Shri Jayantilal K. Bharwad, Ahmedabad V. The Income Tax Officer, Ward-14(2), Ahmedabad

ITA 1492/AHD/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8585 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 26-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K C THAKER
• Section: 143(3); 234B; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S. S. GODARA, JUDICIAL MEMBER) ITA. NO: 1492/AHD/2015 (ASSESSMENT YEAR: 2008-09) JAYANTILAL K. BHARWAD, 48, RANGDEEP SOCIETY, VEJALPUR, AHMEDABAD V/S INCOME TAX OFFICER, WARD- 14 (2), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AEEPB 4245A APPELLANT BY : SHRI K. C. THAKER, AR RESPONDENT BY : SHRI SUMIT KUMAR VERMA, SR. D.R. ( )/ ORDER DATE OF HEARING : 05 -04-201 8 DATE OF PRONOUNCEMENT : 09-04-2018 PER N.K. BILLAIYA, ACCOUNTANT MEMBER 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-5, AHMEDABAD DATED 02.03.2015 PERTAINING TO A.Y. 2008- 09. ITA NO. 1492 /AHD/2015 . A.Y.2008-09 2 2. THE GRIEVANCE OF THE ASSESSEE IS TWOFOLD. FIRSTLY, THE ASSESSEE IS AGGRIEVED BY THE REOPENING OF THE ASSESSMENT AND SECONDLY, THE ASSES SEE IS AGGRIEVED BY THE ADDITION OF RS. 7,69,900/-. 3. FACTS ON RECORD SHOW THAT THE ORIGINAL ASSESSMENT W AS FRAMED U/S. 143(3) OF THE ACT VIDE ORDER DATED 07.10.2010 AND THE INCOME WAS ASSESSED AT RS. 1,43,865/-. 4. PURSUANT TO THE NOTICE ISSUED U/S. 148 OF THE ACT, THE ASSESSEE FILED RETURN OF INCOME ON 13.07.2012 DECLARING TOTAL INCOME AT RS. 1,38,964/-. 5. THE REASONS FOR REOPENING OF THE ASSESSMENT READ AS UNDER:- ANNEXURE-A NAME & ADDRESS OF THE ASSESSEE JAYANTIBHAI K BHARW AD 48, RANGDIP SOCIETY, VEJALPUR, AHMEDABAD NATURE OF BUSINESS - ACTIVITY SALARY PAN/STATUS/WARD/CIRCLE AEEPB4245A, INDIVIDUAL, WD: 14(2) A.Y. 2008-09 THE ASSESSEE HAS NOT DECLARED THE AGRICULTURAL INCO ME FOR THE TAX PURPOSE IN RETURN OF INCOME FOR THE A.Y. 2008-09. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE DECLARED HIS AGRICULTURAL INCOME AND STATED THAT TH IS AGRICULTURAL INCOME WAS DEPOSITED IN CASH IN BANK ACCOUNT. IN VIEW OF THE PRINCIPAL OF APPROBATE AND REPROBATE, ONCE THE INCOME NOT DECLARED FOR TAX PUR POSE, IT CANNOT BE AVAILABLE FOR THE ASSESSEE TO GET BENEFIT FOR TAXATION OR REGULAR IZE THE SAME. THUS, TO THE EXTENT OF AGRICULTURAL INCOME, CASH DEPOSITED IN BANK CO NSIDERED TO BE UNEXPLAINED SOURCE. UNDER ASSESSMENT ON THIS ACCOUNT COMES TO RS. 7,06, 682/- WHICH RESULTED IN SHORT LEVY OF TAX OF RS, 2,18,364/- PLUS INTEREST U/S. 234B OF THE ACT. AHMEDABAD [P.M. PANCHAL] 22-03-2012 INCOME TAX OFFICER, WARD-14(2), AHMEDABAD ITA NO. 1492 /AHD/2015 . A.Y.2008-09 3 6. DURING THE COURSE OF THE ORIGINAL ASSESSMENT PROCEE DINGS, THE A.O. NOTICED SOME CASH DEPOSITED IN THE BANK ACCOUNTS OF THE ASS ESSEE. THE ASSESSEE EXPLAINED THE SOURCE OF CASH DEPOSITED IN THE BANK AS AGRICULTURAL INCOME OF HIS FAMILY MEMBERS. THE A.O. WAS OF THE OPINION THAT SI NCE THE ASSESSEE HAD NOT DECLARED AGRICULTURAL INCOME IN HIS RETURN OF INCOM E, HE ISSUED NOTICE U/S. 148 OF THE ACT AND BEING NOT SATISFIED WITH THE CLAIM O F AGRICULTURAL INCOME OF THE ASSESSEE, HE MADE THE ADDITION OF RS. 7,69,900/- BE ING CASH DEPOSITED IN BANK ACCOUNT TREATING THE SAME FROM UNEXPLAINED SOURCE O F INCOME. 7. WE HAVE GIVEN CAREFUL CONSIDERATION TO THE FACTS DI SCUSSED IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND ALSO IN THE REOPENED ASS ESSMENT PROCEEDINGS. IN OUR CONSIDERED OPINION, ONCE THE CASH WAS FOUND TO BE DEPOSITED IN THE BANK ACCOUNT DURING THE COURSE OF THE ORIGINAL ASSESSMEN T PROCEEDINGS, THE A.O. SHOULD HAVE ADDED THAT AMOUNT THEN AND THERE ONLY. WE FAIL TO UNDERSTAND WHY THE ASSESSMENT WAS REOPENED FOR MAKING THE ADDITION . IF THE A.O. WAS NOT SATISFIED WITH THE SOURCES OF THE CASH DEPOSIT IN T HE BANK ACCOUNT IN THE ORIGINAL ASSESSMENT PROCEEDINGS NOTHING PREVENTED HIM FROM T REATING THE SAID CASH DEPOSIT AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCE. IN OUR UNDERSTANDING OF THE FACTS AND THE LAW, THE REOPENI NG OF THE ASSESSMENT IS NOT CORRECT AND THEREFORE ON GIVEN FACTS OF THE CASE, T HE REOPENING IS QUASHED. THE APPEAL OF THE ASSESSEE IS ALLOWED ON THIS POINT ITS ELF AND THEREFORE, THERE IS NO NEED TO GO INTO THE MERITS OF THE ADDITION. ORDER PRONOUNCED IN OPEN COURT ON 09- 04- 20 18 SD/- SD/- (S. S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 09 /04/2018