The ITO, Ward-9(1), Surat V. Smt. Ankita J.Mehta, Surat

ITA 2077/AHD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6226 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-06-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 30-05-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: M K PATEL
• Keywords: Gift; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.2077 / AHD/2008 (ASSESSMENT YEAR 1999-2000) ITO, WARD 9(1) SURAT VS. SMT. ANKITA J. MEHTA, B/S. PAVITRA ROW HOUSE, ANAND MAHAL ROAD, ADAJAN, SURAT PAN/GIR NO. : AGNPM3732C (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI ROOP CHAND JCIT DR RESPONDENT BY: SHRI M K PATEL, AR O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) V, SURAT DATED 19.03.2008 FOR THE ASSESSMENT YEAR 1999 -2000. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS .6,29,638/- MADE BY A.O. ON ACCOUNT OF UNEXPLAINED OPENING CAPI TAL ON PROTECTIVE BASIS. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A), WITHOUT APPRECIATING THE FACTS, HAS ERRED I N DELETING THE ADDITION OF RS.1,77,577/- MADE BY A.O. ON PROTECTIV E BASIS ON ACCOUNT OF UNEXPLAINED INTEREST ON LOAN/ADVANCES & GIFT . I.T.A.NO. 2077 /AHD/2008 2 IT IS, THEREFORE, PRAYED THAT THE APPEAL ORDER PASS ED BY THE HON'BLE CIT(A) BE SET ASIDE AND THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S. 144 R.W.S. 147 OF THE ACT DATED 29.09.2006 BE RESTORED. 3. IN THE VERY BEGINNING IT WAS SUBMITTED BY THE LD . A.R. THAT THE A.O. HAS MADE PROTECTIVE ADDITION IN THE PRESENT CASE BU T IT IS NOT CLEAR FROM THE ASSESSMENT ORDER AS TO WHERE THE SUBSTANTIVE ADDITI ON HAS BEEN MADE. HE DRAWN OUR ATTENTION TO PARA 11 OF THE ASSESSMENT OR DER AND POINTED OUT THAT THE A.O. HAS STATED IN THAT PARA OF THE ASSESSMENT ORDER THAT THAT SUBSTANTIVE ADDITION HAS TO BE MADE IN THE CASE OF SHRI PRAVEEN B MEHTA OR ANY OTHER MEMBER OF (SHRI PRAVEEN MEHTA) GROUP. IT IS SUBMIT TED BY HIM THAT HENCE THIS MATTER SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AND A.O. SHOULD BE DIRECTED TO DECIDE THE ISSUE AFRESH AFTER ASCERTAINING THE POSITION OF SUBSTANTIVE ADDITION MADE BY HIM AND HE SHOULD ALSO BE DIRECTED TO POINT OUT IN THE ASSESSMENT ORDER REGARDING THE NAME OF THE PERSON WHERE SUBSTANTIVE ADDITION HAS BEEN ACTUALLY MADE BY HIM. LD. D.R. SUPPORTED THE ASSESSMENT ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PURSUE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT THE LD. CIT(A) HAS DELETED THIS ADDITION OF RS.6,29 ,638/- REGARDING UNEXPLAINED OPENING CAPITAL ON THIS BASIS THAT THE ASSESSEE HAS OFFERED THE ENTIRE AMOUNT FOR TAXATION TO THE TUNE OF RS.9.31 L ACS IN ASSESSMENT YEAR 2003-04 AND THEREFORE, THE ADDITION IN THE PRESENT YEAR IS TO BE DELETED. BUT WE ARE NOT IN AGREEMENT WITH HIM ON THIS ASPECT BE CAUSE IF ADDITION IS OTHERWISE JUSTIFIED IN THE PRESENT YEAR THEN THE AD DITION CANNOT BE DEFERRED TO A SUBSEQUENT YEAR FOR THIS REASON ALONE THAT THE AS SESSEE HAS OFFERED THE SAME FOR TAXATION IN A SUBSEQUENT YEAR I.E. ASSESSMENT Y EAR 2003-04 IN THE PRESENT I.T.A.NO. 2077 /AHD/2008 3 CASE. HENCE, THE ORDER OF LD. CIT (A) IS NOT SUSTA INABLE. BUT AT THE SAME TIME, WE ARE OF THE VIEW THAT THERE IS FORCE IN THE CONTENTION OF THE LD. A.R. OF THE ASSESSEE THAT THE MATTER SHOULD GO BACK TO T HE FILE OF THE A.O. FOR HIS FRESH DECISION AFTER ASCERTAINING THE LATEST POSITI ON ABOUT THE SUBSTANTIVE ADDITION MADE BY HIM. THE ASSESSEE COULD NOT BRING ON RECORDS THE FACTS REGARDING SUBSTANTIVE ADDITION BECAUSE THE A.O. HAS NOT POINTED OUT IN THE ASSESSMENT ORDER REGARDING THE NAME OF THE PERSON I N WHOSE HANDS HE IS MAKING SUBSTANTIVE ADDITION. WE, THEREFORE, SET AS IDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF T HE A.O. FOR A FRESH DECISION. THE A.O. SHOULD ASCERTAIN THE CURRENT PO SITION OF THE ADDITION MADE BY HIM ON SUBSTANTIVE BASIS. HE SHOULD ALSO I NDICATE IN THE ASSESSMENT ORDER THE NAME OF THE PERSON IN WHOSE HANDS SUBSTAN TIVE ADDITION HAS BEEN MADE BY HIM AND THEREAFTER, HE SHOULD DECIDE THE IS SUE AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 5. IN THE RESULT, APPEAL OF THE REVENUE STANDS ALLO WED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JUNE 2011. SD/- SD/- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 30-6-2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD 6. THE GUARD FILE I.T.A.NO. 2077 /AHD/2008 4 1. DATE OF DICTATION 17/6/11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 17/6/11 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..