Gunvantrai Jivrajbhai Vaghela, Jetpur V. The Income Tax Officer, Ward-1(1), RAJKOT-GUJARAT

ITA 177/RJT/2013

• Counselvise Citation: 17724914 RSA 2013
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-01-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 01-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J B JHAVERI D R
• Assessee Lawyers: DR ADHIA
• Section: 69; 133A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA JM AND SHRI B. R. JAIN AM ITA NO. 177/RJT/2013 / ASSESSMENT YEAR 2001-02. GUNVANTRAI JIVRAJBHAI VAGHELA, PROP. M/S BHAVESH TRADERS, SARDAR MARKET, JETPUR PAN : AAOPV9794L ( / APPELLANT V/S THE I.T.O., WARD- 1(1), RAKJOT. / RESPONDENT ! ' #$ / ASSESSEE BY SHRI D.R. ADHIA, C.A. % ! ' #$ / REVENUE BY SHRI J.B. JHAVERI, D.R. # & ' ! ( / DATE OF HEARING 09/01/2014 ) ! ( / DATE OF PRONOUNCEMENT 10/01/2014 / ORDER PER B. R. JAIN, A. M. : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATE D 25/03/2013 OF DR. RAJEEV RANADE, LEARNED CIT(A)-II, RAJKOT CHALLE NGES THE SUSTENANCE OF ADDITION OF RS. 3,00,500/- AS UNEXPLAINED INVESTMEN T U/S 69 OF THE ACT AND RS. 2,91,092 AS DIFFERENCE IN CASH BALANCE. 2. IN ASSESSEES GROUND NO. 1, THE LD. CIT(A) UPHEL D THE ADDITION OF RS. 3,00,500/- ON THE BASIS OF ASSESSEE ADMISSION I N SURVEY PROCEEDINGS. THIS ADDITION WAS ON ACCOUNT OF UNACCOUNTED PAYMENT FOR PURCHASE OF LAND AND DEVELOPMENT EXPENSES, EVEN THOUGH, THE TRA NSACTIONS WERE NOT RELATABLE TO THE YEAR UNDER CONSIDERATION. 3. THE ASSESSEES COUNSEL CONTENDS THAT IN HIS STAT EMENT RECORDED UNDER SURVEY, HE HAS WRONGLY MENTIONED OF THE PAYME NTS IN THE F.Y. 2000-01 INSTEAD OF A.Y. 2000-01. THE AUTHORITIES BE LOW HAVE MERELY ACTED ON THE STATEMENT TAKEN DURING SURVEY AND ACTED CONT RARY TO MATERIAL ON RECORD. SUCH STATEMENTS WERE NOT BINDING ON HIM AND SUCH AS THE ITA 177RJT/2013 2 DOCUMENT EVIDENCING THE TRANSACTIONS RELATABLE TO F .Y. 1999-2000 RELEVANT TO A.Y. 2000-01 SHOWING THAT THE ASSESSEE HAD PURCH ASED THE PROPERTY AND REGISTERED THE SAME WITH THE STATE GOVERNMENT O N 16/8/1999 IS ALSO LAID ON RECORD. IT HAS, THEREFORE, BEEN CONTENDED T HAT THE ADDITION MADE IS UNWARRANTED AND UNCALLED FOR AND REQUIRES TO BE DEL ETED. 4. WE HAVE HEARD PARTIES WITH REFERENCE TO MATERIAL ON RECORD. THE LD. CIT(A) HAS CONFIRMED THE ADDITION MERELY ON THE BAS IS OF STATEMENT RECORDED DURING THE COURSE OF SURVEY AND HAS NOT AC TED ON THE RELEVANT DOCUMENTARY EVIDENCE. SECTION 133A OF THE I.T. ACT, 1961 (IN SHORT THE ACT), DOES NOT EMPOWER ANY I.T. AUTHORITY TO EXAMIN E ANY PERSON ON OATH AND THEREFORE, ANY ADMISSION MADE IN SURVEY CANNOT BY ITSELF BE MADE BASIS OF ADDITION. THIS VIEW HAS BEEN ENTERTAINED B Y THE HONBLE APEX COURT IN THE CASE OF CIT VS. S. KHADER KHAN SONS (2 013) 352 ITR 580 (SC). THE ASSESSEE HAD ALSO LAID ON RECORD THE PURC HASE DEED SHOWING THAT THE PROPERTY WAS PURCHASED ON 16/8/1999 AND NO T IN THE YEAR UNDER CONSIDERATION. SINCE THE INVESTMENT DOES NOT RELATE TO THE YEAR UNDER CONSIDERATION I.E. FINANCIAL YEAR IMMEDIATELY PRECE DING THE ASSESSMENT YEAR 2001-02 UNDER CONSIDERATION, THE ADDITION IS F OUND UNJUSTIFIED AND UNCALLED FOR. THE SAME IS, THEREFORE, DIRECTED TO B E DELETED. 5. AS REGARDS THE DIFFERENCE OF RS. 2,91,092/- ADDE D AS UNEXPLAINED BY DISREGARDING THE ASSESSEES EXPLANATION, THE ASSESS EES COUNSEL HAS CONTENDED THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME FOR A.Y. 2000- 01 ON 30/7/2001. WITH THIS RETURN, COPIES OF ACCOUN TS WERE ALSO FILED. THE DOCUMENTS LAID ON RECORD REVEAL THAT THERE WAS CLOS ING BALANCE OF RS. 2,91,092/- AS ON 31/3/2000, WHICH BECAME OPENING BA LANCE AS ON 01/4/2000. THE AUTHORITIES BELOW, THEREFORE, HAVE E RRED IN MAKING THE ADDITION, EVEN THOUGH, THE ASSESSEE HAD RECONCILED THE BALANCE. 6. ON THE OTHER HAND, THE LD. D.R. PLACED RELIANCE ON THE FINDINGS AND CONCLUSIONS OF THE AUTHORITIES BELOW. ITA 177RJT/2013 3 7. WE HAVE HEARD PARTIES WITH REFERENCE TO MATERIAL ON RECORD. PERUSAL OF DOCUMENTS LEAD ON RECORD, REVEAL AVAILABILITY OF CASH BALANCE OF RS. 2,91,092/- AS ON 31/3/2000 WITH THE ASSESSEE. THE S AME HAS BECOME OPENING BALANCE AS ON 01/4/2000 AND THUS THERE REMA INS NO DIFFERENCE IN THE OPENING BALANCE. THE LD. D.R. DID NOT BRING ANY CONTRARY MATERIAL TO OUR NOTICE IN THIS REGARD. WE, THEREFORE, DO NOT FI ND ANY FACTUAL JUSTIFICATION IN SUSTENANCE OF ADDITION OF RS. 2,91,092/- FOR DIF FERENCE IN THE OPENING CASH BALANCE. THE SAME, IS THEREFORE, DIRECTED TO B E DELETED. ACCORDINGLY GROUND NO. 2 IN APPEAL STANDS ALLOWED. 8. IN THE RESULT, APPEAL BY ASSESSEE STANDS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 10/01/2014. SD/- SD/- ( T. K. SHARMA ) ( B. R. JAI N ) #*% /JUDICIAL MEMBER $( #*% / ACCOUNTANT MEMBER *$+ ,*-/ ORDER DATE 10/01/2014 /RAJKOT *RANJAN / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT- GUNVANTRAI JIVRAJBHAI VAGHELA, JETPUR. . 2. /RESPONDENT- THE I.T.O., 1(1), RAKJOT. 3. #-2- & 3 / CIT-I, RAJKOT. 4. & 3 - / CIT (A)-II, RAJKOT. 5. 789 , , / DR, ITAT, RAJKOT 6. 9; <= / GUARD FILE. *$+ #$ / BY ORDER , TRUE COPY PRIVATE SECRETARY, , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.