The ITO, Ward-14(1), Ahmedabad V. Kumari Ripal Prakashbhai Patel, Ahmedabad

ITA 1694/AHD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94396 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 11-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANITA HARDASANI
• Keywords: Unexplained investment; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER) I.T. A. N O. 1694 /AHD/2015 (ASSESSME NT YEAR: 2006-07) INCOME-TAX OFFICER, WARD- 5(1), AHMEDABAD V/S KUMARI RIPAL PRAKASHBHAI PATEL, 539, MULJI PAREKHS POLE, WADIGAM, DARIYAPUR, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AKHPP0606N APPELLANT BY : SMT. ANITA HARDASANI, SR. D.R. RESPONDENT BY : NONE (WRITTEN SUBMISSIO NS) ( )/ ORDER DATE OF HEARING : 11-09-2015 DATE OF PRONOUNCEMENT : 18 -09-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-5, AHMEDABAD DATED 12.03.2015 FOR A.Y. 2006-07. ITA NO 1694/ AHD/2015 . A.Y. 2006-0 7 2 2. IN THIS CASE ON THE DATE OF HEARING NONE APPEARED O N BEHALF OF ASSESSEE NOR ADJOURNMENT APPLICATION WAS FILED BUT HOWEVER WRITT EN SUBMISSIONS WERE FILED BY THE ASSESSEE. WE THEREFORE PROCEED TO DECI DE THE APPEAL, EX PARTE QUA THE ASSESSEE ON THE BASIS OF MATERIAL ON RECORD AND WRITTEN SUBMISSIONS. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 4. ASSESSEE IS AN INDIVIDUAL AND STATED TO BE HAVING I NCOME FROM SALARY. ASSESSEE FILED HER RETURN OF INCOME FOR A.Y. 2006-0 7 ON 14.06.2006 DECLARING TOTAL INCOME OF RS. 84,000/-. THE CASE WA S SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECT ION 143(3) R.W.S. 144A VIDE ORDER DATED 30.12.2008. SUBSEQUENTLY THE ASSES SMENT FRAMED U/S. 143(3) WAS RE-OPENED U/S. 147 BY ISSUING NOTICE U/S . 148 OF THE ACT AND THE ASSESSMENT WAS THEREAFTER REFRAMED U/S. 143(3) R.W. S. 147 VIDE ORDER DATED 31.01.2013 AND THE TOTAL INCOME WAS DETERMINED AT R S. 14,18,000/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED TH E MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 12.03.2015 GRANTED SUBS TANTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. C IT(A), REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUN DS:- 1.THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN AL LOWING THE APPEAL ON THE ISSUE REGARDING THE ADDITION OF RS.13,34,000/- U/S 69 OF THE I.T.ACT, MADE ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNTS AS THE LD.CIT(A) ERRE D IN LAW IN HOLDING THAT BEING CHANGE OF OPINION NO ADDITION COULD BE MADE IN RESPECT OF CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE AS THE ISSUE STANDS ALREADY EXAMINED I N THE ORIGINAL ASSESSMENT NOTWITHSTANDING THE LEGAL POSITION THAT CHANGE OF O PINION CAN ONLY BE ATTRIBUTED WHEN ON SAME SET OF FACTS DIFFERENT METHOD OF REASONING IS ADOPTED AND IN CASE WHERE NEW FACTS ARE ON RECORD TO SHOW THAT OPINION FORMED EARLIER O N AN ISSUE IN THE ASSESSMENT ITA NO 1694/ AHD/2015 . A.Y. 2006-0 7 3 PROCEEDINGS WAS ERRONEOUS THEN IT CAN'T BE SAID THE REASSESSMENT PROCEEDINGS HAVE BEEN COMPLETED . BY CHANGING THE OPINION. 2.ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L D.CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER AS THE LD.CIT (A) IG NORED FOLLOWING FACTS ON RECORD DESPITE HAVING SUFFICIENT EVIDENCES IN THIS REGARD: (A) NEITHER THE ASSESSEE HERSELF NOR SHRI ARVIND ROMBHO I THAKKOR EVER SUBMITTED ANY CONFIRMATION REGARDING THE FACT THAT THE CASH DEPOS ITED IN THE BANK ACCOUNT OF THE ASSESSEE WAS MADE BY HIM. THE CONFIRMATION FILED ON 18.12.2008 WAS IN THE NAME OF ONE SHRI ASHWIN R. THAKKAR AND IT WAS NOT SIGNED AT ALL. (B) AT THE ADDRESS AVAILABLE IN THE PAN SHRI ARVIND THA KKAR WAS NOT FOUND. (C) THE RE-ASSESSMENT PROCEEDINGS WERE INITIATED AFTER OBTAINING APPROVAL OF THE CIT- VII, AHMEDABAD AS CONVEYED BY HIS OFFICE LETTER NO. CIT-VLL/TECH/148.APPROVAL- RPP/2011-12 DATED 29.03.2012'. 5. BEFORE US, LD. D.R. SUBMITTED THAT THOUGH VARIOUS GROUNDS HAVE BEEN RAISED BUT THE ONLY EFFECTIVE GROUND IS WITH RESPECT TO AD DITION MADE U/S. 69 OF THE ACT. BEFORE US, HE POINTED TO THE VARIOUS OBSERVATI ONS MADE BY A.O AND SUBMITTED THAT ASSESSEE HAD NOT EXPLAINED THE CASH DEPOSITS MADE IN THE BANK AND THEREFORE THE A.O HAD RIGHTLY TREATED IT A S UNEXPLAINED INVESTMENT U/S. 69 OF THE ACT. SHE THUS SUPPORTED THE ORDER OF A.O. 6. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, A.O CONSIDERED THE CASH DEPOSITS OF R S. 13,34,000/- IN THE BANK ACCOUNT BY ASSESSEE AS UNEXPLAINED INVESTMENTS. WE FIND THAT LD. CIT(A) WHILE DELETING THE ADDITION HAS NOTED THAT THE ISSU E ON WHICH THE ASSESSMENT WAS RE-OPENED WAS ALREADY RAISED BY THE A.O IN THE ORIGINAL ASSESSMENT PROCEEDINGS, THE ISSUE WAS ALSO EXAMINED IN THE LIG HT OF THE ASSESSEES SUBMISSIONS AND THE SUBMISSIONS OF THE ASSESSEE WAS ACCEPTED BY A.O AND NO ADDITIONS WERE MADE WHILE FRAMING THE ORIGINAL A SSESSMENT. HE HAS ITA NO 1694/ AHD/2015 . A.Y. 2006-0 7 4 FURTHER GIVEN A FINDING THAT THE ISSUE OF NOTICE U/ S. 148 ON THE ISSUES WHICH HAVE ALREADY BEEN EXAMINED BY THE A.O DURING THE CO URSE OF ORIGINAL ASSESSMENT PROCEEDINGS WOULD TANTAMOUNT TO CHANGE O F OPINION WHICH WAS NOT PERMISSIBLE IN VIEW OF THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA REPORTED IN 488 CTR 228 AND HELD THAT THE RE- OPENING BEYOND THE PERIOD OF 4 YEARS FROM THE END O F RELEVANT ASSESSMENT YEAR WAS NOT IN ORDER AND ACCORDINGLY QUASHED THE R EASSESSMENT ORDER PASSED BY A.O. BEFORE US, REVENUE HAS NOT PLACED ANY MATER IAL ON RECORD TO CONTROVERT THE FINDINGS OF LD. CIT(A). IN VIEW OF T HE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND THUS THE GROUNDS OF REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 18 - 09 - 2015 . SD/- SD/- (S.S. GODARA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AH MEDABAD