Shri Kanubhai Motobhai Patel, Baroda V. The Income tax Officer,Ward-8(1), Baroda

ITA 1848/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9292 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 03-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: CHANDRESH I SHAH
• Keywords: Opportunity of being heard
• Section: 131; 68

Judgement Text

IN THE INCOME_TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI H.L.KARWA AND SHRI A.N.PAHUJA ITA NO.1848/AHD/2009 (ASSESSMENT YEAR : 2005-06) KANUBHAI MOTOBHAI PATEL 9/A-NARMADA NAGAR-2 SOCO. VADSAR ROAD, MANJALPUR, BARODA. VS. INCOME TAX OFFICER WARD 8(1) BARODA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI CHANDRESH I. SHAH, A.R. RESPONDENT BY : SHRI C.K.MISHRA, D.R. ( (( ( )/ )/)/ )/ ORDER PER H.L.KARWA, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)- VI, BARODA DATED 12.3.2009 RELATING TO ASSESSMENT YEAR 2005-06. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE IN TH IS APPEAL READS AS UNDER: THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL)-VI HAS ERRED IN CONFIRMING THE STAND TAKEN BY THE LEARNED ASSESSING OFFICE R OF MAKING THE ADDITION TO THE DECLARED RETURNED INCOME, THE SUM OF RS.2,00,000/- UNDER SECTION 68 OF THE INCOME TAX ACT, W HEN THE ASSESSEE HAS RECEIVED BACK THE MONEY ADVANCED TO MR. NARESH ARVINDBHAI DESAI WRONGLY TREATING THE SAME AS DEPOSIT. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS AN INDIVIDUAL AND ASSESSMENT YEAR INVOLVED IS 2005-06. ON VERIFICATION OF THE BANK STATEMENT OF THE ASSESSEE, THE ASSESSING OFFICER FOUND T HAT THERE WERE SOME OTHER CREDIT ENTRIES OTHER THAN SALARY AND RETIREMENT BENEFITS. THE ASSESSING OFFICER ASKED THE ASSESSEE TO GIVE EXPLANATION IN RESPECT OF 2 THESE CREDIT ENTRIES WITH SOURCE OF INVESTMENT THEREOF. AFTER CONSIDERING THE ASSESSEES REPLY, THE ASSESSING OFFICER MADE TOTAL ADDITI ON OF RS.10,00,279/- U/S 68 OF THE ACT WHICH INCLUDED A SUM OF RS. 2 LACS RECEIVED FROM SHRI NARESHBHAI ARBINDBHAI DESAI. 4. ON APPEAL, THE CIT(A) ALLOWED PARTIAL RELIEF TO THE ASSESSEE. THE CIT(A) OUT OF TOTAL ADDITION OF RS.10,00,279/- CONFIR MED THE ADDITION OF RS.4,50,000/- WHICH INCLUDED THE SUM OF RS. 2 LACS RECE IVED FROM SHRI NARESHBHAI A. DESAI AND, HENCE THE ASSESSEE IS IN APPEAL AG AINST THE ADDITION OF RS.2 LACS CONFIRMED BY THE CIT(A). 5. BEFORE US, SHRI CHANDRESH I SHAH, THE LEARNED COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE CIT(A) HAS CONFIRMED THE ADDI TION OF RS. 2 LACS ON THE GROUND THAT THE CREDITOR SHRI NARESHBHAI AR BINDBHAI DESAI DID NOT APPEAR BEFORE THE ASSESSING OFFICER FOR VERIFICATION. SHRI CHANDRESH I SHAH, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD SUPPLIED COPY OF BANK STATEMENT SHOWING BANK ACCOUNT NO., CHEQUE NO., PAN AND COPY OF ACKNOWLEDGMENT OF RETURN OF INCOM E OF SHRI NARESHBHAI ARBINDBHAI DESAI WHO WAS THE RECIPIENT OF TH E LOAN AND WHO RETURNED THE LOAN TO THE ASSESSEE. HE, THEREFORE, SUBMITT ED THAT THE TRANSACTIONS OF GIVING THE LOAN AND RETURNING THE LOAN ENTERED INTO, WERE BY ACCOUNT PAYEE CHEQUE AND THROUGH BANK ACCOUNT ONLY. HE, THEREFORE, SUBMITTED THAT THE AMOUNT OF RS.2 LACS MAY BE DELETED. SHRI CHANDRESH I SHAH, THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED T HAT IN CASE OF DOUBT, THE ASSESSING OFFICER SHOULD HAVE EXAMINED THE CRED ITOR. HE, THEREFORE, SUBMITTED THAT THE ADDITION MAY BE DELETE D. 6. ON THE OTHER HAND, THE LD. D.R. STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 3 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALSO P ERUSED THE MATERIALS AVAILABLE ON RECORD. AFTER CONSIDERING THE E NTIRE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE DIRECT THE ASSESSING OFFICE R TO EXAMINE THE CREDITOR AS PER THE PROVISIONS OF LAW. IN O UR VIEW, IF THE ASSESSING OFFICER DOES NOT BELIEVE THE CONTENTS OF ALL THE DOCUMENTARY EVIDENCE SUBMITTED BY THE ASSESSEE, THEN IT WAS APPROPRIAT E FOR THE ASSESSING OFFICER TO SUMMON THE CREDITOR TO EXAMINE THE VE RACITY OF THE DOCUMENTS SUBMITTED BY THE ASSESSEE AND THEN TO DECIDE ABO UT THE GENUINENESS OF THE TRANSACTION. KEEPING IN VIEW THE INT EREST OF JUSTICE, IT WOULD BE PROPER AND JUSTIFIED TO RESTORE THIS MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION THAT THE ASSESSING OFFICER SHOULD EXAMINE THE CREDITOR AND AFTER EXAMINING THE CREDITOR HE SHOULD DECIDE THE ASSESSABILITY OR OTHERWISE OF THE SAID SUM AS THE INCOM E OF THE ASSESSEE AS PER THE PROVISIONS OF LAW. WE ALSO DIRECT THE ASSE SSING OFFICER TO SUMMON THE DEPOSITOR U/S 131 OF THE ACT AND TO DECIDE THE ISSUE BEFORE HIM. IN THE CASE OF CIT V. KAMDHENU VYAPAR C O. LTD.) (2003) 263 ITR 692 (CAL.), THE HONBLE CALCUTTA HIGH COURT HA S HELD THAT IT IS INCUMBENT ON THE ASSESSING OFFICER TO ISSUE SUCH SUMMON IN ORD ER TO ENABLE THE ASSESSEE TO AVAIL OF THE OPPORTUNITY PROVIDE D BY THE STATUTE, OTHERWISE THE ASSESSING OFFICER WOULD BE DENYING THE OPP ORTUNITY PROVIDED TO THE ASSESSEE, IN BUILT IN SEC. 68 OF THE ACT . THE HONBLE CALCUTTA HIGH COURT HAS ALSO HELD THAT AFTER ISSUANCE OF S UCH SUMMONS, THOSE WHICH ARE NOT RESPONDED OR RETURNED WITHOUT SERVI CE, THE ASSESSING OFFICER IS FREE TO TAKE HIS OWN DECISION AS HE MAY DEEM F IT AND PROPER. THUS, CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE P RESENT CASE, AND ALSO KEEPING IN VIEW THE RATIO LAID DOWN BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF KAMDHENU VYAPAR CO. (SUPRA), WE SE T ASIDE THE ORDER OF CIT(A) AND REMAND THE MATTER BACK TO THE F ILE OF THE ASSESSING OFFICER FOR ISSUING SUMMONS U/S 131 OF THE ACT TO THE CRED ITOR AND TO RECORD THE EVIDENCE IN ACCORDANCE WITH LAW. THE ASSESSING OF FICER SHOULD 4 DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW KEEPING IN VIEW THE RATIO LAID DOWN BY THE HONBLE CALCUTTA HIGH COURT AND ALSO AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. FOR STATISTICAL PURPOSES, THE APPEAL IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 03.9. 2009. SD/- (A.N.PAHUJA) ACCOUNTANT MEMBER SD/- (H.L.KARWA) JUDICIAL MEMBER AHMEDABAD, DATED: 03.9.2009 PSP* COPY TO : (1) THE ASSESSEE (2) THE ASSESSING OFFICER (3) THE CIT(A) CONCERNED, (4) THE CIT, CONCERNED, (5) THE DR, ITAT, AHMEDABAD, (6) GUARD FILE. BY ORDER ASSTT. REGISTRAR / D EPUTY REGISTRAR ITAT, AHMEDABAD BENCHES AHMEDABAD.