Shri Jigar Bhikhalal Sanghavi, Ahmedabad V. The Income Tax Officer Ward-8(2), Ahmedabad

ITA 2139/AHD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94724 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 19-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Keywords: Unexplained cash credit; Corroborative evidences
• Section: 68; 2

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO.2139/AHD/2013 /BLOCK ASSTT. YEAR: 2008-2009 SHRI JIGAR BHIKHALAL SANGHAVI SANGHAVI TRADERS 1/NAVGHARI DEHLA RATANPOLE, AHMEDABAD. PAN : AFQPS 1399 F VS ITO, WARD - 8(2) AHMEDABAD. %& / (APPELLANT) '( %& / (RESPONDENT) ASSESSEE BY : SHRI VIVEK CHAVDA REVENUE BY : SHRI VILAS V. SHINDE, DR / DATE OF HEARING : 01/12/2015 / DATE OF PRONOUNCEMENT: 02/12/2015 )*/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF THE CIT(A)-III, AHMEDABAD DATED 3.6.2013 PASSED FOR THE ASSTT.YEAR 2008- 09. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.55,750/- WITHOUT L OOKING INTO WRITTEN SUBMISSIONS FILED BY THE ASSESSEE. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED HIS RETURN OF INCOME ON 26.11.2008 DECLARING TOTAL INCOME AT RS.3 ,02,370/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSE SSMENT AND NOTICE ITA NO.2139/AHD/2013 2 UNDER SECTION 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE AO THA T THE ASSESSEE HAS SHOWN RECEIPT OF AN AMOUNT OF RS.55,750/- IN CASH F ROM OTHERS. ACCORDING TO THE AO, THE ASSESSEE FAILED TO SUBMIT SUPPORTING EVIDENCE EXCEPT CASH FLOW STATEMENT. THEREFORE, HE MADE ADD ITION OF RS.55,750/- WITH AID OF SECTION 68 OF THE INCOME TA X ACT. APPEAL TO THE CIT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 4. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE CONTE NDED THAT FOLLOWING SUMS WERE GIVEN AS ADVANCE IN THE F.Y.200 5-06: 1) NARENDRA K. SHAH RS.18,346/- 2) ABHISHEK A. GANDHI RS.17,804/- 3) HARDIK N. SHAH RS.19,600/- TOTAL RS.55,750/- 5. THE ASSESSEE HAS SHOWN THESE AMOUNTS AS ADVANCE IN THE BALANCE SHEET FOR THE F.Y.2005-06 AND 2006-07. IN THIS YEA R THE ASSESSEE HAS RECEIVED BACK THESE AMOUNTS, AND THEREFORE, THEY CA NNOT BE UNEXPLAINED CASH CREDIT. HE FURTHER CONTENDED THAT THE ASSESSEE HAS FILED WRITTEN SUBMISSION BEFORE THE CIT(A), BUT THE JURISDICTION OVER THE ASSESSEE WAS TRANSFERRED, AND IN TRANSFER OF APPEAL S IT APPEARS THAT THE WRITTEN SUBMISSIONS SUBMITTED BY THE ASSESSEE DID N OT TRANSFER TO THE CIT(A) WHO HAS DECIDED THE APPEAL OF THE ASSESSEE. DUE TO THIS REASON, THE LD.CIT(A) HAS DISMISSED THE APPEAL OF THE ASSES SEE EX PARTE ON THE GROUND THAT THE ASSESSEE FAILED TO APPEAR BEFORE TH E LD.CIT(A). ON THE OTHER HAND, THE LD.DR RELIED UPON THE ORDER OF THE AO. 6. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECORD T HAT THE JURISDICTION OVER THE ASSESSEE WAS OF THE CIT(A)-XVI, AHMEDABAD. IT HAS BEEN CHANGED TO CIT(A)-III, AHMEDABAD. ACCORDING TO THE ASSESSEE, THE WRITTEN SUBMISSIONS FILED BY HIM APPEARS TO HAVE BE EN MISPLACED IN ITA NO.2139/AHD/2013 3 TRANSFER OF FILES. OTHERWISE, THE LD.CIT(A) MUST H AVE BEEN GONE THROUGH THE WRITTEN SUBMISSIONS AND RESULT WOULD BE DIFFERE NT. THE CASE OF THE ASSESSEE IS THAT THESE WERE THE ADVANCES GIVEN BY H IM IN THE F.Y.2005- 06 AND 2006-07 AND WERE SHOWN IN THE BALANCE SHEET FOR THE F.Y.2005- 06 AND 2006-07. THIS IS THE YEAR IN WHICH HE RECEI VED BACK THESE AMOUNTS. THIS FACT REMAINS TO BE VERIFIED, BECAUSE THIS WAS NOT THE STAND OF THE ASSESSEE BEFORE THE AO. THE LD.FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF THE EX PARTE . FACED WITH THIS SITUATION, WE DEEM IT APPROPRIATE TO SET ASIDE THE ORDER OF THE C IT(A) AND RESTORE THIS ISSUE TO THE FILE OF THE LD.CIT(A). IN CASE IT IS DEMONSTRATED THAT THESE WERE THE ADVANCES GIVEN BY THE ASSESSEE IN EARLIER YEARS, AND IN THIS YEAR HE HAS RECEIVED BACK THIS AMOUNT, THEN IT CANN OT BE TREATED AS UNEXPLAINED CASH CREDITS. THE LD.FIRST APPELLATE A UTHORITY SHALL ADJUDICATE THE ISSUE IN ACCORDANCE WITH LAW, AFTER HEARING THE ASSESSEE. 7. THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR I NJURE THE CASE OF THE AO AND WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSEE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 2 ND DECEMBER, 2015 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 02/12/2015