Shri Vipulbhai Purshottambhai Suthar, Gandhinagar V. ITO, Ward-4, Mehsana

ITA 1748/AHD/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4457 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R MAKWANA
• Assessee Lawyers: HARSHAD J THAKKAR
• Keywords: Peak credit
• Section: 143(3); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH (CONDUCTED THROUGH VIRTUAL COURT) BEFORE: SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER VIPULBHAI PURSHOTTAMBHAI SUTHAR, B-68, GOPALNAGAR SOCIETY, AT: BORISANA, TA: KALOL DIST: GANDHINAGAR PAN: CNDPS2677F (APPELLANT) VS THE ITO, WARD-4, MEHSANA (RESPONDENT) REVENUE BY: SHRI R.R. MAKWANA, SR. D.R. ASSESSEE BY: SHRI HARSHAD J. THAKKA R, A.R. DATE OF HEARING : 29-09-2021 DATE OF PRONOUNCEMENT : 30-09-20 21 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THIS ASSESSEES APPEAL FOR A.Y. 2010-11, ARISES FRO M ORDER OF THE CIT(A), GANDHINAGAR, AHMEDABAD DATED 11-05-2018, I N PROCEEDINGS UNDER SECTION 143(3) R.W.S. 144 R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- 1) THE ASSESSING OFFICER HAS ERRED THE LAW AS WELL AS IN FACTS OF THE CASE BY ISSUE OF A NOTICE U/S 148 WITHOUT CALLING ANY DETAILS OF BANK ACCOUNTS FU RNISHED BY THE BANK BEFORE 6 YEARS. ITA NO. 1748/AHD/2018 ASSESSMENT YEAR 2010-11 I.T.A NO. 1748/AHD/2018 A.Y. 2010-11 PAGE NO SHRI . VIPULBHAI PURSHOTTAMBHAI SUTHAR VS. ITO 2 2) THE ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS IN FACTS WITHOUT SUPPLYING ANY REASONS OF REOPENING THE CASE WHICH WAS PRIME DUTY IN SUCH OLD MATTER. 3) THE ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS IN FACTS BY TREATING THE TOTAL OF CREDIT SIDE O F SAVING ACCOUNT AS TOTAL INCOME CHARGEABLE TO TAX WI THOUT REDUCING WITHDRAWALS. 4) THE ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS IN FACTS BY APPLYING SECTION 68 WRONGLY, WHERE THERE IS NEITHER BOOKS OF ACCOUNTS MAINTAINED AND NOR ANY ENTRY THEREIN. 5) THE ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS IN FACTS WITHOUT TAKING PEAK CREDIT THEORY IN SUCH TYPE OF CASE WHICH IS WELL ESTABLISHED BY THE JUDICIARY ARIA ACCEPTED BY THE DEPARTMENT. 6) THE ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS IN FACTS BY NOT CONSIDERING APPELLANT'S LAPSE IN COMPLIANCES RESULTED DUE TO LESS EDUCATION, RESI DING IN SMALL VILLAGE AND NOT MAINTAINING BOOKS OF ACCOUNTS. 3. THE RELEVANT FACT OF THE CASE IS THAT THERE WAS AN AIR INFORMATION THAT THERE WAS CASH DEPOSIT OF RS. 10,11,000/- IN THE SA VING BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH THE AXIS BANK. THEREFORE, CASE OF THE ASSESSEE WAS REOPENED BY ISSUING OF NOTICE U/S. 148 OF THE A CT ON 27 TH MARCH, 2017. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER STAT ED THAT ASSESSEE HAS NOT MADE ANY COMPLIANCE WITH THE NOTICE U/S. 148 OF THE ACT AND NO RETURN OF INCOME WAS FILED. IT IS ALSO STATED THAT ASSESSEE HAS ALSO FAILED TO MAKE COMPLIANCE WITH THE VARIOUS NOTICES ISSUED DURING T HE COURSE OF RE- ASSESSMENT PROCEEDINGS. CONSEQUENTLY, THE ASSESSI NG OFFICER HAS TREATED THE CASH DEPOSIT OF RS. 10,11,000/- IN THE SAVING B ANK ACCOUNT OF THE ASSESSEE AS UNEXPLAINED INCOME U/S. 68 OF THE ACT A ND ADDED TO HIS TOTAL INCOME. 