Shri Chetan Dineshchandra Modi, Valsad V. The Income tax Officer,Ward-1, Valsad

ITA 204/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9173 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-08-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 22-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S SANDHU
• Assessee Lawyers: J P SHAH
• Keywords: Additional evidence
• Section: 68; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'D' (BEFORE SHRI MAHAVIR SINGH AND D C AGRAWAL) ITA NOS.204 AND 205/AHD/2009 (ASSESSMENT YEARS: 2004-05 AND 2005-06) SHRI CHETAN DINESHCHANDRA MODI, PROP. OF MODI FINANCIAL SERVICES, 2, AVABAI COMPLEX, 1 ST FLOOR, HALAR ROAD, VALSAD V/S THE INCOME-TAX OFFICER, WARD-1, VALSAD (APPELLANT) (RESPONDENT) PAN NO.: ABBPM 1667 M APPELLANT BY :- SHRI J P SHAH RESPONDENT BY:- SHRI B S SANDHU, DR O R D E R PER MAHAVIR SINGH (JUDICIAL MEMBER) : THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST TWO SEPARATE ORD ERS PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) [THE CIT( A) FOR SHORT), DATED 25-10-2008 AND 24-10-2008 IN APPEAL N OS. CIT(A)/VLS/483/07-08 AND CIT(A)/VLS/482/07-08 FOR ASSESSMENT YEARS (AY) 2004-05 AND 2005-06 RESPECTIV ELY. 2 THE BRIEF FACTS OF THE CASE ARE THAT A RETURN OF INCOME SHOWING TOTAL INCOME OF RS.2,75,778/- WAS FILED ON 18-03-2005. THE RETURN WAS PROCESSED ON 23-03-2005 U/S 14(1) OF THE INCOME- TAX ACT, 1961 [THE ACT FOR SHORT]. THE CASE WAS R EOPENED AND NOTICE U/S 148 DATED 09-02-2007 WAS ISSUED AND SERV ED UPON THE ASSESSEE ON 21-02-2007. DURING THE COURSE OF ASSESS MENT PROCEEDINGS THE ASSESSING OFFICER REQUIRED THE ASSE SSEE TO FILE 2 THE DETAILS. THE ASSESSEE FILED THE REQUIRED DETAIL S. SUBSEQUENTLY, THE ASSESSING OFFICER RECEIVED THE INFORMATION FROM THE AXIS BANK LTD., VALSAD ON 28-12-2007. ON THE BASIS OF TH IS INFORMATION, THE ASSESSING OFFICER MADE CERTAIN AD DITIONS U/S 68 OF THE ACT. 3 AT THE OUTSET, THE LEARNED AR SUBMITTED THAT THE INFORMATION FROM THE BANK WAS RECEIVED ON 28-12-200 7 AND THE ASSESSMENT WAS COMPLETED ON 31-12-2007 AND THE TIME WAS TOO SHORT TO GIVE IN ANY REASON / EXPLANATION IN THIS R EGARD. THE ASSESSING OFFICER, WITHOUT GIVING ANY OPPORTUNITY O F BEING HEARD TO THE ASSESSEE, MADE CERTAIN ADDITIONS. BEFORE THE CIT(A) ALSO IT WAS EXPLAINED THAT COPY OF THE IMPUGNED BANK ACCOUN T OF AXIS BANK WAS GIVEN TO THE ASSESSEE ON 29-12-2007 AT 2.0 0 P.M. ONLY AND THE RELEVANT ISSUE OF DEPOSITS BEING MADE IN TH E SAID BANK ACCOUNT WAS ALSO RAISED AT THAT TIME ONLY; THE ASSE SSEE COULD NOT SUBMIT THE CONFIRMATIONS WHICH WERE CONCLUDED ON 31 -12-2007. IT WAS ALSO SUBMITTED THAT 30-12-2007 WAS SUNDAY AN D THE RELEVANT ORDER OF ASSESSMENT WAS PASSED ON 31-12-20 07 AND THEREFORE, NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO CLARIFY THE MATTER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER, THE CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSIN G OFFICER. IN VIEW OF THESE FACTS, IT WAS SUBMITTED THAT THE MATT ER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR R E-CONSIDERATION AFRESH. THE LEARNED DR, ON THE OTHER HAND, SUPPORTE D THE ORDERS OF THE AUTHORITIES BELOW. 