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

ITA 2243/AHD/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2177 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-02-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 02-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: SUNIL H TALATI
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON' BLE SHRI A.N.PAHUJA, A.M. ) I.T.A. NO. 2243/AHD./2010 ASSESSMENT YEAR : 2007-2008 SHRI KUMARBHAI TAHELYANI, NADIAD -VS- THE A.C.I.T., CENTRAL CIRCLE-II, BARODA (PAN : ABAPT 8070) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUNIL H. TALATI, A.R. RESPONDENT BY : SHRI R.K.DHANESTA, D.R O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 04.05.2010 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV, AH MEDABAD FOR THE ASSESSMENT YEAR 2007- 2008. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER APPEAL, HE FILED THE RETURN OF INCOME ON 25.0 2.08 DECLARING TOTAL INCOME OF RS.36,22,520/-. THE ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER S ECTION 143(3) ON 07.05.09 ON A TOTAL INCOME OF RS.40,22,520/-. IN THIS ASSESSMENT YEAR, THE ASS ESSING OFFICER MADE ADDITION OF RS. 4 LAKHS. 3. ON APPEAL, IN THE IMPUGNED ORDER, THE LD. LEARNE D COMMISSIONER OF INCOME TAX(APPEALS) CONFIRMED THE ADDITION FOR THE DETAILE D REASONS GIVEN IN PARA 2.1 WHICH READS AS UNDER: 2.1 I HAVE CAREFULLY CONSIDERED THE SUBMISSION O F THE LD. COUNSEL AS WELL AS THE FACTS OF THE CASE. IT IS UNDISPUTED THAT THE APPELL ANT HAD INTRODUCED AN AMOUNT OF RS.4,00,000/- IN CASH 31.03.2007 IN HER CAPITAL ACC OUNT. THE SOURCE WAS EXPLAINED AS OUT OF THE WITHDRAWALS OF RS.16,00,000 /- MADE BY APPELLANTS WIFE ON 02.12.2005. THE APPELLANT HAD NOT EXPLAINED BEFORE THE ASSESSING OFFICER AS TO FOR WHICH SPECIFIC DEAL, THE AMOUNT WAS WITHDRAWN A ND IF THE AMOUNT OF 2 ITA NO. 2243-AHD-2010 RS.4,00,000/- WAS OUT OF THE WITHDRAWAL OF RS.16,00 ,000/- OF APPELLANTS WIFE, WHERE GONE THE BALANCE OF RS.3,00,000/- (RS.16.00 L AKHS RS.9.00 LAKHS RS.4.00 LAKHS) AS NO SUCH CASH IN HAND WAS SHOWN BY THE APP ELLANTS WIFE IN THE BALANCE SHEET NOR THERE WAS LOAN OF RS.4,00,000/- IS SHOWN IN THE NAME OF THE APPELLANT BY HIS WIFE. THE APPELLANT HAD ALSO NOT SHOWN HIS WIFE AS THE CREDITOR OF RS.4,00,000/- IN HIS BALANCE SHEET. THUS, THE EXPLA NATION FILED ON BEHALF OF THE APPELLANT IS CONTRARY TO THE FACTS ON RECORD AND TH E ASSESSING OFFICER HAD RIGHTLY REJECTED THE SAME. IT IS HARDLY BELIEVABLE THAT THE CASH WITHDRAWN ON 02.12.2005 FROM BANK WAS AVAILABLE WITH THE APPELLANTS WIFE F OR A PERIOD OF ALMOST MORE THAN 15 MONTHS. IF THE CASH OF RS.16,00,000/- WAS N OT UTILIZED, THE APPELLANTS WIFE WOULD HAVE RE-DEPOSITED THE SAME IN HER BANK ACCOUN T. CONSIDERING THE FACTS OF THE CASE, AN INFERENCE CAN ONLY BE DRAWN AS TO WHET HER THE SAME CASH AS WITHDRAWN FROM THE BANK WAS AVAILABLE WITH THE APPE LLANTS WIFE OR NOT. THE ASSESSING OFFICER HAD DRAWN A CORRECT INFERENCE AS THE APPELLANTS WIFE HAD CONCEALED THE INFORMATION IN HER POSSESSION AS REGA RD TO THE DEAL FOR WHICH CASH OF RS.16,00,000/- WAS WITHDRAWN. NO CLARIFICATION W AS GIVEN FOR THE AMOUNT OF RS.3,00,000/- IF THE DEPOSIT OF RS.9,00,000/- IN TH E NAME OF APPELLANTS WIFE AND RS.4,00,000/- IN APPELLANTS NAME WERE FROM THE WIT HDRAWAL OF RS.16,00,000/- MADE LONG BACK. NO ANY INTERFERENCE IS THEREFORE, C ALLED FOR IN THE FINDING RECORDED BY THE ASSESSING OFFICER. THE ADDITION MAD E FOR RS.4,00,000/- IS THUS CONFIRMED. THE FIRST GROUND OF APPEAL IS ACCORDINGL Y DISMISSED. 4. AGGRIEVED WITH THE ORDER OF THE LD. LEARNED COMM ISSIONER OF INCOME TAX(APPEALS), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FO LLOWING GROUNDS: 1. THE LEARNED C.I.T.(APPEALS) ERRED BOTH IN LAW AN D ON FACTS IN CONFIRMING THE ADDITION OF RS.4 LAKHS MADE BY THE ASSESSING OFFICE R. ON THE FACTS OF THE CASE THE AMOUNT OF RS.4 LAKHS CREDITED IN THE CAPITAL OF THE APPELLANT WAS SATISFACTORILY EXPLAINED AND THERE WAS NO UNDISCLOSED INCOME. IT B E SO HELD NOW. THE ADDITION BE DELETED. 2. THE LEARNED C.I.T.(APPEALS) ERRED BOTH IN LAW AN D ON FACTS IN NOT APPRECIATING THAT THERE WERE GENUINE WITHDRAWALS MADE BY THE WIF E OF THE APPELLANT WHICH WAS AVAILABLE FOR THE PURPOSE OF INTRODUCING THE AMOUNT AS CAPITAL AND WHEN THERE WAS NO DISPUTE REGARDING THE FACT OF WITHDRAWAL FRO M THE BANK BY THE APPELLANTS WIFE, WHICH WAS IN FACT UTILIZED FOR THE PURPOSE OF INTRODUCING THE CAPITAL, THE ADDITION OUGHT NOT TO HAVE BEEN MADE BY THE ASSESSI NG OFFICER AND CONFIRMED BY THE C.I.T. (APPEALS). THE ADDITION BE DELETED NOW. 5. AT THE TIME OF HEARING BEFORE US, SHRI SUNIL H. TALATI, LD. A.R. APPEARED ON BEHALF OF THE ASSESSEE AND CONTENDED THAT IN THE IMPUGNED ORDER, AGAINST THE COLUMN PRESENT FOR THE 3 ITA NO. 2243-AHD-2010 APPELLANT, THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS MENTIONED NONE WHEREAS IN THE BODY OF THE ORDER, HE HAS STATED THA T SHRI ARPIT SHAH, ADVOCATE ATTENDED WITH WHOM THE CASE WAS DISCUSSED. THE COUNSEL OF THE ASS ESSEE POINTED OUT THAT THIS ALONE INDICATES THAT THE LD. LEARNED COMMISSIONER OF INCOME TAX(APP EALS) HAS NOT APPLIED HIS MIND BECAUSE ON THE ONE HAND, HE PROCEEDED ON THE ASSUMPTION THAT N ONE ON BEHALF OF THE ASSESSEE WAS PRESENT AT THE TIME OF HEARING BEFORE HIM, WHEN HE HEARD THE A PPEAL AND ON THE OTHER HAND, HE HAS STATED THAT SHRI ARPIT SHAH, ADVOCATE APPEARED. ON MERIT, THE COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ADDITION OF RS.4 LAKHS MADE BY THE ASSESSING OF FICER IS CONFIRMED BY THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS), IN THE IMPUGNE D ORDER, BY REJECTING THE EXPLANATION OF THE ASSESSEE ON DOUBTS AND SUSPICION. THEREFORE, ON THIS GROUND ALONE, ADDITION OF RS.4 LAKHS MADE BY THE ASSESSING OFFICER BE DELETED. 6. ON THE OTHER HAND, SHRI R.K.DHANESTA, LD. D.R., APPEARING ON BEHALF OF THE REVENUE, VEHEMENTLY SUPPORTED THE ORDER OF THE LD. LEARNED C OMMISSIONER OF INCOME TAX(APPEALS). HE POINTED OUT THAT IT APPEARS, BY MISTAKE, THE LD. LE ARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS MENTIONED THAT NONE WAS PRESENT BEFORE HIM WH EN HE HEARD THE APPEAL OF THE ASSESSEE. THEREFORE, THE VIEW TAKEN BY THE LD. LEARNED COMMIS SIONER OF INCOME TAX(APPEALS) BE UPHELD. 7. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS NOT KNOWN HOW THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) , IN THE IMPUGNED ORDER, HAS STATED THAT NONE WAS PRESENT FOR THE APPELLANT. ON THE OTHER HA ND, IN THE BODY OF THE ORDER, HE HAS STATED THAT SHRI SHRI ARPIT SHAH, ADVOCATE ATTENDED WITH WHOM T HE CASE WAS DISCUSSED. BE THAT IT MAY BE, LOOKING TO THE TOTALITY OF THE FACTS AND CIRCUMSTAN CES OF THE CASE, WE ARE OF THE VIEW THAT IT WILL MEET THE ENDS OF JUSTICE, IF THE IMPUGNED ORDER OF THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE SET ASIDE AND THE LD. LEARNED COMMI SSIONER OF INCOME TAX(APPEALS) BE DIRECTED TO PASS A FRESH ORDER, AFTER DISCUSSING IN DETAIL THE OBJECTIONS OF THE ASSESSEE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND DIRECT HIM TO ADJUDICATE THE APPEAL AFRESH CLEARLY MENTIONING THE OBJECTIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND WHY THESE ARE NOT ACCEPTABLE. WE O RDER ACCORDINGLY. NEEDLESS TO ADD THAT BEFORE 4 ITA NO. 2243-AHD-2010 PASSING THE FRESH ORDER, THE LD. LEARNED COMMISSION ER OF INCOME TAX(APPEALS) WILL GIVE AN OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. THE ORDER PRONOUNCED IN THE COURT ON 04.02.2011. SD/- SD/- (A.N.PAHUJA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 04/02/2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT. 3) CIT(A.) CONCERNED, 4) CIT CONCERNED, 5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD TALUKDAR/SR.P.S.