4. THE ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT (A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFOR E US, THE LD. COUNSEL HAS SUBMITTED THAT NOTICE U/S. 148 AND OTHER NOTICE S ISSUED AT THE VILLAGE ADDRESS OF THE ASSESSEE, THE ASSESSEE COULD NOT MAK E COMPLIANCE BECAUSE ASSESSEE WAS ILLITERATE AND HIS SOURCE OF INCOME WA S FROM LABOUR AND I.T.A NO. 1748/AHD/2018 A.Y. 2010-11 PAGE NO SHRI . VIPULBHAI PURSHOTTAMBHAI SUTHAR VS. ITO 3 CARPENTERY WORK. IT IS ALSO SUBMITTED THAT INCOME OF THE ASSESSEE WAS BELOW TAXABLE LIMIT THEREFORE RETURN OF INCOME WAS NOT FI LED. THE LD. COUNSEL HAS ALSO CONTENDED THAT DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) THE ASSESSEE HAS MADE DETAILED EXPLANATION R EGARDING SOURCE OF CASH DEPOSIT IN THE SAVING BANK ACCOUNT OF THE ASSESSEE. IT WAS ALSO EXPLAINED THAT ASSESSING OFFICER HAS NOT CONSIDERED THE WITHDRAWAL SHOWN BY THE ASSESSEE AND THE ASSESSING OFFICER HAS ADDED THE TOTAL CREDI T SIDE OF THE SAVING ACCOUNT INTO TOTAL INCOME OF THE ASSESSEE. THE LD. COUNSEL HAS ALSO SUBMITTED THAT LD. CIT(A) HAS FULLY CONSIDERED THE SUBMISSION MADE AT THE TIME OF APPELLATE PROCEEDINGS. ON THE OTHER HAND, LD. DEPA RTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF LOWER AUTHORITIES. 6. HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 10,11,00 0/- REFLECTING IN THE SAVING BANK ACCOUNT OF THE ASSESSEE FOR WANT OF EXP LANATION SINCE THE ASSESSEE HAS NOT MADE COMPLIANCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS EXPLAINED THAT ASSE SSEE USED TO DERIVE INCOME FROM LABOUR AND CARPENTRY WORK AND NOT FILED RETURN OF INCOME AS HIS INCOME WAS BELOW TAXABLE LIMIT. BECAUSE OF NATURE OF WORK AND ILLITERACY THE ASSESSEE COULD NOT MAKE COMPLIANCE AT THE TIME OF ASSESSMENT PROCEEDINGS. DURING THE COURSE OF APPELLATE PROCEE DINGS BEFORE THE LD. CIT(A), THE ASSESSEE HAS MADE DETAILED SUBMISSION E XPLAINED THE NATURE OF AMOUNT DEPOSITED IN THE BANK ACCOUNT. AFTER PERUSA L OF THE MATERIAL ON RECORD, IT IS OBSERVED THAT LD. CIT(A) HAS NEITHER GIVEN DETAILED SPECIFIC REASON IN HER FINDING AS PROVIDED U/S. 250(6) NOR A NY REMAND REPORT WAS CALLED FROM THE ASSESSING OFFICER REGARDING VERIFIC ATION OF THE CLAIM MADE I.T.A NO. 1748/AHD/2018 A.Y. 2010-11 PAGE NO SHRI . VIPULBHAI PURSHOTTAMBHAI SUTHAR VS. ITO 4 BY THE ASSESSEE. THEREFORE, IN ORDER TO ADJUDICATE THE CASE ON MERIT WE CONSIDER IT APPROPRIATE TO RESTORE THE CASE TO THE FILE OF ASSESSING OFFICER FOR ADJUDICATING AFRESH AFTER VERIFICATION OF THE DETAI LS TO BE FURNISHED BY ASSESSEE AND AFTER PROVIDING DUE OPPORTUNITY TO THE ASSESSEE. THEREFORE, THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30-09-2021 SD/- SD/- (MADHUMITA ROY) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 30 /09/2021 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,