The ITO, Ward-5(1), Surat V. Shri Bhupendra Maganlal Ghantiwala, Surat

ITA 1621/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1790 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 26-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: M K PATEL
• Keywords: Retrospective amendment; Corroborative evidences; Tax effect

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI S. S. GODARA, JM, AND SHRI MANISH BORAD , AM ./ITA.NO.1621/AHD/2012 ( / ASSTT YEAR : 2008-09) ITO, WD-5(1), SURAT. VS. SHRI BHUPENDRA MAGANLAL GHANTIWALA, 4/307, DUDHARA SHERI, BEGAMPURA, SURAT. PAN : ACJPG 6610P (APPELLANT) (RESPONDENT) / APPELLANT BY: MR. DINESH SINGH, SR.DR / RESPONDENT BY: MR. M. K. PATEL, AR / DATE OF HEARING 4/04/2016 /DATE OF PRONOUNCEMENT 4/4/2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD.CIT(A)- 1, SURAT, DATED 3.4.2012 PASSED FOR THE ASSTT.YEAR 2008-09. 2. THE GRIEVANCES OF THE REVENUE, AS PER GROUNDS OF APPEAL ARE AS FOLLOWS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN SUBSTITUTING THE ADDITION OF RS. 16,67,704/- MADE BY THE A.O. ON THE GROUND OF UNEXPLAINED CASH DEPOSITS IN UNDISCLOSED BANK ACCOUNT BY AN ADDITION OF RS.5,85,530/- AS G.P. @ 10.11% ON ITA.NO.1621/AHD/2012 - 2 RS.16,67,704/- PLUS SEED CAPITAL OF RS.4,16,925/- AND TH EREBY GAVE RELIEF OF RS.10,82,174/- ON WRONG FOOTINGS. 2. THE CIT(A) HAS NOT APPRECIATED THE FACT FINDINGS AND INVESTIGATIONS DONE BY THE A.O. FOR THE ADDITION MADE ON ACCOUNT OF UNEXP LAINED CASH/CHEQUE DEPOSITS IN UNDISCLOSED BANK ACCOUNT TO THE TUNE OF RS.16,6 7,704/-. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS FAILED TO APPRECIATED THAT ONUS WAS ON ASSE SSEE TO SUBSTANTIATE THAT CASH DEPOSIT WAS UTILIZED IN THE PURCHASE /SALE OF THE BUSINESS. NO EVIDENCE IN THIS REGARD WAS FURNISHED BEFOR E THE A.O. NEITHER IT IS CLEAR FROM THE ORDER OF THE CIT(A) AS WH AT WAS THE END RESULT OF ALLEGED TRADING FOR WANT OF SUPPORTING EVIDENCE FO R EACH AND EVERY DEBIT/CREDIT ENTRY THE DEPOSITS/WITHDRAWALS REMAIN UNEX PLAINED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A), SURAT OUGHT TO HAVE UPHELD THE ORDER OF T HE ASSESSING OFFICER. 5. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD .CIT(A)-IV, SURAT MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER'S ORDER MAY BE RESTORED. 3. THIS APPEAL WAS PRESENTED ON 26.7.2012. ON 10.1 2.2015 THE CBDT HAS ISSUED INSTRUCTIONS BEARING NO. 21/2015 PR OHIBITING ITS SUBORDINATE AUTHORITIES FROM FILING OF THE APPEAL T O THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A) WHERE THE TAX EFFECT BY VIR TUE OF THE RELIEF GIVEN BY THE CIT(A) IS LESS THAN RS.10 LAKHS. THE INSTRU CTIONS HAVE BEEN MADE APPLICABLE WITH RETROSPECTIVE EFFECT, MEANING THERE BY, THESE INSTRUCTIONS ARE APPLICABLE ON PENDING APPEALS ALSO. THE TAX EF FECT ON DELETION OF THIS TOTAL ADDITION WOULD BE LESS THAN RS.10 LAKHS. THE PRESENT APPEAL DESERVES TO BE DISMISSED BEING TREATED TO BE FILED IN VIOLATION OF CBDT INSTRUCTIONS. THE CASE DOES NOT FALL WITHIN THE AMB IT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERVE D THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, ITA.NO.1621/AHD/2012 - 3 ON RE-VERIFICATION AT THE END OF THE AO, IT CAME TO THE NOTICE THAT THE TAX EFFECT IS MORE OR IT FALLS WITHIN THE AMBIT OF EXCE PTIONS PROVIDED IN THE INSTRUCTION, THEN THE DEPARTMENT WILL BE AT LIBERTY TO APPROACH THE TRIBUNAL FOR RECALL OF THIS ORDER. SUCH APPLICATIO N SHOULD BE FILED WITHIN FOUR YEARS OF THIS ORDER. IN VIEW OF THE ABOVE, TH E APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 4 TH APRIL, 2016 AT AHMEDABAD. SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 04 /04/2016 ! '!/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. '(( ) * / CONCERNED CIT 4. ) * ( ) / THE CIT(A)- 5. !-. , ,012 /DR,ITAT, AHMEDABAD, 6. .3 45 / GUARD FILE. ) ' / BY ORDER, ' (0 (ASSTT.REGISTRAR) ITA.NO.1621/AHD/2012 - 4 ITAT, AHMEDABAD 1. DATE OF DICTATION .. : 4/ 4/2016. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 4/4/2016 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FO R PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 5/4/16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATUR E ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER