Shri Chandulal Amrutlal Shah(HUF), Surat V. The Income tax Officer,Ward-9(1), Surat

ITA 235/AHD/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0354 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-08-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 27-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Gift; Opportunity of being heard; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.235/AHD/2009 ASSESSMENT YEAR:2001-02 DATE OF HEARING: 19.8.09 DRAFTED:20.8.09 SHRI CHANDULAL AMRUTLAL SHAH (HUF), BUNG NO. 74, SAIFEE SOCIETY, L.H. ROAD, SURAT PAN NO.AAAHC8116R V/S . INCOME TAX OFFICER, WARD-9(1), SURAT (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI M.K. PATEL, AR RESPONDENT BY:- SHRI C.K. MISHRA, DR O R D E R THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-V, SURAT IN APPEAL NO.CAS-V/36 5/2006-07 DATED 27-11-2008. THE ASSESSMENT WAS FRAMED BY THE ITO, WAQRD-9(1), S URAT U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDER DATED 26-12- 2006 FOR THE ASSESSMENT YEAR 2001-02. 2. IN THIS APPEAL OF THE ASSESSEE, THE ASSESSEE HAS RAISED THE FIRST ISSUE AS REGARDS TO REOPENING AND SUBSEQUENTLY THE ADDITION OF RS.52,500/- ON PROTECTIVE BASIS AND THEREAFTER ADDITION OF RS.40,000/- AS UNA CCOUNTED INVESTMENT IN FDRS. FOR THIS, THE ASSESSEE HAS RAISED THE FOLLOWING EFF ECTIVE GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN I SSUING NOTICE U/S.148 OF THE ACT AND REOPENING THE ASSESSMENT. ITA NO.235/AHD/2009 A.Y. 2001-02 SH CHANDULAL A SHAH V. ITO, WD-9(1) SURAT PAGE 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED CONFIRMING THE ACTION OF THE ASSESSING OFFICE IN MA KING ADDITION OF RS.52,500/ AS INCOME ON PROTECTIVE ASSESSMENT BASIS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN M AKING ADDITION OF RS.40,000/- AS ALLEGED UNACCOUNTED INVESTMENT IN FD R. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STAT ED THAT THIS ADDITION IS ARISEN ON ACCOUNT OF SURVEY CONDUCTED BY THE INVESTIGATION WING OF THE DEPARTMENT U/S.133A OF THE ACT ON SHRI PANKAJ DANAWALA, THE TH EN CHARTERED ACCOUNTANT OF THE ASSESSEE ON 11-03-2005. DURING THE COURSE OF SURVE Y ON SHRI PANKAJ DANAWALA, IT WAS FOUND THAT HE HAS CREDITED THE AMOUNTS OF CAPIT AL BUILD UP CASES AND THE MODUS OPERANDI IS FRAUDULENT AND IN THESE CASES FALLS IN TWO CATEGORIES. THE FIRST CATEGORY OF INFLATION OF OPENING CAPITAL SUBSTANTIALLY AND I N THE SECOND CATEGORY HE PREPARED THE PROFIT AND LOSS A/C BY RECEIVING MERELY GIFTS A ND INCOME FROM INTEREST / BROKERAGE / COMMISSION ETC. FOR MANY YEARS AND THIS CREATED S UBSTANTIALLY CAPITAL IN THE CASE OF THE ASSESSEE ALSO. ACCORDING TO LD. COUNSEL FOR THE ASSESSEE, THE ASSESSING OFFICER AFTER DISCUSSING THE VARIOUS STORIES, MADE ADDITION OF CASH DEPOSITED IN THE BANK ACCOUNT AS UNEXPLAINED INCOME OF THE ASSESSEE. LD. COUNSEL FAIRLY STATED THAT THE AO HAS MADE THIS ADDITION BY WAY OF EX PARTE ORDER PASSED U/S.144 OF THE ACT AND EVEN BEFORE THE CIT(A) NONE REPRESENTED ON BEHALF O F ASSESSEE AND THE CIT(A) JUST ON THE BASIS OF ASSESSMENT ORDER CONFIRMED THE ADDI TION WITHOUT GIVING ANY INDEPENDENT FINDING. IN VIEW OF THIS, LD COUNSEL R EQUESTED THE BENCH THAT THE MATTER BE SET ASIDE TO THE FILE OF ASSESSING OFFICER TO BE DECIDED AFRESH DE NOVO AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, SO THAT HE CAN PLACE THE EVIDENCE BEFORE THE AO IN HIS CASE. ON Q UERY FROM BENCH, LD. DEPARTMENTAL REPRESENTATIVE FAIRLY CONCEDES THAT TH IS ISSUE CAN BE REMITTED BACK TO THE FILE OF ASSESSING OFFICER AS HE AGREED THAT THE RE WAS NO OPPORTUNITY GIVEN TO THE ASSESSEE TO REPRESENT THE CASE BEFORE EITHER OF THE AUTHORITIES BELOW. ITA NO.235/AHD/2009 A.Y. 2001-02 SH CHANDULAL A SHAH V. ITO, WD-9(1) SURAT PAGE 3 4. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THIS ISSUE TO THE FILE OF ASSESSING OFFICER AS INDICATED ABOVE AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSED. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 09/10/2009 SD/- (MAHAVIR SING H) (JUDICIAL MEMBER) AHMEDABAD, DATED :09/10/2009 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- V, SURAT 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD