Shri Bharatbhai Kantilal Sheth, Ahmedabad V. The Income tax Officer,Ward-10(3), Ahmedabad

ITA 1931/AHD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6484 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-06-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 26-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Assessee Lawyers: U S BHATI
• Keywords: Income from undisclosed sources
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND BHAVNESH SAINI, JUDICIAL MEMBER) ITA NO.1931/AHD/2008 [ASSTT. YEAR : 1999-2000] BHARATBHAI KANTILAL SHETH D-III, PUSHPAM CO-OP. HSG. SOCIETY ST. XAVIERS CORNER, NAVRANGPRUA, AHMEDABAD. VS. ITO, WARD-10(3) AHMEDABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI U.S. BHATI REVENUE BY : SHRI ALBINUS TIRKEY O R D E R PER G.D. AGARWAL, VICE-PRESIDENT : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME -TAX (APPEALS)-XVI, AHMEDABAD DATED 12.03.2008 ARISING OUT OF THE ORDER OF THE AO UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 19 61. 2. IN THIS APPEAL, THE FOLLOWING GROUNDS ARE RAISED : 1. THE ID. COMMISSIONER OF INCOME TAX (A) XVI, AHM EDABAD HAS ERRED ON LAW AND ON FACTS BY UPHOLDING THE REOP ENING OF THE ASSESSMENT U/S.147 OF THE INCOME TAX ACT, 1961 BY T HE INCOME TAX OFFICER WARD 10(3), AHMEDABAD 2. THAT THE LD COMMISSIONER OF INCOME TAX (A) HAS E RRED ON FACTS AND IN LAW BY UPHOLDING THE ADDITION OF RS.12 00000/- MADE BY THE INCOME TAX OFFICER WARD 10(3) AHMEDABAD, AS INCOME FROM UNDISCLOSED SOURCES. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE I D. CIT(A) XVI - AHMEDABAD OUGHT TO HAVE ACCEPTED THE SUBMISSI ON OF THE APPELLANT BY DELETING THE ADDITION OF RS. 1200000/- AS INCOME FROM UNDISCLOSED SOURCES, MADE BY THE INCOME TAX OFFICER WARD 10(3) , AHMEDABAD. ITA NO.1931/AHD/2008 -2- 4. IT IS THEREFORE PRAYED THAT THE ADDITION OF PS. 1200000/- U/S 68 OF THE INCOME TAX ACT, 1961 BE DIRECTED TO BE DE LETED BY UPHOLDING THE APPEAL OF THE APPELLANT. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND ANY GROUNDS OF APPEAL AT THE TIME OF OR BEFORE THE DATE OF HEARING OF THIS APPEAL. 3. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NO.1 OF THE ASSESSEE S APPEAL. ACCORDINGLY, THE SAME IS REJECTED. 4. WITH REGARD TO GROUND NO.2, 3 AND 4, IT WAS POIN TED OUT BY THE LEARNED COUNSEL THAT THE ADDITION OF RS.12.00 LAKHS WAS MADE IN THE CASE OF THE ASSESSEE ON THE ALLEGED GROUND THAT THE ASSE SSEE MADE PAYMENT OF RS.12.00 LAKHS IN CASH TO PARTH HOUSING & ESTATE DE V. PVT. LTD. FOR BOOKING OF THE SHOP. THAT SIMILAR ADDITION WAS MAD E BY THE AO IN THE CASE OF PARTH HOUSING AND ESTATE DEVELOPERS AND THA T THE ITAT IN ITA NO.1806/AHD/2007 IN THE CASE OF ITO VS. PARTH HOUSI NG & ESTATE DEVELOPERS PVT. LTD., SET ASIDE THE MATTER BACK TO THE FILE OF THE AO. HE THEREFORE SUBMITTED THAT IN ALL FAIRNESS, IN THE CA SE OF THE ASSESSEE ALSO THE MATTER REQUIRES TO BE RESTORED BACK TO THE FILE OF THE AO. 5. THE LEARNED DR ALSO FAIRLY AGREED WITH THE ABOVE SUBMISSIONS OF THE LEARNED COUNSEL. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. WE FIND THAT THE ITAT A BENCH HAS CON SIDERED THE IDENTICAL ISSUE IN THE CASE OF PARTH HOUSING & ESTATE DEVELOP ERS PVT. LTD. (SUPRA) TO WHOM THE ASSESSEE ALLEGED TO HAVE MADE THE PAYME NT FOR BOOKING OF THE FLATS. THE ITAT SET AIDE THE ISSUE BACK TO THE FILE OF THE AO WITH THE FOLLOWING OBSERVATIONS: ITA NO.1931/AHD/2008 -3- 5. WE HAVE HEARD RIVAL SUBMISSIONS, PERUSED MATERI AL ON RECORD. IN OUR CONSIDERED VIEW, THE ISSUE COULD NO T BE EXAMINED BY THE AO ON ACCOUNT OF NON-COOPERATION BY THE ASSESSE E. HE HAD FINALLY RESORTED TO MAKE EXPARTE ASSESSMENT. HE HA S NOT EXAMINED WHETHER SHRI BHARAT K.SHETH HAS ACTUALLY BOOK THE F LAT OR NOT, WHICH WAS SUBSEQUENTLY CANCELLED. THE RECORDS OF T HE SOCIETY AND/OR THE COMPANY ARE REQUIRED TO BE EXAMINED WHET HER SHRI BAHRAT K. SHETH ACTUALLY BOOKED FLATS WHICH WERE SU BSEQUENTLY CANCELLED. THE AO WILL EXAMINE THE ISSUE AFRESH, A FTER TAKING INTO CONSIDERATION THE EXPLANATION FURNISHED BY THE ASSE SSEE BEFORE THE CIT(A). IN OUR VIEW, THE REVENUE HA SNOT BEEN PROV IDED OPPORTUNITY TO EXAMINE WHETHER SHRI BHARAT K. SHETH HAD ACTUALLY BOOKED FLATS WHICH WERE SUBSEQUENTLY CANCELLED. IF THE FLATS ARE ACTUALLY BOOKED BY SHRI BHARAT K. SHETH, THEN HIS S TATEMENT TO HE CONTRARY WOULD BE WRONG. IN ANY CASE, THE AO WILL COLLECT ALL NECESSARY MATERIAL TO DECIDE THE ISSUE AFRESH AS TO THE TAXABILITY OF A SUM OF RS.12 LAKHS PAID BY THE COMPANY TO SHRI BH ARAT SHETH. SINCE THE ISSUE IS INTER-RELATED, WE ALSO DEEM IT P ROPER TO SET ASIDE THE ORDER OF THE AUTHORITIES BELOW IN THE CASE OF THE A SSESSEE AND RESTORE THE MATTER BACK TO THE FILE OF THE AO WITH THE DIRECTIO N TO RE-ADJUDICATE THE SAME KEEPING IN VIEW THE OBSERVATION OF THE ITAT IN THE CASE OF THE PARTH HOUSING & ESTATE DEVELOPERS PVT. LTD. (SUPRA). 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON 20 TH JUNE, 2011 SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 20-06-2011 C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT