The ITO, Ward-9(1), Surat V. Shri Babubhai Ambalal Gabani(HUF), Surat

ITA 2076/AHD/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9345 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-11-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 30-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M MATHIVANAM
• Section: 144

Judgement Text

IN THE INCOM`E TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND BHAVNESH SAINI, JUDICIAL MEMBER) ITA NO.2076/AHD/2008 [ASSTT. YEAR : 2004-2005] ITO, WARD-9(1) SURAT. VS. SHRI BABUBHAI AMBABHAI GABANI (HUF) A/111, PATEL IND. ESTATE BAMBAWADI, VASTA DEVID ROAD, SURAT. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI M. MATHIVANAM ASSESSEE BY : WRITTEN SUBMISSIONS O R D E R PER G.D. AGARWAL, VICE-PRESIDENT : THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-V, SURAT DATED 19.03.2008 ARISING OUT OF THE ORDER OF THE ASSESSIN G OFFICER PASSED UNDER SECTION 144 OF THE I.T. ACT, 1961. 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REV ENUE READS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAD, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.7,8 7,000/- MADE BY AO ON ACCOUNT OF UNEXPLAINED UTILISTION OF CAPITAL VIDE A SSESSMENT ORDER U/S.144 OF THE I.T.ACT. DATED 30.10.2006 3. WE HAVE HEARD THE LEARNED DR AND PERUSED THE WRI TTEN SUBMISSIONS FURNISHED BY THE ASSESSEES COUNSEL, SHRI R.N.VEPARI. THE AO MADE THE ADDITION OF RS.7,87,000/- ON THE GROUND OF UTILISATION OF THE A SSESSEES CAPITAL. HOWEVER, THE CIT(A) NOTICED THAT IN THE A.Y.2001-2002 WHEN THE A SSESSEE HAD INTRODUCED THE CAPITAL IN HIS BOOKS OF ACCOUNTS AMOUNTING TO RS.8, 74,992/-, THE ADDITION WAS MADE THEREFOR. THE CIT(A) HAD ALSO SUSTAINED THE ADDITI ON IN A.Y.2001-2002. HE THEREFORE DELETED THE ADDITION IN THE YEAR UNDER CONSIDERATIO N ON THE GROUND THAT WHEN THE ADDITION HAS ALREADY BEEN SUSTAINED IN THE YEAR OF INTRODUCTION OF CAPITAL, THE ADDITION CANNOT BE MADE AGAIN BY UTILISATION OF SUCH CAPITAL . IN THE WRITTEN SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE, STATED AS UNDER: ITA NO.2076/AHD/2008 -2- 2. THE LD.CIT(A) DELETED THE ABOVE ADDITION AS PER PAGE 2 OF HIS ORDER ON THE GROUND THAT WHEN CAPITAL OF RS.8,74,992/- WAS A DDED AS UNEXPLAINED CAPITAL IN A.Y.2001-02, THE SAME AMOUNT WHEN UTILIS ED CANNOT BE AGAIN ADDED. IN THIS REGARD THE LD.CIT(A) RELIED ON THE SUBMISSI ON MADE BY LETTER DATED 05.09.2007 (PAGE 1 OF PAPER BOOK) AND ASSESSMENT OR DER FOR A.Y.2001-02 (PAGE 2 TO 19 OF PAPER BOOK). 3. WHILE THE DEPARTMENT DOES NOT DISPUTE THIS PROPO SITION, ITS APPREHENSION AS REFLECTED IN STATEMENT OF FACTS FIL ED WITH THE APPEAL PAPERS IN PARA 4 IS THAT THE MATTER IN RESPECT OF A.Y.2001-02 WAS NOT FINAL AND WAS BEFORE CIT(A) AND THE ASSESSEE MAY TAKE UP THE MATT ER TO THE TRIBUNAL. THAT WAS THE SITUATION AT THE TIME OF FILING OF THE APPE AL BY THE DEPARTMENT ON 29.05.2008. SUBSEQUENTLY, THE LD.CIT(A) BY ORDER D ATED 27.06.2008 (ANNEXURE-A) DISMISSED THE APPEAL OF THE ASSESSEE F OR A.Y.2001-02 IN RESPECT OF ADDITION TO UNEXPLAINED CAPITAL AND THE ASSESSEE HAS NOT TAKEN UP THE MATTER IN APPEAL TO THE TRIBUNAL. THEREFORE, THE DEPARTME NTS APPREHENSION IS TAKEN CARE OF. IT IS THEREFORE, RESPECTFULLY SUBMITTED THAT APPEAL MAY BE ALLOWED. THUS, IN THE WRITTEN SUBMISSION, IT HAS BEEN MENTIO NED BY THE LEARNED COUNSEL THAT THE ASSESSEE HAS ACCEPTED THE ORDER OF THE CIT(A) FOR A .Y.2001-02 AND NO APPEAL IS FILED AGAINST SUCH ORDER. THUS, THE ADDITION OF UNEXPLAI NED CAPITAL AMOUNTING TO RS.8,74,992/- IN A.Y.2001-02 HAS BECOME FINAL. ADM ITTEDLY, IN THE YEAR UNDER CONSIDERATION, THERE WAS UTILISATION OF THE SAME CA PITAL, WHICH WAS ALREADY ASSESSED IN A.Y.2001-02. ON THE ABOVE FACTS, IN OUR OPINION, T HE CIT(A) RIGHTLY HELD THAT THE ADDITION ON THE UTILISATION OF SUCH CAPITAL CANNOT BE MADE AGAIN IN A.Y.2004-2005. WE THEREFORE UPHOLD THE ORDER OF THE CIT(A) AND DIS MISS THE APPEAL FILED BY THE REVENUE. 4. IN RESULT, THE REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 30 TH NOVEMBER, 2010. SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 30-11-2010 COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) ITA NO.2076/AHD/2008 -3- 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD