPEAL AGAINST THE ORDER OF LD. CIT(A)-V SURAT DATED 14-03-2012. ITA NO. 1483/AHD/2012 ASSESSMENT YEAR 2008-09 I.T.A NO. 1483/AHD/2012 A.Y. 2008-09 PAGE NO ITO VS. GHANSHYAMBHAI BACHUBHAI GONDALIYA 2 2. THE REVENUE IS AGGRIEVED AGAINST THE ORDER OF LD . CIT(A) IN DELETING THE ADDITION OF RS. 13,25,000/- MADE BY ASSESSING O FFICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. 3. BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSE SSMENT PROCEEDING, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DE POSITED IN BANK ACCOUNT NO. S.B. 9887 WITH THE VARACHHA CO-OP BANK LTD. SUR AT. IN RESPONSE TO THIS, THE AR OF THE ASSESSEE SUBMITTED A COPY OF CA SH BOOK AND STATED THAT THE ASSESSES IS HAVING OPENING CASH BALANCE OF RS.2 ,58,815/-. DURING THE YEAR, THE ASSESSES HAS RECEIVED CASH OF RS.13,25,00 0/- ON VARIOUS DATES FROM HIS FIRM M/S. MANSAROVAR ENTERPRISES AND RS. 95,750 /- WAS RECEIVED AS INCOME FROM OTHER SOURCES. THEREFORE, THE COPY OF R ETURN OF INCOME, CAPITAL ACCOUNT AND BALANCE SHEET OF THE FIRM M/S. MANSAROV AR ENTERPRISES FOR A.Y. 2008-09 WAS CALLED FOR. IN RESPONSE, THE ASSESSEE S TATED THAT M/S. MANSAROVAR ENTERPRISES HAS NOT FILED RETURN OF INCO ME FOR A.Y. 2008-09 AND NOT PREPARED THE CAPITAL ACCOUNT AND NOT MAINTAINED THE BOOKS OF ACCOUNT OF THE FIRM. THE ASSESSEE SUBMITTED A XEROX COPY OF AC COUNT CONFIRMATION FROM HIS OWN BOOKS OF ACCOUNTS ON WHICH SIGNATURE WAS TA KEN FROM THE PARTNER OF THE FIRM. AS THE GENUINENESS OF THE CASH BROUGHT IN THE CASH BOOK WAS NOT PROVED, A SHOW CAUSE NOTICE WAS ISSUED ASKING THE A SSESSEE TO EXPLAIN WHY THE CASH OF RS. 13,25,000/- SHOWN TO HAVE BEEN RECE IVED FROM THE PARTNERSHIP FIRM SHOULD NOT BE TREATED AS UNEXPLAIN ED CASH. IN RESPONSE, THE ASSESSEE REPLIED AS UNDER: I.T.A NO. 1483/AHD/2012 A.Y. 2008-09 PAGE NO ITO VS. GHANSHYAMBHAI BACHUBHAI GONDALIYA 3 THE FIRM HAS MAINTAINED THE BOOKS OF ACCOUNT AND T HEREFORE THE LEDGER ACCOUNT FROM THE BOOKS OF THE FIRM WAS SUBMITTED TO YOU ON 06.12.2010. THE COPY OF RETURN OF INCOME AND ASSESSMENT ORDER U/S. 143(3) WITH AUDIT REPORT OF A.Y. 2007-08 WERE ALSO SUBMITTED TO YOU ON 06.12 .2010. THE FIRM HAD DISCLOSED RS.1,40,00,000/- AND HAD AVAILABLE CASH O N HAND OF RS. 37,55,513/- ON 01.04.2008. IN A.Y. 2008-09 EXCEPT THE RETURN OF CAPITAL TO THE PARTNERS, THE FIRM HAD NO BUSINESS AND THEREFOR E, THE RETURN OF INCOME WAS NOT FILED .' BUT THE REPLY OF THE ASSESSES WAS NOT ACCEPTED BY T HE AO AND THE ABOVE SAID AMOUNT OF RS. 13,25,000/- WAS ADDED TO THE TOTAL IN COME OF THE ASSESSEE. 4. AGGRIEVED ASSESSEE WENT IN APPEAL AND PLACED REL IANCE ON THE FOLLOWING SUBMISSION:- THE APPELLANT HAD CLAIMED THAT THERE WAS OPENING C ASH BALANCE OF RS. 2,58,815/- AND HAD RECEIVED CASH OF RS. 13,25,0 00/- ON VARIOUS DATES FROM THE FIRM M/S. MANSAROVAR ENTERPRISE IN W HICH THE APPELLANT IS A PARTNER. THE APPELLANT SUBMITTED THE COPY OF RETURN OF INCOME, CAPITAL A/C. AND BALANCE SHEET OF THE FIRM M/S. MANSAROVAR ENTERPRISE FOR A.Y. 2007/08 AND FURTHER SUBMITTED T HE CAPITAL A/C. OF ASSESSES IN THE BOOKS OF MANSAROVAR ENTERPRISE AS W ELL AS THE BALANCE SHEET AND CASH BOOK OF THE FIRM FOR A.Y. 2008/09 BE FORE THE ASSESSING OFFICER TO SUBSTANTIATE THE CLAIM OF CASH WITHDRAWA LS FROM FIRM. THE ASSESSING OFFICER DISBELIEVED THE CONTENTION OF THE APPELLANT ON THE GROUND THAT NO RETURN OF INCOME OF THE FIRM FOR A.Y . 2008/09 WAS FILED. THE ASSESSING OFFICER POINTED OUT THAT THE A PPELLANT HAD NOT PRODUCED THE CAPITAL A/C. OF THE FIRM, TRADING & PR OFIT & LOSS A/C. AND BALANCE SHEET, OF THE FIRM FOR A.Y. 2008/09. TH E APPELLANT CONTENDED THAT HE HAD SUBMITTED THESE DETAILS ON 06 .12.2010 AND 24.12.2010. THESE FACTS WERE ALSO BORNE OUT IN THE STATEMENT OF FACTS FILED BY THE APPELLANT. THE APPELLANT HAD ALSO SUBM ITTED ALL THESE DETAILS AND EVIDENCES BEFORE ME. FROM THE CASE RECO RDS CALLED FOR I FOUND THAT THE SAME DETAILS WERE SUBMITTED BY THE A PPELLANT. I.T.A NO. 1483/AHD/2012 A.Y. 2008-09 PAGE NO ITO VS. GHANSHYAMBHAI BACHUBHAI GONDALIYA 4 5. LD. CIT(A) AFTER TAKING INTO CONSIDERATION THE S UBMISSION OF THE ASSESSEE DELETED THE ADDITION. 6. NOW AGGRIEVED REVENUE IS IN APPEAL BEFORE US. 7. AT THE TIME OF HEARING LD. DR RELIED ON THE ORDE R OF ASSESSING OFFICER WHILE LEARNED COUNSEL OF THE ASSESSEE RELIED ON THE ORDER OF LD. CIT(A). 8. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT ASSESSING OFFICER HAS MADE THE ADDITION OF RS. 13,2 5,000/- TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN HIS BANK ACCOUNT. LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE AS HE F OUND THE CONTENTION OF THE ASSESSEE TO BE CORRECT AFTER GOING THROUGH THE DETA ILS AND EVIDENCES FILED BY THE ASSESSEE BEFORE HIM THAT THIS AMOUNT WAS RECEIV ED ON VARIOUS DATES FROM THE FIRM M/S MANSAROVAR ENTERPRISE IN WHICH ASSESS EE WAS A PARTNER. THIS CONTENTION OF THE ASSESSEE WAS NOT ACCEPTABLE TO TH E AO SIMPLY BECAUSE FIRM, M/S MANSAROVAR ENTERPRISE DID NOT FILE THIS R ETURN FOR ASSESSMENT YEAR 2008-09 DUE TO DISCONTINUED BUSINESS. SINCE THERE IS NO DISPUTE ABOUT THE FACT THAT THE FIRM HAD FILED A RETURN SHOWING THE I NCOME OF RS. 1,44,52,490/- DURING THE ASSESSMENT YEAR 2007-08 AND HAD PAID TAX ON THIS INCOME HAVING CASH IN HAND OF RS. 37,55,513/- OUT OF WHICH RS. 13 ,25,000/- WAS CLAIMED TO HAVE BEEN GIVEN TO ASSESSEE WHICH WAS DEPOSITED BY HIM IN HIS BANK ACCOUNT, WE ARE NOT INCLINED TO INTERFERE WITH THE ORDER PASSED BY LD. CIT(A) AND THE SAME IS HEREBY UPHELD. I.T.A NO. 1483/AHD/2012 A.Y. 2008-09 PAGE NO ITO VS. GHANSHYAMBHAI BACHUBHAI GONDALIYA 5 9. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (A.K. GARODIA) ( D.K. TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 23/08/2013 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,