The ACIT,(OSD)Circle-9, Ahmedabad V. M/s Shree Parshwanath Corporation, Ahmedabad

ITA 1903/AHD/2010

• Counselvise Citation: 190320514 RSA 2010
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-08-2012
• Assessment Year: 1998-1999
• Appeal Filed On: 02-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M MATHIVANAN
• Assessee Lawyers: M G PATEL
• Keywords: Additional evidence

Judgement Text

, , , , B , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .% $% % $% % $% % $%, , , , &' ( &' ( &' ( &' ( & ' & ' & ' & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER) ITA.NO.1220/AHD/2010 [ASSTT. YEAR : 1998-1999] M/S.SHREE PARSHWANATH CORPORATION 50-HARSIDH CHAMBERS ASHRAM ROAD, AHMEDABAD. PAN : AADFS 3093 C /VS. DCIT (OSD) CIR.9, AHMEDABAD. ITA.NO.1903/AHD/2010 [ASSTT. YEAR : 1998-1999] DCIT (OSD) CIR.9, AHMEDABAD. /VS. M/S.SHREE PARSHWANATH CORPORATION 50-HARSIDH CHAMBERS ASHRAM ROAD, AHMEDABAD. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ./ 0 1 &/ ASSESSEE BY : SHRI M.G. PATEL ( 0 1 &/ REVENUE BY : SHRI M. MATHIVANAN 3 0 /4'/ DATE OF HEARING : 9 TH AUGUST, 2012 5%6 0 /4'/ DATE OF PRONOUNCEMENT : 07-09-2012 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE CROSS APPEALS BY THE ASSESSEE AND THE REVENUE ARE DIRECTED AGAINST THE O RDER OF THE CIT(A)- XV, AHMEDABAD FOR THE ASSESSMENT YEAR 1998-1999. THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER. ITA NO.1220/AHD/2010 (ASSESSEES APPEAL) ITA.NO.1220 AND 1903/AHD/2010 -2- 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: 1. THE LD. CIT(A) HAS ERRED IN LAW BY NOT ADMITTIN G ADDITIONAL EVIDENCES PRODUCED BY THE APPELLANT VIDE LETTER DAT ED 22/03/2010 BY WAY OF CONFIRMATORY LETTERS IN RESPECT OF UNSECURED LOAN AMOUNTING TO RS.16,24,622/- 2. THE LD.CIT(A) HAS ERRED IN NOT CONSIDERING THE R EASONS SUBMITTED BY THE APPELLANT IN THE LETTER DATED 22/03/2010 EXP LAINING THEREIN THAT THE APPELLANT HAS BEEN PREVENTED BY SUFFICIENT CAUS E FROM PRODUCING THE CONFIRMATIONS AT THE TIME OF ASSESSMENT. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS WRITTEN AN APPLICATION DATED 22.3.2010 SUBMITTING T HE CONFIRMATION OF DEPOSITORS AMOUNTING TO RS.16.24 LAKHS UNDER RULE 4 6A OF THE I.T.RULES, 1962 WITH EXPLANATION FOR SUBMITTING THE SAME BEFORE THE CIT(A). HE SUBMITTED THAT THE SAME WERE NOT ADMITTED AS ADDITIONAL EVIDENCE B Y THE CIT(A) FOR NO VALID REASON. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL OF THE ASSESSEE. HE SUBMITTED THAT THERE IS NO VALID REASON FOR NOT SUBMITTING THE EVIDENCES IN THE FORM OF CONFIRMATION FROM THE DEPO SITORS BEFORE THE AO. HE RELIED ON THE ORDER OF THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO APPLICATION OF THE ASSESSEE DATED 22.3.2010 FILED BEFORE THE CIT(A). WE FIND THAT THE ASSESSEE HAS S ATISFACTORILY EXPLAINED THE REASONS FOR NOT SUBMITTING THE CONFIRMATION OF DEPO SITORS AMOUNTING TO RS.16.24 LAKHS BEFORE THE AO AND FOR SUBMITTING BEF ORE THE CIT(A) FOR THE FIRST TIME. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT THE ADDITIONAL EVIDENCE SOUGHT TO BE FILED BY THE ASSESSEE SHOULD HAVE BEEN ADMITTED BY THE CIT(A) UNDER RULE 46A OF THE I.T.RULES. IN THIS VI EW OF THE MATTER, WE SET ASIDE THE ORDER OF THE CIT(A) BACK TO HIS FILE WITH DIRECTION TO ADMIT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AND DECI DE THE ISSUE BEFORE HIM ON MERIT IN ACCORDANCE WITH LAW AFTER ALLOWING DUE OPP ORTUNITY OF HEARING TO BOTH THE PARTIES. WE DIRECT ACCORDINGLY. ITA.NO.1220 AND 1903/AHD/2010 -3- ITA NO.1903/AHD/2010 (REVENUES APPEAL) 5. THE GROUND NO.1 OF THE REVENUES APPEAL IS AS UN DER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.10,00,000/- MADE BY THE AO FOR UNEXP LAINED CREDIT IN THE NAME OF HARIRAJ PRABHU CO-OP. SOCIETY. 6. THE LEARNED DR SUBMITTED THAT THE ASSESSEE HAS N OT PROVED THE CREDIT-WORTHINESS OF THE CREDITOR SOCIETY VIZ. HARI RAJ PRABHU CO-OP. SOCIETY (HPCS FOR SHORT) AND HAS NOT GIVEN ANY CO NFIRMATION OR PAN OF THE CREDITOR SOCIETY. THE LEARNED COUNSEL FOR T HE ASSESSEE HAS OPPOSED THE SUBMISSIONS OF THE LEARNED DR. HE SUBMITTED TH AT THE ASSESSEE HAS SUBMITTED COPY OF THE ACCOUNT OF THE CREDITOR-SOCIE TY AS APPEARING IN ITS BOOKS OF ACCOUNTS ALONG WITH COPY OF THE PASS-BOOK OF THE CREDITOR SOCIETY, A COPY OF WHICH HAS BEEN PLACED IN THE COM PILATION BEFORE THE TRIBUNAL. HE HAS RELIED ON THE ORDER OF THE CIT(A) . 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO COPIES OF VARIOUS DOCUMENTS FILED IN THE COMPILATION BY THE ASSESSEE. WE FIND THAT THE ASSESSEE HAS MERELY FILED THE BANK ACCOUNT COPY OF THE CREDITOR SOCIETY VIZ. HPCS. THE SOCIETY COULD NOT FILE EVEN CONFIRMATION LETTER FRO M THE CREDITOR SOCIETY OR THE PAN THEREOF, AND THEREFORE THE CREDIT-WORTHINES S OF THE CREDITOR PARTY HAS NOT BEEN WHOLLY EXPLAINED BY THE ASSESSEE. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT IT SHALL BE IN THE INTEREST OF THE JUSTICE TO RESTORE THE ISSUE IN THE GROUND NO.1 OF THE REVENUE TO THE FILE OF THE CIT(A) WHO SHALL DECIDE THE ISSUE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER ALLOWING DUE OPP ORTUNITY OF HEARING TO BOTH PARTIES. WE ALSO DIRECT THAT THE CIT(A) TO AD MIT ANY EVIDENCES ITA.NO.1220 AND 1903/AHD/2010 -4- WHICH MAY BE FILED BY THE ASSESSEE IN SUPPORT OF IT S CASE BEFORE HIM, AS AN ADDITIONAL EVIDENCE, BEFORE DECIDING THE ISSUE. WE DIRECT ACCORDINGLY. 8. THE GROUND NO.2 OF THE REVENUES APPEAL IS AS UN DER: 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.15,00,000/- MADE BY THE AO FOR UNEXP LAINED CREDIT IN THE NAME OF POSUN CO-OP. SOCIETY. 9. THE LEARNED DR SUBMITTED THAT THE ASSESSEE COULD NOT PROVE THE CREDIT-WORTHINESS OF THE CREDITOR PARTY, M/S.POSUN CO-OP.SOCIETY (PCS FOR SHORT), AND THEREFORE ADDITION HAS BEEN WRONGLY DELETED BY THE CIT(A). HE RELIED ON THE ORDER OF THE AO. THE LEA RNED COUNSEL OF THE ASSESSEE SUBMITTED THAT IN CASE OF THIS CREDITOR, PCS, THE ASSESSEE HAS FILED THEIR CONFIRMATIONS ALONG WITH BANK ACCOUNT C OPY AND THE CREDITOR SOCIETY HAS ALSO GIVEN THEIR PAN, AND THEREFORE THE IDENTITY, CREDIT- WORTHINESS AND GENUINENESS OF THE TRANSACTION IS PR OVED IN THIS CASE. 10. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE P ERUSED THE ORDERS OF THE AO AND CIT(A) AND ALSO COPIES OF VARIOUS DOC UMENTS FILED IN THE COMPILATION BY THE ASSESSEE BEFORE US. WE FIND THA T THE ASSESSEE HAS FILED THE CONFIRMATION FROM PCS ALONG WITH THEIR COPY O F THE BANK ACCOUNT AND THEIR PAN BEFORE THE AO, A COPY OF WHICH HAS BE EN FILED IN THE COMPILATION BEFORE US. THERE IS NO MATERIAL BROUGH T ON RECORD ON BEHALF OF THE REVENUE TO DOUBT THE CONFIRMATION AND EVIDEN CE FILED BY THE ASSESSEE IN SUPPORT OF ITS CASE. THE OBSERVATION O F THE AO WHILE MAKING THE IMPUGNED ADDITION THAT THE PAN OF PCS IS VERY OLD ONE AND CANNOT BE VERIFIED IS NOT SUSTAINABLE. THE PAN IS CLEARLY PERMANENT IN NATURE AND IT WAS FOR THE DEPARTMENT TO LOCATE THE ASSESSM ENT RECORD OF THE CREDITOR SOCIETY, IF SO REQUIRED IN THE FACTS OF TH E CASE. IN THESE FACTS OF THE CASE, WE FIND THAT THERE IS NO MISTAKE IN THE O RDER OF THE CIT(A) IN ITA.NO.1220 AND 1903/AHD/2010 -5- HOLDING THAT THE ASSESSEE HAS FURNISHED SUFFICIENT EVIDENCES WITH RESPECT TO DEPOSIT RECEIPT FROM THE SOCIETY AND IN DIRECTIN G THE AO TO DELETE THE ADDITION, AND ACCORDINGLY THE ORDER OF THE CIT(A) O N THIS ISSUE IS CONFIRMED AND THE GROUND NO.2 OF THE REVENUES APPE AL IS DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE AND THE APPEAL OF THE REVENUE IS PARTLY ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( #.% $% /A.MOHAN ALANKAMONY) &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD