Shri Shambhubhai Kanjibhai Vaghasia, Surat V. The Income tax Officer,Ward-8(4), Surat

ITA 1931/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6025 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-07-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 12-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Unexplained cash credit; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND T.K. SHARMA, JUDICIAL MEMBER) ITA NO.1931/AHD/2009 [ASSTT. YEAR : 2005-2006] SHAMBHUBHAI KANJIBHAI VAGHASIA 32, KISHOR PARK SOCIETY GHOD DOD ROAD SURAT. PAN: ABOPV 9141 N VS. ITO, WARD-8(4) SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI HARDIK VORA REVENUE BY : SHRI B.L. YADAV 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)-V, SURAT DATED 24.12.2008 ARISING OUT OF THE ORDER OF THE AO UNDER SECTION 144OF THE INCOME TAX ACT, 1961. 2. IN THIS APPEAL OF THE ASSESSEE, THE FOLLOWING GR OUNDS WERE RAISED: 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN PASSING EX-PARTE ORDER U/S. 144 OF THE ACT ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FOR NOT FURNISHING DE TAILS IN THE COURSE OF APPELLATE PROCEEDINGS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED CIT (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF R S.4,10,250/- BY TREATING AGRICULTURE INCOME AS INCOME FROM OTHER SO URCES. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED CIT (APPEALS) HAS ERRED IN CON FIRMING THE ACTION OF ASSESSING OFFICER IN MAKING ADDITION OF 5 ,15,200/- ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. ITA NO.1931/AHD/2009 -2- 4. IT IS THEREFORE PRAYED THAT ABOVE ADDITIONS MAD E BY ASSESSING OFFICER AND CONFIRMED BY CIT (APPEALS) MA Y PLEASE BE DELETED. 5. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ANY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE AP PEAL. 3. AT THE TIME OF HEARING BEFORE US, IT WAS STATED BY THE LEARNED COUNSEL THAT THE ONLY SOURCE OF INCOME OF THE ASSES SEE IS AGRICULTURAL INCOME AND DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD FILED THE RETURN DISCLOSING THE TOTAL INCOME AT NIL AND THE A GRICULTURAL INCOME OF RS.4,10,250/-. THAT UNFORTUNATELY, DURING THE ASSE SSMENT PROCEEDINGS, THE ASSESSEE COULD NOT PRODUCE NECESSARY DETAILS. HOWEVER, THE AO MADE UNCALLED FOR AND UNREASONABLE HEAVY ADDITIONS. ENT IRE AGRICULTURAL INCOME WAS TREATED BY THE AO AS INCOME FROM UNDISCL OSED SOURCE. MOREOVER, THE ENTIRE CREDIT BALANCE IN THE BALANCE SHEET OF THE ASSESSEE WAS TREATED AS UNEXPLAINED CASH CREDIT UNDER SECTIO N 68. THUS, AS AGAINST THE NIL INCOME, ASSESSMENT WAS MADE AT THE HUGE INC OME OF RS.9,25,450/-. HE HAS STATED THAT THERE WAS NO JUS TIFICATION EITHER FOR TREATING THE AGRICULTURAL INCOME AS INCOME FROM UND ISCLOSED SOURCES OR FROM TREATING THE CREDIT BALANCE AS UNEXPLAINED. T HE LEARNED COUNSEL STATED THAT IF ONE MORE OPPORTUNITY IS ALLOWED, THE ASSESSEE WILL PRODUCE ALL THE RELEVANT DETAILS IN SUPPORT OF AGRICULTURAL INCOME AS WELL AS CREDIT IN THE BALANCE SHEET. THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI HARDIK VORA WHO APPEARED AT THE TIME OF HEARING BEFORE US, UNDERTOOK THE RESPONSIBILITY OF PRODUCING ALL THE RELEVANT DETAIL S. 4. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDERS OF THE AUTHORITIES BELOW AND HE HAS STATED THAT ADEQUATE O PPORTUNITY WAS ALLOWED ITA NO.1931/AHD/2009 -3- BY THE AO THEREFORE THERE WAS NO JUSTIFICATION FOR SETTING ASIDE THE MATTER BACK TO THE FILE OF THE AO. HE FURTHER STATED THAT IF AT ALL THE ASSESSMENT IS SET ASIDE, THEN IT SHOULD BE SET ASIDE IN TOTO AND THE AO SHOULD BE PERMITTED TO MAKE THE ASSESSMENT DE NOVO . 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. AFTER CONSI DERING THE ARGUMENTS OF BOTH THE SIDES AND THE FACTS OF THE CASE, IN OUR OP INION, IT WOULD MEET ENDS OF JUSTICE, IF THE ORDER OF THE AUTHORITIES BELOW A RE SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FILE OF THE AO. ACCORDINGL Y, WE SET ASIDE THE ASSESSMENT ORDER AND RESTORE THE SAME TO THE FILE O F THE AO. WE DIRECT HIM TO MAKE THE ASSESSMENT DE NOVO AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO PRODUCE ALL THE NECESSARY DETAILS AS MAY BE CALLED FOR BY THE A O AND THEREAFTER THE AO WILL MAKE ASSESSMENT AFRESH IN ACCORDANCE WITH L AW. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 26 TH JULY, 2011 SD/- SD/- (T.K. SHARMA) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 26-07-2011 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