The ITO, Ward-3, Navsari V. Shri Rameshchandra Gulabrai Naik, Dist.Navsari,

ITA 2257/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6600 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-04-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 29-05-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N O N E
• Keywords: Unexplained cash credit; Gift; Business income; Opportunity of being heard; Source of fund; Additional evidence; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBLE SH RI D.C. AGRAWAL, A.M.) I.T.A. NO. 2257/AHD./2007 ASSESSMENT YEAR : 2003-2004 INCOME TAX OFFICER, WARD-3, NAVSARI VS.- SHRI RAM ESHCHANDRA GULABRAI NAIK, NAVSARI (PAN : ABOPN 5053 F) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANAND MOHAN, SR. D.R. RESPONDENT BY : N O N E O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS AGAINST THE OR DER DATED 12.02.2007 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS), VALSAD FOR THE ASSESSMENT YEAR 2003-04. 2. THE VARIOUS GROUNDS RAISED BY THE REVENUE IN ITS APPEAL ARE AS UNDER :- (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT.(A) HAS ERRED IN DELETING THE ADDITION OF RS.3, 26,130/- MADE ON ACCOUNT OF BUSINESS INCOME CAMOUFLAGED IN THE GUISE OF AGRICULTURE INCOME. (2) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD. CIT.(A) IS JUSTIFIED IN ADMITTING THE EVIDENCE PRODUCED BY THE ASSESSEE IN RESPECT OF ADDITION OF RS.4,25,000/ - AND RS.5,00,000/- RESPECTIVELY, WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSING OFFICER TO REBUT THE SAME AS REQUIRED UNDER RULE 46A. (2.1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT.(A) HAS ERRED IN DELETING THE ADDITION OF R S.4,25,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDITS. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT.(A) HAS ERRED IN DELETING THE ADDITION OF RS.5, 00,000/- MADE ON ACCOUNT OF UNEXPLAINED GIFT TREATED AS ASSESSEES U NDISCLOSED SOURCES OF INCOME. (4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT.(A) OUGHT TO UPHOLD THE ORDER OF THE ASSESSING OFFICER. 2 ITA NO. 2257/AHD/200 7 (5) IT IS, THEREFORE, PRAYED THAT ORDER OF THE CIT. (A) BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. 3. DESPITE THE NOTICE SENT TO THE ASSESSEE THROUGH REGISTERED POST, NONE WAS PRESENT ON BEHALF OF ASSESSEE ON THE DATED FIXED FOR HEARING. WE, THEREFORE, PROCEED TO DECIDE THIS APPEAL ON THE BASIS OF SUBMISSIONS MADE BY THE LD. DEPARTMENT AL REPRESENTATIVE AND THE MATERIAL AVAILABLE ON RECORD. 4. SHRI ANAND MOHAN, SR. D.R. APPEARING ON BEHALF O F REVENUE DREW OUR ATTENTION TO THE STATEMENT OF FACTS FILED BY THE DEPARTMENT. THE LD. D.R. CONTENDED THAT FOR DELETING BOTH THE ADDITIONS, THE LEARNED COMMISSIONER OF INCOME TAX(A PPEALS) HAS RELIED ON THE ADDITIONAL EVIDENCES FURNISHED BEFORE HIM. THE ADDITIONAL EVID ENCES WERE ADMITTED WITHOUT AFFORDING OPPORTUNITY TO ASSESSING OFFICER AS PROVIDED IN RUL E 46A OF INCOME TAX RULES, 1962. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF LEARNED COM MISSIONER OF INCOME TAX(APPEALS) BE SET ASIDE AND THE MATTER BE RESTORED TO THE FILE OF AS SESSING OFFICER WITH THE DIRECTION TO ASSESSEE TO PRODUCE ADDITIONAL EVIDENCES, WHICH WAS PRODUCED BE FORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS), THE ASSESSING OFFICER MAY EXAMINE THE SAME AND RE-ADJUDICATE BOTH THESE ADDITIONS AFRESH IN ACCORDANCE WITH LAW. 5. HAVING HEARD THE LD. DEPARTMENTAL REPRESENTATIVE , WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. BEFORE THE LEARNED COM MISSIONER OF INCOME TAX(APPEALS), THE ASSESSEE PRODUCED THE DETAILS OF OWNERSHIP OF CAR, COPY OF BALANCE SHEET AND RETURN OF INCOME OF SHRI JATINKUMAR, SON OF ASSESSEE AND BANK STATEMENT OF WORLD WIDE EXPORT EVIDENCING SAID TRANSACTION. THIS WAS ADMITTED BY THE LEARNED COMMI SSIONER OF INCOME TAX(APPEALS) AS FRESH EVIDENCE. SIMILARLY, IN RESPECT OF OTHER ADDITION, BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) THE ASSESSEE PRODUCED DOCUMENTS, WHICH WAS NEVER PRODUCED BEFORE THE ASSESSING OFFICER. WE, THEREFORE, SET ASIDE THE ORDER OF LEAR NED COMMISSIONER OF INCOME TAX(APPEALS) IN RESPECT OF BOTH THE ADDITIONS AND RESTORE THE SAME TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSEE SHOULD FURNISH ALL THE DOCUMENTS WHICH WERE FURNISHED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS), THE A. O. WILL EXAMINE THE SAME AND RE- 3 ITA NO. 2257/AHD/200 7 ADJUDICATE BOTH THE ADDITIONS AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE REVENUE IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 09.04.2010 . SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 09 / 04 /2010 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 REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.