The ITO, Ward-9(1), Surat V. Shri Ashwinbhai Jayantibhai Patel, Surat

ITA 1645/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9682 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 29-01-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 15-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Retrospective amendment; Tax effect
• Section: 131

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE S/SHRI KUL BHARAT,JM AND MANISH BORAD, AM ./ITA.NO.1645/AHD/2011 ( / ASSTT YEAR : 2006-07) INCOME-TAX OFFICER, WARD-9(1),SURAT VS. SHRI ASHWINBHAI J. PATEL, 79, BHAGUNAGAR SOCIETY, MATAWADI, LAMBE HANUMAN ROAD, SURAT. PAN :ALGPP 4087P (APPELLANT) (RESPONDENT) / APPELLANT BY: SMT. SONIA KUMAR, SR. DR / RESPONDENT BY: SHRI M. K. PATEL, AR / DATE OF HEARING 29/1/2016 /DATE OF PRONOUNCEMENT 02-02-2016 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD.COMMISSIONER INCOME-TAX (APPEALS)-V, SURAT DATED 28.02.2011 PASSED FOR THE ASSTT.YEAR 2006-07. 2. THE GRIEVANCE OF THE REVENUE IS AS PER FOLLOWING GROUNDS OF APPEAL :- ITA.NO._1645/AHD/2011 - 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.10, 89,223/- MADE ON ACCOUNT OF DISALLOWANCE OF UNEXPLAINED EXPE NSES DESPITE OBSERVING THAT THE ASSESSEE WAS UNABLE TO P RODUCE ANY EVIDENCE FOR THE EXPENDITURE AS WELL AS INCOME SHOWN IN THE PROFIT AND LOSS ACCOUNT AND ASSESSEES ADMISSIO N IN STATEMENT RECORDED U/S 131 THAT THERE WERE NO EXPEN SES AGAINST THE INCOME SHOWN. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,2 2,536/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT DESPITE T HE FACT THAT THE ASSESSEE FAILED TO FILE ANY EXPLANATION WI TH REGARD TO THE DIFFERENCE IN THE VALUE OF PROPERTY AS ASCERTAI NED BY THE STAMP VALUATION AUTHORITY AND TO EXPLAIN SOURCE OF INVESTMENT OF SUCH DIFFERENTIAL AMOUNT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.5,0 0,000/- MADE ON ACCOUNT OF UNEXPLAINED DEPOSITS DE4SPITE TH E FACT THAT THE ASSESSEE FAILED TO PROVE THE CREDITWORTHIN ESS OF THE ALLEGED DEPOSITOR. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,3 5,500/- MADE ON ACCOUNT OF UNEXPLAINED AGRICULTURAL INCOME DESPITE THE FACT THAT THE ASSESSEE FAILED TO FURNISH ANY EV IDENCES WITH REGARD TO EXPENDITURE INCURRED IN CARRYING OUT SUCH AGRICULTURAL ACTIVITY WHICH WOULD RESULT IN EARNING THE AGRICULTURE INCOME SHOWN. 5. IT IS, THEREFORE, PRAYED THAT THE APPELLATE ORDE R OF THE LD. CIT(A) MAY BE CANCELLED AND THE ORDER OF THE AO MAY BE UPHELD. 3. THIS APPEAL WAS PRESENTED ON 15/6/2011. 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 ITA.NO._1645/AHD/2011 - 3 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 E FFECT 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 AM BIT OF EXCEPTIONS PROVIDED IN THE INSTRUCTIONS. IT IS FURTHER OBSERV ED THAT SINCE, WHILE HEARING THE APPEAL, SUCH FACTORS WERE NOT CONSIDERE D, THEREFORE, IN CASE, 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 DISMISS ED. ITA.NO._1645/AHD/2011 - 4 ORDER PRONOUNCED IN THE COURT ON 2ND FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER AHMEDABAD; DATED, 02/02/2016 ! '!/ 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) ITAT, AHMEDABAD 1. DATE OF DICTATION .. : 1/2/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : 1/2/2016 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 D ICTATING MEMBER FOR 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 2/216 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER