Shri Uveshbhai Shabbirbhai Vohra, Anand V. The ACIT, Anand Circle, Anand

ITA 2250/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8023 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: B T THAKKAR
• Section: 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORESHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO. 2250/AHD/2014 / ASSESSMENT YEAR: 2010-11 SHRI UVESHBHAI SHABBIRBHAI VOHRA, PROP. ALL GLASS TRADERS, B/H. HOTEL KASHMIR, SAMARKHA CROSSING, ANAND-388001 PAN : ABBPV 8876 H VS. ACIT, ANAND CIRCLE, ANAND / (APPELLANT) / (RESPONDENT) ASSESSEE BY : B.T. THAKKAR, AR REVENUE BY : SONIA KUMAR, SR DR / DATE OF HEARING : 11/10/2017 / DATE OF PRONOUNCEMENT: 04/12/2017 / O R D E R THE PRESENT APPEAL IS DIRECTED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A)-IV, BARODA DATE D 06.05.2014 PASSED FOR ASSESSMENT YEAR 2010-11. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT T HE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.11,86,000/- WHICH WAS ADDED BY THE ASSESSING OFFICER WITH THE AID OF SECTION 68 OF THE INCOME-TAX ACT, 1961. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HIS RETURN OF INCOME ELECTRONICALLY ON 21.09.2010 DECLARING TOTAL INCOME AT RS.17,60,917/-. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE ASS ESSING OFFICER THAT THE ASSESSEE HAS TAKEN LOANS FROM FIVE PERSONS VIZ. :- A. SUBHASHCHANDRA D. DARJI - RS. 5,50,000/- B. ELYASHBHAI I VOHRA - RS. 36,000/- C. SAMEERBHAI SHEKH - RS. 3,50,000/- D. ISHAKBHAI A. VOHRA - RS. 1,50,000/- E. KANUBHAI B. DARJI - RS. 1,00,000/- SMC-ITA NO. 2250/AHD/2014 SHRI UVESHBHAI SHABBIRBHAI VOHRA VS. ACIT FOR AY: 2010-11 2 4. IN ORDER TO FULFILL THE ONUS CONTEMPLATED UNDER SECTION 68 OF THE INCOME-TAX ACT, THE ASSESSEE HAS FILED CONFIRMATION FROM THE DEPOSITORS, BANK STATEMENTS, INCOME-TAX RETURNS IN CASE OF THE DEPOSITORS WHO HAS FILED THE RETURN, COPY OF THE ACCOUNT ETC.. THE LEARNED A SSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE MAIN LY FOR THE REASON THAT THE CREDITORS WERE NOT CREDITWORTHY; HENCE, HE MADE AN ADDITION OF RS.11,68,000/-. 5. APPEAL TO THE LD. CIT(A) DID NOT BRING ANY RELIE F TO THE ASSESSEE. 6. WITH THE ASSISTANCE OF THE LEARNED REPRESENTATIV ES, I HAVE GONE THROUGH THE RECORD CAREFULLY. I FIND THAT THE ASSE SSEE HAS FILED WRITTEN SUBMISSIONS WHICH HAS BEEN REPRODUCED BY THE CIT(A) . IN THE SUBMISSIONS, THE ASSESSEE HAS HIGHLIGHTED THE NATURE OF EVIDENCE SUBMITTED BY HIM IN ORDER TO EXPLAIN THE NATURE OF TRANSACTIONS AND SOU RCE OF FUNDS. THE RELEVANT DETAILS READ AS UNDER:- SUBHASCHANDRA D. DARJI CONFIRMATION LETTER, COPY OF LEDGER ACCOUNT FROM BOOKS OF YOUR ASSESSES OF S.D. DARJI AND COPY OF HI S I.T. RETURN FOR A.Y. 2010-11 WITH PAN ADXPD9237E. HE IS PROPRIETOR OF SHIV SHAKTI GLASS TRADERS AND HAS INCOME FROM BUSINESS. COPY OF HIS BANK PASS BOOKS EVIDENCING THE FACTS THAT FUNDS HAVE COME ONLY FROM HIS BANK A/C AND THERE WERE SUFFICIENT FUNDS IN HIS A/C BEFORE GIVING FUND S TO YOUR APPELLANT. FUNDS WERE REPAID BY A/C PAYEE CHEQUES IN THE VERY SAME YEAR. KANUBHAI B. PATEL ORIGINAL AFFIDAVIT CONFIRMING THE CREDIT TRANSACTION WITH YOUR ASSESSEE. AS AFFIRMED IN AFFIDAVIT, HE HAS AGRICULTURAL INCOME AND COPY OF LAND DETAILS IN FORM NO. 7/12 ARE WERE ENCLOSED. HE WAS EXAMINED U/S 131 WHERE HE PRODUCED HIS BANK PASS BOOK ALONG WITH COPY OF HIS CONTRA ACCOUNT FROM PARTY TO WHOM HE HAD SOLD HIS AGRICULTURAL PRODUCE AND RECEIVED FUNDS. THE CONTRA ACCOUNT SHOWED DETAILS OF CHEQUES PAID TO HIM, OUT OF WHICH SMC-ITA NO. 2250/AHD/2014 SHRI UVESHBHAI SHABBIRBHAI VOHRA VS. ACIT FOR AY: 2010-11 3 HE HAD PROVIDED FUNDS TO YOUR APPLICANT. THE A.O., DURING RECORDING STATEMENT OF KANUBHAI, (WHICH WAS DONE IN PRESENCE OF UNDERSIGNED) ALSO CONFIRMED THE TRANSACTION THROUGH TELEPHONE WITH THE PARTY PROVIDING CONTRA ACCOUNT. ISHAKBHAI A. VOHRA ORIGINAL AFFIDAVIT AFFIRMING CREDIT TRANSACTION WIT H YOUR ASSESSEE. AS AFFIRMED IN AFFIDAVIT, HE HAD RECEIVED RIOT COMPENSATION. HE WAS EXAMINED U/S 131, WHERE HE HAS PRODUCED HIS BANK PASS BOOK, COPY OF CHEQUE FOR RIOT COMPENSATION RECEIVED, WHICH WAS CREDITED IN TO HIS BANK ACCOUNT. THE FUNDS WERE GIVEN OUT SUCH FUNDS RECEIVED BY HIM. IIYASBHAI I VOHRA ORIGINAL AFFIDAVIT AFFIRMING CREDIT TRANSACTION WIT H YOUR ASSESSEE. AS AFFIRMED, HE HAD RECEIVED RIOT COMPENSATION. HE REMAINED PRESENT IN OFFICE OF A.O. FROM 11.00 A.M. TILL 5.00 P.M., BUT WAS NEVER CALLED FOR EXAMINATION. HE LEFT THE I.T. OFFICE AT 5 P.M. TO OFFER PRAYERS. HIS PASS BOOK WAS ALSO SUBMITTED. THE CREDIT ENTRY WAS THAT OF RIOT RELIEF FUND RECEIVED, OUT OF WHICH HE PROVIDED FUNDS TO YOUR APPELLANT. SAMIRBHAI SHEKH AS SUBMITTED HE IS OUT OF INDIA. THE FUNDS HAVE COME FROM NRE A/C OF HIS MOTHER KAMARUNNISA, H. SAIKH AND FUNDS HGVE BEEN CREDITED AS PER INSTRUCTIONS OF SAMIRBHAI IN HIS NAME. CONFIRMATION OF SAMIR SHEKH ALONG WITH COPY OF PASSPORT WERE OBTAINED THROUGH FAX WERE SUBMITTED. 7. OUT OF THE TOTAL CREDITORS, TWO PERSONS APPEARED BEFORE THE ASSESSING OFFICER, BUT SOMEHOW LEARNED ASSESSING OFFICER DID NOT CALL THEM FOR EXAMINATION. IT REVEALED FROM THE ORDER OF THE LD. CIT(A) THAT BASICALLY THE LD. FIRST APPELLATE AUTHORITY WAS NOT SATISFIED WIT H THE CREDITWORTHINESS OF THE CREDITORS. I HAVE GONE THROUGH THE RELEVANT DET AILS AVAILABLE IN THE PAPER-BOOK NAMELY BANK PASS-BOOK, AFFIDAVIT AND CON FIRMATION OF THE CREDITORS. THE AMOUNTS HAVE BEEN RECEIVED BY THE AS SESSEE THROUGH ACCOUNT PAYEE CHEQUES. HE HAS EVEN PROVED THE SOURCE OF SO URCE FROM WHERE CREDITORS HAVE GIVEN LOANS TO THE ASSESSEE. IN THE CASE OF SAMIRBHAI SHEKH, SMC-ITA NO. 2250/AHD/2014 SHRI UVESHBHAI SHABBIRBHAI VOHRA VS. ACIT FOR AY: 2010-11 4 THE AMOUNT WAS GIVEN FROM THE ACCOUNT OF HIS MOTHER KAMARUNNISA H. SAIKH WHO WAS AN NRE AT THE RELEVANT TIME. THERE I S NO HARM IN RECEIVING THE MONEY FROM THE MOTHER AND THEREAFTER GIVING IT TO THE ASSESSEE. SIMILARLY, ONE OF THE CREDITORS HAS RECEIVED THE MO NEY AS A COMPENSATION FOR THE RIOT. THOSE DETAILS ARE AVAILABLE IN THE BANK ACCOUNT OF THE RECIPIENT AS WELL AS HOW IT WAS GIVEN TO THE ASSESSEE. LEARNED COUNSEL FOR THE ASSESSEE DREW MY ATTENTION TOWARDS PAGE NO.9 AND 20 OF THE P APER-BOOK. SHRI ISHAQBHAI ADAMBHAI VOHRA HAS CONFIRMED, EVEN IN HIS STATEMENT BEFORE THE ASSESSING OFFICER, ABOUT ADVANCING LOAN TO THE ASSE SSEE. THUS, CONSIDERING THE NATURE OF EVIDENCE PRODUCED BY THE ASSESSEE, I AM SATISFIED THAT THE ASSESSEE HAS FULFILLED THE THREE INGREDIENTS OF SEC TION 68 OF THE ACT, NAMELY, IDENTITY OF THE CREDITOR, GENUINENESS OF THE TRANSA CTION AND CREDITWORTHINESS OF THE CREDITOR. I, THEREFORE, ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE ADDITION. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 4 TH DECEMBER 2017 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 04/12/2017 BIJU T., SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD