The ITO, Ward-13(4), Ahmedabad V. Shri Rajesh Bachubhai Chauhan, Ahmedabad

ITA 2138/AHD/2011

• Counselvise Citation: 213820514 RSA 2011
• Duration Of Justice: 3 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 30-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: U S BHATI
• Section: 68; 263; 143(3)

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .# ## #. . . . % % % %, , , , &' ( & ' &' ( & ' &' ( & ' &' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND N.S. SAINI, ACCOUNTANT MEMBER) ITA NO.2138/AHD/2011 [ASSTT.YEAR : 2008-2009] ITO, WARD-13(4) AHMEDABAD. /VS. SHRI RAJESH BACHUBHAI CHAUHAN 1033, CHHAGARANI POLE, LUNCHHAVAD, DARIYAPUR AHMEDABAD 380 001. PAN : AEXPC 9941 F ( (( ( *+ *+ *+ *+ / APPELLANT) ( (( ( ,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ( . / & / REVENUE BY : SHRI DINESH SINGH, SR.DR 12 . / & / ASSESSEE BY : SHRI U.S. BHATI 3 . 24' / DATE OF HEARING : 16 TH OCTOBER, 2014 567 . 24' / DATE OF PRONOUNCEMENT : 25-11-2014 &8 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS IS APPEAL OF THE REVENUE FOR THE ASSTT.YEAR 2008-09 IS DIRECTED AGAINST THE ORDER OF THE CIT(A). 2. THE GROUNDS OF THE APPEAL OF THE REVENUE ARE AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.13,23,855/- MADE U/S.68 OF THE IT ACT ON ACCO UNT OF UNEXPLAINED CASH DEPOSITS MADE IN S.B. ACCOUNT OF THE ASSESSEE WITH AXIS BANK, AHMEDABAD. ITA NO.2138/AHD/2011 -2- 2. THE LD.CIT(A) HAS FAILED TO CONSIDER THE FACT TH AT SB A/C.NO.453010100015039 WITH AXIS BANK WHEREIN CASH DEPOSIT OF RS.13,23,855/- HAD BEEN MADE BELONGS TO SHRI HITESH B. CHAUHAN AND THE ASSESSEE, IN JOINT NAME. THE ASSESSEE BEING JOINT- HOLDER OF THE ACCOUNT, BURDEN ALSO LIES UPON HIM TO EXPLAIN SATISFACTORILY WITH EVIDENCE FOR ANY TRANSACTIONS MADE IN BANK ACCOUNT HELD IN JOINT CAP ACITY. 3. THE LEARNED DR SUBMITTED THAT THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF CASH DEPOSIT AMOUNTING TO RS.13,23,855/- IN SB A CCOUNT OF THE ASSESSEE WITH AXIS BANK AND THE ASSESSEE WAS JOINT-HOLDER WITH SH RI HITESH CHAUHAN, AND THEREFORE, THE BURDEN ALSO LIES UPON THE ASSESSEE T O EXPLAIN THE SOURCE OF DEPOSIT MADE IN THE BANK ACCOUNT HELD IN JOINT CAPACITY. H E RELIED ON THE ORDER OF THE AO. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE AMOUNT IN QUESTION HAS BEEN OWNED BY THE JOINT HOLDER OF THE BANK ACCOUNT, SHRI HITESH CHAUHAN AND ACCORDINGLY ASSESSED IN THE CASE OF SHR I HITESH CHAUHAN IN ASSESSMENT ORDER PASSED UNDER SECTION 143 R.W.S. 14 7 DATED 12.2.2013. HE SUBMITTED THAT CIT VIDE HIS ORDER DATED 9.9.2014 PA SSED UNDER SECTION 263 OF THE ACT HAS CANCELLED THE ASSESSMENT IN THE CASE OF SHRI HITESH CHAUHAN, AND THE AO IS DIRECTED TO MAKE FRESH ASSESSMENT OF HIM FOR THE RELEVANT ASSESSMENT YEAR AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESS EE AS PER THE LAW. IN THESE FACTS, HE SUBMITTED THAT SAME AMOUNT WAS CONSIDERED IN THE ASSESSMENT OF THE JOINT HOLDER OF THE BANK ACCOUNT, SHRI HITESH CHAUH AN, COULD NOT BE TAXED AGAIN IN THE HANDS OF THE ASSESSEE, AS IT SHALL AMOUNT TO DOUBLE TAXATION OF THE SAME AMOUNT OF INCOME. HE RELIED ON THE ORDER OF THE C IT(A). 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDER OF THE ASSESSMENT PASSED UNDER SECTION 143(3) R.W.S. 147 D ATED 12.2.2013 IN THE CASE OF JOINT HOLDER OF THE BANK ACCOUNT, SHRI HITESH CH AUHAN. COPY FILED IN THE COMPILATION BY THE ASSESSEE. WE FIND THAT IN THE A SSESSMENT ORDER DATED 12.2.2013 IN THE CASE OF SHRI HITESH CHAUHAN, THE A O HAS RECORDED THE LETTER OF SHRI HITESH CHAUHAN DATED 6.2.2013 ADMITTING THE OW NERSHIP OF THE DISPUTED ITA NO.2138/AHD/2011 -3- AMOUNT DEPOSITED IN THE SAME SAVING BANK ACCOUNT WI TH AXIS BANK IN THE JOINT NAME OF THE ASSESSEE AND SHRI HITESH CHAUHAN. THE AO VIDE ASSESSMENT ORDER DATED 12.2.2013 HAS CONSIDERED THE SAME AMOUNT IN T HE HANDS OF SHRI HITESH CHAUHAN AND HAS MADE THE ADDITION AFTER APPLYING A FLAT RATE OF 12% AS PROFIT EARNED ON UNRECORDED TRADING ACTIVITIES CARRIED DUR ING THE RELEVANT PERIOD. THE CIT VIDE HIS ORDER DATED 9.9.2014 HAS CANCELLED THE ASSESSMENT ORDER IN THE CASE OF SHRI HITESH CHAUHAN DATED 12.2.2013 AND DIRECTED THE AO TO MAKE ASSESSMENT OF THE TOTAL INCOME OF THE ASSESSEE FOR THE ASSTT.YEAR 2008-2009 AFTER ALLOWING THE OPPORTUNITY TO THE ASSESSEE AS P ER THE LAW, AS IN VIEW OF THE CIT, THE ADDITION SHOULD NOT HAVE BEEN RESTRICTED T O THE RATE OF PROFIT ON UNRECORDED TRANSACTION, AND FOR MAKING PROPER INQUI RY WITH REGARD TO THE ISSUE. THE CONTROVERSY THAT WHETHER THE TAXING OF WHOLE TH E AMOUNT IN QUESTION OR THE RATE OF PROFIT ON UNRECORDED TRANSACTION SHOULD BE ADDED AS INCOME IN THE HANDS OF SHRI HITESH CHAUHAN IS NOT RELEVANT FOR THE ISSU E OF TAXING THE SAME AMOUNT IN THE HANDS OF THE ASSESSEE BEFORE US. IT IS WELL SETTLED THAT THE SAME AMOUNT COULD NOT BE TAXED IN THE HANDS OF TWO ASSESSEES, A S IT SHALL RESULT IN DOUBLE TAXATION OF THE SAME AMOUNT OF INCOME. ACCORDINGLY , WE HOLD THAT SINCE THE AMOUNT IN QUESTION HAS ALREADY BEEN CONSIDERED IN T HE HANDS OF THE JOINT BANK ACCOUNT HOLDER, SHRI HITESH CHAUHAN, THE SAME COULD NOT BE CONSIDERED FOR ASSESSMENT IN THE HANDS OF THE ASSESSEE, AND THERE IS NO MISTAKE IN THE ORDER OF THE CIT(A) IN HOLDING THAT THE AMOUNT IN QUESTION W AS NOT OWNED BY THE ASSESSEE, AND IN DELETING THE ADDITION MADE UNDER S ECTION 68 OF THE ACT. ACCORDINGLY, THE ORDER OF THE CIT(A) IS CONFIRMED A ND THE GROUNDS OF THE APPEAL OF THE REVENUE ARE DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( # ## # . .. . # ## # . . . . % % % % /N.S.SAINI) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT