The ITO, Ward-8(2), Surat V. Shri Jignesh Ghanshyam Sutharia, Surat

ITA 1729/AHD/2014

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8286 (ITAT-SURAT)
• Duration Of Justice: 5 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 05-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAYANK PANDEY
• Assessee Lawyers: R N VEPARI
• Keywords: Income from undisclosed sources
• Section: 69C; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH , SURAT BEFORE SHRI AMARJIT SINGH , JM & SHRI O.P.MEENA, AM ITA NO. 1729 / AHD / 2014 ( ASSESSMENT YEAR 20 09 - 10 ) ITO, WARD 8(2) SURAT . VS. SH. JIGNESH GHANSHYAM SUTHARIA H. NO.1, 1 ST FLOOR , SAHAJ PARK ROW HOUSE, HIRA BAUG, VARACHHA ROAD, NR. KAILASHDHAM SOCIETY, SURAT - 395008. PAN/GIR NO. AZVPS7100F APPELLANT ) .. RESPONDENT ) REVENUE BY SHRI MAYANK PANDEY (SR. DR) ASSESSEE BY SHRI R. N. VEPARI DATE OF HEARING 03 / 10 / 201 9 DATE OF PRONOUNCEMENT 03 / 10 / 201 9 O R D E R PER AMARJIT SINGH (J .M) : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 26 .03.201 4 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) V MAJURA GATE , SURAT [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2008 - 09. 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS . 1. THE LD. CIT(A) HAS ERRED IN DELETING THE PROTECTIVE ADDITION MADE ON ACCOUNT OF UNACCOUNTED LOAN AND ADVANCES AND INTER EST OF RS.4,82,56,000/ - WITHOUT DETERMI NING THE TAXABILI TY OF UNEXPLAINED INCOME IN THE PARTICULAR HANDS. AS IT IS NOW A SETTLED POSITION IN LAW THAT THE ASSESSEE IS BOUND TO EXPLAIN THE NATURE OF TRANSACTIONS RECORDED IN THE DOCUMENT FOUND FROM HIS PREMISES. IN THIS CASE, THE LD. CIT(A) HAS NO T DECIDED TAXABILITY OF THE UNEXPLAINED TRANSACTION EITHER IN THE SUBSTANTIVE ADDITION OR IN THE PROTECTIVE ADDITION. 2. THE LD. CIT(A) HAS ERRED IN DELETING THE PROTECTIVE ADDITION MADE ON ACCOUNT OF UNACCOUNTED INCOME OF RS. 1,50,00,000/ - WITHOUT DETERMININ G THE TAXABILITY OF UNEXPLAINED INCOME IN THE PARTICULAR HANDS. AS IT IS NOW A SETTLED POSITION IN LAW THAT THE ASSESSEE IS BOUND TO EXPLAIN THE NATURE OF TRANSACTIONS RECORDED IN THE DOCUMENT FOUND FROM HIS PREMISES. IN THIS CASE, THE LD. CIT(A) HAS NOT D ECIDED TAXABILITY OF THE UNEXPLAINED TRANSACTION EITHER IN THE SUBSTANTIVE ADDITION OR IN THE PROTECTIVE ADDITION. ITA NO1729 / AHD /201 4 A.Y.2009 - 10 2 3. THE LD. CIT (A) HAS ERRED IN DELETING THE PROTECTIVE ADDITION MADE ON ACCOUNT OF UNACCOUNTED INCOME OF RS. 12,63,96,132/ - AND ADDITION MADE O N ACCOUNT OF RECEIPT OF ON MONEY OF RS.40,27,600/ - WITHOUT DETERMINING THE TAXABILITY OF UNEXPLAINED INCOME IN THE PARTICULAR HANDS. AS IT IS NOW A SETTLED POSITION IN LAW THAT THE ASSESSEE IS BOUND TO EXPLAIN THE NATURE OF TRANSACTIONS RECORDED IN THE DOC UMENT FOUND FROM HIS PREMISES. IN THIS CASE, THE LD. CIT(A) HAS NOT DECIDED TAXABILITY OF THE UNEXPLAINED TRANSACTION EITHER IN DELETING THE PROTECTIVE ADDITION. 4. THE LD. CIT(A) HAS ERRED IN DELETING THE PROTECTIVE ADDITION MADE ON ACCOUNT OF UNEXPLAINED E XPENDITURE U/S 69C OF RS.97,24,958/ - WITHOUT DETERMINING THE TAXABILITY OF UNEXPLAINED INCOME IN THE PARTICULAR HANDS. AS IT IS NOW A SETTLED POSITION IN LAW THAT THE ASSESSEE IS BOUND TO EXPLAIN THE NATURE OF TRANSACTIONS RECORDED IN THE DOCUMENT FOUND FR OM HIS PREMISES. IN THIS CASE, THE LD. CIT(A) HAS NOT DECIDED TAXABILITY OF THE UNEXPLAINED TRANSACTION EITHER IN THE SUBSTANTIVE ADDITION OR IN THE PROTECTIVE ADDITION. 5. THE LD. CIT(A) HAS ERRED IN RESTRICTING THE PROTECTIVE ADDITION MADE ON ACCOUNT OF UNA CCOUNTED INCOME OF RS.34,82,000/ - , RS.1,42,60,000/ - AND RS.5,43,49,000/ - TO RS.1,34,86,000/ - WITHOUT DETERMINING THE TAXABILITY OF UNEXPLAINED INCOME IN THE PARTICULAR HANDS, AS IT IT NOW A SETTLED POSITION IN LAW THAT THE ASSESSEE IS BOUND TO EXPLAIN THE NATURE OF TRANSACTIONS RECORDED IN THE DOCUMENT FOUND FROM HIS PREMISES. IN THIS CASE, THE LD. CIT(A) HAS NOT DECIDE TAXABILITY OF THE UNEXPLAINED TRANSACTION EITHER IN THE SUBSTANTIVE ADDITION OR IN THE PROTECTIVE ADDITION. 3 . AT THE VERY OUTSET, THE LD . REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE PROTECTIVE ADDITION WAS RAISED AGAINST SHRI GHANSHYAM D. SUTHARIYA AND HIS FATHER GHANSHYAM DUNGARBHAI SUTARIYA BUT THE PROTECTIVE ASSESSMENT HAS BEEN MADE SUBSTANTIVE IN THE HANDS OF FATHER OF THE ASSES SEE SHRI GHANSHYAM DUNGARBHAI SUTARIYA BY THE CIT(A) AS WELL AS BY HON'BLE ITAT VIDE ORDER DATED 06.06.2019, THEREFORE, IN THE SAID CIRCUMSTANCES, THE PROTECTIVE ADDITION IS NOT LIABLE TO BE SUSTAINABLE IN THE EYES OF LAW, H ENCE, THE CIT(A) HAS PASSED THE ORDER JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE WITH IN THE INTEREST OF JUSTICE. THE LD. REPRESENTATIVE OF THE REVENUE HAS ADMITTED THIS FACT. BEFORE GOING FURTHER, WE DEEM IT NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON THIS ISSUE: - 6. IN THIS CASE, THE ADDITIONS HAVE BEEN MADE UNDER VARIOUS HEADS, AS MENTIONED IN THE VARIOUS GROUNDS OF APPEAL, ON A PROTECTIVE BASIS, IN THE HANDS OF THE APPELLANT WHILE THE SUBSTANTIVE ADDITION WAS MADE IN THE HANDS OF SHRI GHANSHYAM D. SUTHARIYA TH E FATHER OF THE APPELLANT. THE AO WAS DIRECTED TO CONDUCT NECESSARY INQUIRIES AND SUBMIT A REMAND REPORT IN THE CASE OF GHANSHYAMBHAI D. SUTHARIYA APPEAL NO.CAS/V/219/2011 - 12 IN WHOSE HAND SUBSTANTIVE ADDITIONS HAVE BEEN MADE. THE APPEAL IN THE CASE OF GHA NSHYAMBHAI C SUTHARIYA APPEAL NO. CAS/V/219/2011 - 12 FOR A.Y. 2009 - 10 HAS BEEN DECIDED BY CIT(A) - V, SURAT VIDE APPEAL ORDER DATED 26.03.2014. NO ITA NO1729 / AHD /201 4 A.Y.2009 - 10 3 EVIDENCE HAS BEEN FOUND WHICH INDICATE THAT THE TRANSACTION AND ENTRIES FOUND IN THE IMPOUNDED BOOKS OF ACCOUNTS , BELONGED TO THE APPELLANT. SINCE, THE FINDINGS HAVE BEEN GIVEN REGARDING THE SUBSTANTIVE ADDITIONS IN THE HANDS OF GHANSHYAMBHAI D SUTHARIYA, THE VARIOUS ADDITIONS MADE IN THE HANDS OF THE APPELLANT CANNOT BE SUSTAINED. IN VIEW OF THE ABOVE FACTS ALL THE GROUNDS OF APPEAL ARE ALLOWED. 4. ON APPRAISAL OF THE ABOVE MENTIONED FINDING OF THE CIT(A), WE NOTICED THAT THE PROTECTIVE ADDITION HAS BEEN ORDERED TO BE DELETED BY CIT(A) BECAUSE OF THIS FACT THAT THE PROTECTIVE ADDITION AGAINST HIS FATHER SHRI GHANSH YAM DUNGARBHAI SUTARIYA HAS BEEN MADE SUBSTANTIVE BY COMMISSIONER OF INCOME - TAX VIDE ORDER DATED 26.03.2014 . SUBSEQUENTLY, BOTH PREFERRED THE APPEAL BEFORE THE HON'BLE ITAT AND THE HON'BLE ITAT VIDE ORDER DATED 06.06.2019 CONFIRMED THE SUBSTANTIVE ADDITION IN THE HANDS OF THE FATHER IN ITA. NO.1615/AHD/2014 & 1730/AHD/2014 FOR THE A.Y.2009 - 10 DATED 06.06.2014. SINCE THE ADDITION HAS BEEN MADE SUBSTANTIVE IN THE HANDS OF THE FATHER, THEREFORE, NO PROTECTIVE ADDITION IS LIABLE TO BE SUSTAINABLE IN THE HANDS O F THE ASSESSEE SON OF THE GHANSHYAM D. SUTARIYA. ACCORDINGLY , IT IS CLEAR THAT THE CIT(A) HAS PASSED THE ORDER JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. 5 . IN THE RESULT, THIS APPEAL BY THE REVENUE STANDS D ISMISSED. ORDER PRONO UN CE D IN THE OPEN COURT ON THIS 03 / 10 /2019 SD/ - SD/ - ( O. P. MEENA ) (AMARJIT SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER / SURAT, DATED : 03 /10 / 2019/VIJAY PAL SINGH , SR.PS COPY OF ORDER SENT TO - ASSESSEE/ AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT