Shri Kumarbhai M.Tahelyani, Nadiad V. The ACIT.,Cent.Circle-2, Baroda

ITA 2144/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1221 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-06-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 27-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: DIVYAKANT PARIKH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2144/AHD/2012 / ASSTT. YEAR: 2007-2008 SHRI KUMARBHAI M. TAHELYANI C/O. ASIAN FOOD INDUSTRIES OPP: ESCORTS TRACTORS N.H. 8 PO DABHAN, NADIAD. PAN : ABAPT 8070 A VS ACIT, CENT.CIR.2 BARODA. ./ ITA.NO.2145/AHD/2012 / ASSTT. YEAR: 2007-2008 SMT. RADHABEN KUMARBHAI TAHELYANI C/O. ASIAN FOOD INDUSTRIES OPP: ESCORTS TRACTORS N.H. 8 PO DABHAN, NADIAD. PAN : ABAPT 8063 F VS ACIT, CENT.CIR.2 BARODA. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI DIVYAKANT PARIKH REVENUE BY : SHRI DINESH SINGH, SR.DR / DATE OF HEARING : 22/06/2016 / DATE OF PRONOUNCEMENT: 08 /07/2016 $%/ O R D E R PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANCE OF THE ASSESSEES AGAINST COMMON ORDER OF THE LD.CIT(A) DATED 30.7.2012 PASSE D FOR THE ASSTT.YEAR 2007-08. 2. SHORT QUESTION INVOLVED IN THESE APPEALS TO THE EFFECT THAT WHETHER THE APPELLANTS HAVE SOURCE OF RS.9.00 LAKHS (IN THE CAS E OF SMT.RADHABEN KUMARBHAI TAHELYANI) AND RS.4.00 LAKHS (IN THE CASE OF SHRI K UMARBHAI M.TAHELYANI). ITA NO.2144 AND 2145/AHD/2012 2 3. HUSBAND AND WIFE WERE PARTNERS IN FIRM VIZ. M/S .ASIAN FOOD INDUSTRIES. THEY HAVE DEPOSITED A SUM OF RS.9.00 LAKHS IN THE C ASE OF SMT.RADHABEN KUMARBHAI TAHELYANI AND RS.4.00 LAKHS IN THE CASE O F SHRI KUMARBHAI M.TAHELYANI. THE LD.AO HAS SOUGHT EXPLANATION FROM BOTH THE ASSESSEES ABOUT THE NATURE AND THE SOURCE OF AMOUNTS INTRODUCED IN THEI R CAPITAL ACCOUNTS. IN RESPONSE TO THE QUERY OF THE AO, IT WAS CONTENDED THAT FAMIL Y MEMBERS HAVE WITHDRAWN A SUM OF RS.46 LAKHS FROM THE CAPITAL ACCOUNT OF M/S. ASIAN FOOD INDUSTRIES. THE DETAILS ARE AS UNDER: SR.NO. NAME OF PERSON DATE OF WITHDRAWAL AMT. OF WITHDRAWAL 1. RADHABEN KUMARBHAI 02-12-2005 16,00,000/- 2. AJAY KUMARBHAI 08-12-2005 15,00,000/- 3. HARISH KUMARBHAI 01-12-2005 15,00,000/- 4. IT WAS CONTENDED THAT FROM THE WITHDRAWALS OF SM T.RADHABEN, THE AMOUNTS HAVE BEEN RE-DEPOSITED IN THE CAPITAL ACCOUNT. EXP LANATIONS OF BOTH THE ASSESSEES HAVE BEEN REJECTED BY THE LD.REVENUE AUTHORITIES BE LOW. ACCORDING TO THE LD.REVENUE AUTHORITIES, THE AMOUNT OF RS.46 LAKHS W ITHDRAWN FROM THE FAMILY MEMBERS MUST HAVE BEEN USED IN SOME DEAL. THE ASSE SSEES HAVE FAILED TO DISCLOSE THE DETAILS OF THAT DEAL. THEREFORE, THEY HAVE NOT GIVEN THE BENEFIT OF CASH AVAILABLE WITH SMT.RADHABEN. 5. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD CAREFULLY. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT A SUM OF RS.16 LAKHS WAS WITHDRAWN BY SHRI RADHABEN IN THE MONTH OF DECEMBER , 2005. IT WAS CLAIMED BY THE ASSESSEE THAT OUT OF THIS AMOUNT A SUM OF RS.9 LAKHS WAS RE-DEPOSITED IN THE MONTH OF APRIL, 2006 AND RS.4.00 LAKHS WAS DEPOSITE D BY SHRI KUMARBHAI M. TEHALIYANI IN THE MONTH OF MARCH, 2007. THE LD.CIT (A) HAS CANDIDLY RECORDED THAT THE AMOUNT WAS RE-DEPOSITED WITHIN A GAP OF 4 MONTH S IN THE CASE OF SMT.RADHABEN AND 15 MONTHS IN THE CASE OF SHRI KUMARBHAI M. TEHA LIYANI. ACCORDING TO ME, THERE ARE TWO ASPECTS. FIRSTLY, IT IS THE PRESUMPT ION OF THE REVENUE AUTHORITIES THAT ITA NO.2144 AND 2145/AHD/2012 3 THERE MUST BE SOME DEAL. I AM OF THE VIEW THAT EVE N IF THERE WAS A DEAL, THEN IT WAS FOR THE REVENUE TO COLLECT INFORMATION AS PER ITS B ELIEF. SECONDLY, NON-DISCLOSURE OF ANY IMAGINATORY DEAL WOULD NOT WIPE OUT AVAILABILIT Y OF CASH. IT WAS FOR THE REVENUE TO DEMONSTRATE THAT THIS CASH WAS USED BY T HE ASSESSEES, AND IT WAS NOT AVAILABLE WITH THEM. EACH INDIVIDUAL ACTED IN DIFF ERENT MANNER. IT IS NOT NECESSARY THAT SMT.RADHABEN SHOULD ACT ACCORDING TO THE EXPEC TATION OF THE REVENUE AUTHORITIES THAT THESE AMOUNTS MUST HAVE BEEN USED BY HER FOR SOME OTHER PURPOSES. IT IS PURELY AN ASSUMPTION AND GUESS-WORK. THE AMO UNT WAS MUCH MORE THAN THE ONE DEPOSITED IN THE ACCOUNT. THEREFORE, TO MY MIN D, THE REVENUE AUTHORITIES HAVE FAILED TO GIVE ANY PLAUSIBLE REASON TO DENY THE BEN EFIT OF AVAILABILITY OF CASH WITH THE ASSESSEES. I ALLOW BOTH THE APPEALS AND DELETE THE ADDITIONS. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 8 TH JULY, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER