Shri Chirag Vithalbhai Dobatia, Surat V. The Income tax Officer,Ward-9(1), Surat

ITA 2291/AHD/2008

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94701 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-11-2015
• Assessment Year: 2000-2001
• Appeal Filed On: 16-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALA PHILIPS
• Assessee Lawyers: M K PATEL
• Keywords: Assessment record
• Section: 133A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO. 2291/AHD/2008 / ASSESSMENT YEAR: 2000-01 CHIRAG VITHALBHAI DOBARIA, B. NO.9-A, TRIKAM NAGAR-1, L.H. ROAD, SURAT PAN : AAPPD 7080 G VS. ITO, WARD-9 (1), SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI M.K. PATEL, AR REVENUE BY : SHRI LALA PHILIPS, SR. DR. !'# / DATE OF HEARING : 17/11/2015 / DATE OF PRONOUNCEMENT: 19/11/2015 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-V, SURAT DATED 17.03.2008 PASSED FOR ASSESSMENT YEAR 2000-01. 2. THE ASSESSEE HAS RAISED THREE GROUNDS OF APPEAL BUT HIS GRIEVANCE REVOLVES AROUND A SINGLE ISSUE, WHEREBY HE HAS PLEA DED THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 2,05,001/-. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2000-01 ON 27.04.2000 BY SHOWING TOTAL INCOME OF RS.60,989/-. A SURVEY U/S 133A OF THE INCOME-T AX ACT WAS CARRIED OUT IN THE CASE OF ONE SHRI PANKAJ DANAWALA, CHARTERED ACC OUNTANT. CERTAIN DOCUMENTS WERE FOUND IN A FILE IN THE NAME OF THE A SSESSEE. A PERUSAL OF THOSE DOCUMENTS REVEALED THAT IN THE FINANCIAL YEAR RELEVANT TO ASSESSMENT ITA NO. 2291/AHD/2008 CHIRAG VITHALBHAI DOBARIA VS. ITO FOR AY: 2000-01 2 YEAR 2000-01 IN THE ASSESSEES BALANCE-SHEET AN ENT RY IN THE NAME OF M/S. SUNGOLD ENTERPRISE, AMOUNTING TO RS.2.05,001/- WAS SHOWN. THE ASSESSING OFFICER HAS RECORDED REASONS AND REOPENED THE ASSES SMENT. HE ISSUED NOTICE U/S 148. THE REOPENING OF THE ASSESSMENT WA S CHALLENGED BY THE ASSESSEE BEFORE THE CIT(A) BUT THIS GROUND WAS REJE CTED. THE ASSESSEE HAS NOT CHALLENGED THE RE-OPENING OF ASSESSMENT BEFORE THE TRIBUNAL IN THE PRESENT APPEAL. 4. THE LEARNED ASSESSING OFFICER HAS CONFRONTED THE ASSESSEE THAT AN ENTRY OF RS.2,05,001/- IN THE ASSETS SIDE IN THE NA ME OF M/S. SUNGOLD ENTERPRISE HAS BEEN APPEARING IN HIS BALANCE-SHEET. THIS WAS A FRESH ASSET APPEARED FIRST TIME IN THE BALANCE-SHEET FOR THE YE AR UNDER CONSIDERATION; THEREFORE, ASSESSEE WAS REQUIRED TO EXPLAIN THE SOU RCE OF THE ASSET AS REFLECTED IN THE BALANCE-SHEET. ACCORDING TO THE A SSESSING OFFICER, THE ASSESSEE FAILED TO EXPLAIN THE SOURCE. THEREFORE, HE MADE AN ADDITION OF RS.2,05,001/-. THE LEARNED ASSESSING OFFICER HAS A LSO OBSERVED THAT THE ASSESSEE IS ONE OF THE BENAMIDARS OF SHRI JAGDISH H APANI GROUP. HE MADE AN ADDITION OF THIS AMOUNT ON SUBSTANTIVE BASI S IN THE CASE OF SHRI JAGDISH HAPANI GROUP AND ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE. ON APPEAL, LEARNED FIRST APPELLATE AUTHORITY DID NO T CONCUR WITH THE CONCLUSION OF THE ASSESSING OFFICER AND OBSERVED TH AT ASSESSEE CANNOT BE TREATED AS BENAMIDAR OF SHRI JAGDISH HAPANI GROUP AN D HE ACCORDINGLY CONFIRMED THE ADDITION IN THE HANDS OF THE ASSESSEE . 5. LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUT SET CONTENDED THAT A SIMILAR ISSUE HAS COME UP BEFORE THE TRIBUNAL IN LA RGE NUMBER OF CASES. HE PLACED ON RECORD A COPY OF THE TRIBUNALS ORDER PASSED IN A GROUP OF APPEALS, I.E., ITA NO. 1419/AHD/2009 AND OTHERS. THE LEARNED COUNSEL FOR THE ITA NO. 2291/AHD/2008 CHIRAG VITHALBHAI DOBARIA VS. ITO FOR AY: 2000-01 3 ASSESSEE TOOK US THROUGH PARAGRAPH NO.5 OF THE TRIB UNALS ORDER AND APPRISES US WITH THE FOLLOWING OBSERVATIONS:- 5. MOREOVER, MOST OF THE ADDITIONS IN RESPECT OF DIFFERENT ITEMS ARE MADE ONLY ON THE BASIS OF PAPER ENTRIES RECORDED AND FOU ND FROM THE PREMISE OF SHRI PANKAJ DANAWALA, CHARTERED ACCOUNTANT OF SURAT. THERE IS NO FINDING BY ANY OF THE AUTHORITIES BELOW AS TO WHETHER THE A SSESSEE HAS, IN FACT, UTILIZED/TAKEN ADVANTAGE OF SUCH PAPER ENTRIES IN L ATER YEARS WHICH IS VERY MATERIAL TO DECIDE THE TAXABILITY OR OTHERWISE OF T HE ADDITIONS IN QUESTION. 6. HE SUBMITTED THAT THESE ASPECTS ARE REQUIRED TO BE VERIFIED IN THE CASE OF THE ASSESSEE. THE ASSESSEE HAS CATEGORICALLY SU BMITTED FOLLOWING POINTS DURING THE COURSE OF HEARING BEFORE THE FIRST APPEL LATE AUTHORITY:- (A) I AM NOT IN POSSESSION OF ANY DOCUMENT IN RELAT ION TO OUR RETURN OF INCOME (B) I AM UNAWARE OF WHAT DOCUMENTS HAS BEEN FURNISHE D BY M/S. PANKAJ DANAWALA & CO. TO THE INCOME TAX DEPARTMENT. (C) I DO NOT HAVE ANY COPIES OF SUCH DOCUMENT. THE S AME HAS BEEN OBTAINED FROM YOUR OFFICE. (D) OTHER THAN DAILY CHARGES IN BANK ACCOUNT, CASH B ALANCES AND VARIOUS CURRENT ASSETS AND LIABILITIES IN NORMAL COURSE OF BUSINESS I DISOWN ANY OTHER INDISCRIMINATE ENTRIES OR BALANCES WHICH MAY HAVE B EEN SHOWN BY M/S. PANKAJ DANAWAL & CO. WITHOUT MY KNOWLEDGE OR PERMIS SION. 7. ON THE STRENGTH OF ALL THESE DETAILS, A PRAYER W AS MADE THAT THIS ISSUE BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER W ITH THE DIRECTION THAT WHETHER THE ASSESSEE HAS ACTUALLY MADE INVESTMENT I N M/S. SUNGOLD ENTERPRISE OR NOT; AND WHETHER THIS PAPER TRANSACTI ON HAS EVER BEEN CONSIDERED BY THE ASSESSEE FOR TAKING UNDUE ADVANTA GE OR IT IS MERELY ON THE PAPERS. THE LEARNED DEPARTMENTAL REPRESENTATIVE, O N THE OTHER HAND, RELIED UPON THE ORDER OF REVENUE AUTHORITIES BELOW. 8. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THOUGH SPECIFIC FACTS ARE NOT EM ERGING OUT FROM THE RECORD ITA NO. 2291/AHD/2008 CHIRAG VITHALBHAI DOBARIA VS. ITO FOR AY: 2000-01 4 PERTAINING TO THE PRESENT APPEAL, BUT BY VIRTUE OF OUR EXPERIENCE IN HEARING THE CASES RELATING TO SHRI PANKAJ DANAWALA, WE ARE CONSCIOUS OF THE FACT THAT SHRI PANKAJ DANAWALA HAS CREATED FICTITIOUS FILES I N THE NAME OF FICTITIOUS PERSONS. HE HAS TRIED TO BUILD CAPITAL FOR MANY PE RSONS IN ORDER TO TAKE UNDUE ADVANTAGE IN FUTURE. THE PRESENT CASE IS ALS O ONE OF THEM. THEREFORE, WE SET ASIDE THE IMPUGNED ORDERS AND RESTORE THIS I SSUE TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION. THE LEARNED ASSESSING OFFICER SHALL COLLECT COMPLETE DETAILS WITH REGARD TO THE ALLEGED INVESTMENT MADE BY THE ASSESSEE IN THE NAME OF M/S. SUNGOLD ENTERPRISE AND WHETHER THIS INVESTMENT WAS ACTUALLY MADE OR NOT. IT IS TO BE A SCERTAINED WHETHER THE ASSESSEE HAS TAKEN BENEFIT OF SUCH INVESTMENT IN SU BSEQUENT YEARS FOR REDUCING THE TAXABLE INCOME. THESE ASPECTS COULD B E VERIFIED AFTER LOOKING TO THE ASSESSMENT RECORD OF THE ASSESSEE FOR 3-4 YE ARS; I.E., EARLIER YEARS AS WELL AS SUBSEQUENT YEARS. THE ASSESSEE IS ALSO DIR ECTED TO SUPPLY THE COMPLETE COPIES OF THE RETURNS FOR TWO EARLIER ASSE SSMENT YEARS AND TWO SUBSEQUENT ASSESSMENT YEARS ALONG WITH SUPPORTING D OCUMENTS IN ORDER TO ASCERTAIN THE ACTUAL MODUS OPERANDI. THE LEARNED A SSESSING OFFICER SHALL DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER PROVI DING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 19 TH NOVEMBER, 2015 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 19/11/2015 BIJU T., PS ITA NO. 2291/AHD/2008 CHIRAG VITHALBHAI DOBARIA VS. ITO FOR AY: 2000-01 5 !&''()(*' / 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