4 WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. WE HAVE ALSO GONE THROUGH THE ORDER OF THE CIT(A). WE NOTED THAT THE CIT(A) HAS, WITHOUT 3 CONSIDERING THE EXPLANATION OF THE ASSESSEE, CONFIR MED THE ADDITION, BY OBSERVING AS UNDER:- 7.3 I HAVE CONSIDERED THE CONTENTIONS OF THE APPEL LANT AS WELL AS THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESS MENT ORDER. THE FACTS REMAIN THAT DURING THE COURSE OF APPELLATE PR OCEEDINGS ONLY, THE AR FILED COPIES OF THE CONFIRMATION OBTAINED FROM B ANK STATING THE DETAILS OF DATE OF DEPOSIT, FDR NO., AMOUNT OF DEPO SIT, MATURITY DATE AND MATURITY AMOUNT. SINCE THESE EVIDENCES WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSME NT PROCEEDINGS, THE SAME CAN NOT BE ADMITTED. THE PROVISIONS CONTAI NED IN RULE 46-A ARE QUITE RELEVANT AS THE APPELLANT SHALL NOT BE EN TITLED TO PRODUCE BEFORE THE APPELLATE AUTHORITY ANY EVIDENCE WHICH W AS NOT PRODUCED BY HIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER. IN THE INSTANT CASE, THE APPELLA NT HAS NEITHER BROUGHT OUT ON RECORD TO MY SATISFACTION THAT HE WA S PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE AFORESAID EVIDE NCE BEFORE THE ASSESSING OFFICER NOR HE HAS PROVED THAT THE ASSESS ING OFFICER DID NOT GIVE PROPER OPPORTUNITY TO THE APPELLANT FOR ADDUCI NG THE EVIDENCE BEFORE HIM. UNDER THESE TYPICAL CIRCUMSTANCES, I AM PREVENTED BY LAW TO ADMIT THE ADDITIONAL EVIDENCE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE ME. EVEN OTHERWISE, THE APPELLAN T HAS FAILED TO ESTABLISH THE SOURCE OF THE BANK DEPOSIT BEFORE THE ASSESSING OFFICER AND THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY MA DE THE ADDITION OF RS.1,61,506/-. THE APPELLANTS GROUND NO.3 IS, THER EFORE, DISMISSED. WE FIND THAT THE ASSESSEE FILED THE REQUIRED DETAIL S. SUBSEQUENTLY, THE ASSESSING OFFICER RECEIVED THE IN FORMATION FROM THE AXIS BANK LTD., VALSAD ON 28-12-2007, ON T HE BASIS OF WHICH, THE ASSESSING OFFICER MADE CERTAIN ADDITIONS U/S 68 OF THE ACT. BUT WE FIND THAT THE COPY OF THE IMPUGNED BANK ACCOUNT OF AXIS BANK WAS GIVEN TO THE ASSESSEE ON 29-12-2007 A T 2.00 P.M. ONLY AND THE RELEVANT ISSUE OF DEPOSITS BEING MADE IN THE SAID BANK ACCOUNT WAS ALSO RAISED AT THAT TIME ONLY; THE ASSESSEE COULD NOT SUBMIT THE CONFIRMATIONS WHICH WERE CONCL UDED ON 31- 12-2007. IT IS TRUE THAT 30-12-2007 WAS SUNDAY AND THE RELEVANT ORDER OF ASSESSMENT WAS PASSED ON 31-12-2007. WE AR E, 4 THEREFORE, OF THE VIEW THAT NO PROPER OPPORTUNITY W AS GIVEN TO THE ASSESSEE TO CLARIFY THE MATTER DURING THE COURS E OF ASSESSMENT PROCEEDINGS. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR-PLAY TO BOTH THE PARTIES, WE SET-ASIDE THE ORDER OF THE CIT (A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WIT H THE DIRECTION THAT THE ASSESSING OFFICER SHALL RE-EXAMINE THE ISS UE AFRESH AND PASS AN ASSESSMENT ORDER DE NOVO. THE ASSESSEE IS A LSO DIRECTED TO COOPERATE THE ASSESSING OFFICER BY FURNISHING TH E RELEVANT MATERIAL / DOCUMENTS AS REQUIRED BY THE ASSESSING O FFICER. 5 IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04-09-2009 SD/- SD/- (D C AGRAWAL) ACCOUNTANT MEMBER (MAHAVIR SINGH) JUDICIAL MEMBER DATE : 04-09-2009 COPY OF THE ORDER FORWARDED TO : 1. SHRI CHETAN DINESHCHANDRA MODI, PROP. OF MODI FINANCIAL SERVICES, 2, AVABAI COMPLEX, 1 ST FLOOR, HALAR ROAD, VALSAD 2. THE ITO, WARD-1, VALSAD 3. THE CIT CONCERNED 4. THE CIT(A)-VALSAD 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. R/AR, ITAT, AHMEDABAD