Appeal details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 85645 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 year(s) 7 month(s) 1 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
23-01-2015
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
D
Next Hearing Date
21-01-2015
Assessment Year
2007-2008
Appeal Filed On
21-06-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER ITA NO . 2114 /AHD/20 1 0 A. Y. 200 7 - 0 8 M/S. SIDDHI VINAYAK CONSTRUCTION, SIDDHI VINAYAK APARTMENT, DADA BHA GWAN MANDIR, NANSAD ROAD, TAL. KAMREJ, SURAT. PAN: ABGFS 5714C VS THE DY. COMMISSIONER OF INCOME TAX , CIRCLE - I, AHMEDABAD . (APPELLANT) (RESPONDENT) REVENUE BY : SMT. SONIA KUMAR, SR. D.R. ASSESSEE(S) BY : SHRI M. K . PATEL , A.R. / DATE OF HEARING : 2 1 / 01 /201 5 / DATE OF PRONOUNCEMENT: 23 / 01 /201 5 / O R D E R PER MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN A PPEAL FILED BY THE ASSESSEE ARISING FROM AN ORDER OF THE L EARNED CIT (A) - I V, SURAT DATED 1 9. 05 .2010 . THE GROUND S RAISED ARE REPRODUCED BELOW: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED CONFIRMING THE AC TION OF THE LEARNED ASSESSING OFFICER IN CONFIRMING ADDITION OF RS.1,50,740/ - ON ACCOUNT OF APPLICATION OF SECTION 44AD OF THE ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME T AX (APPEALS) HAS ERRED CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER IN MAKING ADDITION OF RS.10,00,000/ - ON ACCOUNT OF ALLEGED UNEXPLAINED BOGUS CREDITS U/S.68 OF THE I .T. ACT, 1961. ITA NO. 2114 /AHD/201 0 M/S. SIDDHI VINAYAK CONSTRUCTION VS. ITO, WARD - 5(4), SURAT FOR A.Y. 200 7 - 0 8 - 2 - 2. AT THE OUTSET, LEARNED AR, MR. M.K. PATEL HAS STATED AT BA R NOT TO PRESS GROUND NO.1. HENCE DISMISSED BEING NOT PRESSED. 3. APROPOS TO GROUND NO.2, WE HAVE NOTED THAT WHILE PASSING THE ORDER U/S.143(3) DATED 31.12.2009, THE AO HAS NOTED THAT AS PER THE BALANCE SHEET DRAWN AS ON 31.03.2007 , THE ASSESSEE HAD SHOW N BOOKING ADVANCE OF RS.10 LAC FROM FEW PARTIES, TO WHOM NOTICES U/S.133(6) WERE ISSUED. THE AO HAS LISTED THE NAMES WITH REMARKS AS UNDER: SR, NO. NAME AMOUNT REMARKS, 1 BHARATIBEN G. MAHIDA 1,81,000/ - NOTICE U/S. 133(6) SERVED BUT NOT RESPONDED 2. DAMY ANTI S. PATEL 70,000/ - - DO - 3. HARESH M. PATEL 1,91,000/ - - DO - 4. HITESH C. GOHIL 25,000/ - - DO - 5. SHANTIBEN M. DODIYA 3,02,000/ - - DO - 6. SIDDHARTH R. PATIL 2,31,000/ - - DO - TOTAL RS.10,00,000/ - 3.1 FINALLY, THE IMPUGNED AMOUNT WAS TAXED IN THE HAN DS OF THE ASSESSEE BY INVOKING PROVISIONS OF SECTION 68 OF IT ACT. 4. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, LEARNED CIT(A) HAS HELD AS UNDER: I HAVE CAREFULLY CONSIDERED BOTH THE POSITION. I HAVE ALSO GONE THROUGH THE VARIOUS DOCUMENTARY EVIDENCES FURNISHED BY THE AR AND ALSO THE ASSESSMENT ORDER. I FIND THAT NONE OF THE PARTIES APPEARED BEFORE THE AO. NOR DID THE APPELLANT TRIED TO PRODUCE THEM DURING THE ASSESSMENT PROCEEDINGS OR EVEN DURING APPELLATE PROCEEDINGS. THERE ARE N O CONFIRMATIONS OBTAINED FROM THESE PARTIES. SURELY SOME KIND OF EVIDENCE COULD HAVE BEEN LED BEFORE THE AO IN SUPPORT OF THESE CLAIMS OF RECEIPTS OF BOOKING ADVANCES . JUST GIVING NAMES AND ADDRESSES IS NOT SUFFICIENT TO JUSTIFY THE CLAIM OF RECEIPTS OF RS . 10,00, 000/ - . EVEN BEFORE ME DURING APPELLATE PROCEEDINGS NO SUCH EFFORTS HAVE BEEN MADE NOR ANY FURTHER FILING OF ANY DIRECT OR INDIRECT OR RELEVANT MATERIAL PROMISED TO ASSIST ME TO TAKE ANY WELL INFORMED DECISION. SO ALTHOUGH IDENTITY COULD HAVE BEEN E STABLISHED AS CLAIMED DURING ASSESSMENT PROCEEDINGS , THE GENUINENESS IS TOTALLY ABSENT IN THESE CASES. THEREFORE THE ITA NO. 2114 /AHD/201 0 M/S. SIDDHI VINAYAK CONSTRUCTION VS. ITO, WARD - 5(4), SURAT FOR A.Y. 200 7 - 0 8 - 3 - AO HAD NO OPTION BUT TO ADD THE AMOUNTS U/S . 68 IN THE LIGHT OF STARK INADEQUACY OF EVIDENCE AND NOR DO I HAVE ANY OPTION BUT TO CONFIRM THE ADDITION FOR THE SAME REASON. IN THE LIGHT OF ABOVE DISCUSSION I AM FULLY SATISFIED THAT THE ASSESSEE HAS NOT FULLY DISCHARGED HIS BURDEN OF PROOF AND ADDITION OF RS. 10,00,000 STANDS UPHELD AND CONFIRMED. 5. LEARNED SR.D.R., SMT. SONIA KUMAR HAS RAISED A VEHEMENT OBJECTION IN RESPECT OF FILING OF ACCOUNTS AND SUPPORTING EVIDENCES OF THOSE PARTIES IN A PAPER BOOK DATED 16 TH OF JANUARY, 2015. SHE HAS POINTED OUT THAT ADMITTEDLY THESE EVIDENCES WERE ADDITIONAL EVIDENCES ; HENCE THE ASSESSEE SHOULD NOT BE AL LOWED TO PLACE RELIANCE ON THESE EVIDENCES WHICH WERE NOT FILED BEFORE THE REVENUE AUTHORITIES. 6. LEARNED AR HAS REPLIED THAT THOSE EVIDENCES WERE IN FACT FILED DURING THE PROCEEDINGS INITIATED U/S.271(1)(C) BEFORE THE AO AND THESE EVIDENCES HAVE DIRECT IMPACT ON THE FACTS OF THE CASE ; THEREFORE , DESERVE TO BE ADMITTED AS PER RULE 29 OF APPELLATE TRIBUNAL RULES, 1963. 7. WE HAVE HEARD BOTH THE SIDES. WE HAVE PERUSED THE NATURE OF THESE EVIDENCES IN THE LIGHT OF THE FACTS OF THIS CASE. OUR ATTENTION HAS B EEN DRAWN ON A REPLY DATED 14.07.2010 FILED BEFORE INCOME TAX OFFICER, WARD - 5(4), SURAT IN RESPECT OF PENALTY PROCEEDINGS U/S.271(1)(C) OF IT ACT . I N THIS REPLY , THE ASSESSEE HAS GIVEN A DETAILED CHART GIVING THE NAME OF THE PART Y , THE PROPERTY ALLOTTED, A MOUNT RECEIVED AND THE ENCLOSURES. THEREFORE IT IS CORRECT THAT THESE EVIDENCES WHICH ARE NOW FILED IN THE PAPER BOOK WERE FILED BEFORE THE AO, ALTHOUGH IN A DIFFERENT PROCEEDINGS OTHER THAN THE ASSESSMENT PROCEEDINGS. AN ANOTHER EVIDENCE HAS ALSO BEEN BR OUGHT TO OUR NOTICE THAT THE NOTICES U/S.133(6) HAVE BEEN SERVED ON THOSE PARTIES, WHICH ITSELF PROVED THAT THOSE PARTIES WERE IN EXISTENCE BUT THEY HAVE CHOSEN NOT TO ATTEND THE PROCEEDINGS BEFORE THE AO. IN THAT ITA NO. 2114 /AHD/201 0 M/S. SIDDHI VINAYAK CONSTRUCTION VS. ITO, WARD - 5(4), SURAT FOR A.Y. 200 7 - 0 8 - 4 - SITUATION, THE AO HAS MORE POWERS TO SUMMO N THE M AS PRESCRIBED U/S.131 OF IT ACT. BE THAT AS IT WAS, IN THE PRESENT SITUATION WE DEEM IT PROPER TO RESTORE THIS GROUND BACK TO THE STAGE OF THE AO TO BE DECIDED DENOVO AFTER EXAMINING THESE EVIDENCE AS PER LAW. SINCE, THESE EVIDENCES HAVE A DIRECT BE ARING ON THE ISSUE INVOLVED THEREFORE DESERVE TO BE ADMITTED BUT DEFINITELY REQUIRE VERIFICATION BY THE AO. RATHER , CONSIDERING ALL THESE POINTS, THE PARTIES A PPEARING BEFORE US HAVE ALSO SUGGESTED THAT THIS GROUND CA N BE DECIDED DENOVO BY THE AO AFTER VERIF YING THE CORRECTNESS OF THESE EVIDENCES. RESULTANTLY, THIS GROUND IS RESTORED BACK TO BE DECIDED BY THE AO AS PER LAW; HENCE MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSE ONLY. 8. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. SD/ - SD/ - (ANIL CHATURVEDI ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23 / 01 / 20 1 5 PRABHAT KR. KESARWANI , SR. P . S . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD
