Alkeshbhai B.Patel, Baroda V. The ACIT.,Cent,Circle-1, Baroda

ITA 2376/AHD/2009

• Counselvise Citation: 237620514 RSA 2009
• Duration Of Justice: 2 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-10-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 10-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; Principle of natural justice

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD , . , !' BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A MOHON ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2376/AHD/2009 $ %$ $ %$ $ %$ $ %$ / // / ASSESSMENT YEAR:-2007-08 ALKESHBHAI B PATEL, RATAM BUNGLOW, B/S. ADARSH GENERAL HOSPITAL, GOTRI ROAD, BARODA PAN NO.ACXPP5100F / V/S . ACIT, CENTRAL CIRCLE-1, BARODA &'/ APPELLANT .. ()&'/ RESPONDENT &'/ APPELLANT SMT. URVASHI SHODHAN, AR ()&' * + ! / BY RESPONDENT DR. K. SHYAM PRASAD, SR-DR , * -' / DATE OF HEARING 11-10-2011 .% * -' / DATE OF PRONOUNCEMENT / 10/2011 !/ !/ !/ !/ / // / O R D E R . , !' /PER A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER:- THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY T HE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-IV, AHMEDABAD DATED 12-02- .ITA NO.2376/AHD/2009 A.Y. 2007-08 ALKESHBHAI B PATEL V. ACIT, CC-1 BRD PAGE 2 2009 FOR THE ASSESSMENT YEAR 2007-08. THE APPELLANT IS AN INDIVIDUAL HAVING INCOME FROM SALARY, SHARE OF PROFIT AND INTE RESTS FROM FIRM, AND INCOME FROM OTHER SOURCES. THE ASSESSEE FILED HIS R ETURN OF INCOME ON 31-10-2007 DECLARING AN INCOME OF RS.13,53,690/- PU RSUANT TO A SEARCH ACTION U/S.132 OF THE INCOME-TAX ACT, 1962 (THE AC T FOR SHORT) WHICH WAS CARRIED OUT IN THE CASE OF M/S PATEL CHIMANLAL VRAJ LAL GROUP AND THE ASSESSEE ON 31-05-2006. 2. DURING THE COURSE OF SEARCH CASH TO THE EXTENT O F RS.2,32,140/- WAS FOUND, OUT OF WHICH THE LD.A.O HELD THAT AN AMO UNT OF RS. 97,400/- TO BE UNEXPLAINED SINCE THE ASSESSEE COULD NOT PROD UCE CONFIRMATION LETTERS FROM THE PARTIES, AND VOUCHERS FOR SALE OF OLD AIR CONDITIONERS, OLD FURNITURE AND SCRAP. THE ASSESSEE HAD EXPLAINED THE SOURCE FOR THE CASH IN HAND AS MENTIONED BELOW:- 1 CASH BELONGING TO MR. ANUJ B PATEL RS.44,000 2 CASH BELONGING TO SMT. SHAKUNTALABEN A PATEL RS.35,000 3 CASH RECEIVED BY SELLING OF 2 OLD AC RS 8,400 4 CASH RECEIVED BY SELLING OF OLD FURNITURE AND SCRAP. RS.10,000 -------------- TOTAL RS. 97,400 ========= 3. THE ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(APPEALS) AND FILED THE RELEVANT CONFIRMATION STATEMENTS WITH RESPECT T O CASH RECEIVED FROM VARIOUS PARTIES. HOWEVER THE LD. CIT(A) DID NOT TAK E NOTE OF THE SAME CITING RULE 46A OF THE INCOME-TAX RULE, 1962. ACCOR DING TO HIM, THE APPELLANT IS NOT COVERED BY THE EXCEPTION MENTIONED IN THE RULE BECAUSE THE ASSESSEE HAD NOT PRODUCED THE CONFIRMATION LETT ERS BEFORE THE A.O .ITA NO.2376/AHD/2009 A.Y. 2007-08 ALKESHBHAI B PATEL V. ACIT, CC-1 BRD PAGE 3 EVEN AFTER PROVIDED WITH SUFFICIENT OPPORTUNITY BY THE A.O. BRUSHING ASIDE THE CONTENTION OF THE ASSESSEE THAT HE HAD PRODUCED THE CONFORMATION LETTERS BEFORE THE A.O WHO HAD UNJUSTLY IGNORED THE SAME, THE LD.CIT(A) CAME TO THE CONCLUSION THAT THE ASSESSEE WAS IN POS SESSION OF UNEXPLAINED CASH TO THE EXTENT OF RS. 97,400/- AND CONFIRMED THE ORDER OF LD. ASSESSING OFFICER. 4. BEFORE US THE LD. AR FILED PAPER BOOK OF 1 TO 16 PAGES WHICH CONTAINED WRITTEN SUBMISSION FILED BEFORE LD. CIT(A ), THE CONFIRMATION STATEMENTS FROM SHRI ANUJ B PATEL AND SMT. SHAKUNTA LABEN A PATEL WITH SUPPORTING DOCUMENTS AND THE STATEMENT OF THE ASSES SEE RECORDED U/S. 132(4) OF THE ACT DATED 31/05/2006 ETC. THE LD. AR VEHEMENTLY ARGUED THAT ALL THESE DOCUMENTS WERE PRODUCED BEFORE THE L D. AO AT THE TIME OF THE ASSESSMENT PROCEEDINGS BUT HE DID NOT TAKE NOTE OF THE SAME. LD. AR FURTHER SUBMITTED THAT ALL THE RELEVANT DOCUMENT S MENTIONED ABOVE WERE ALSO PRODUCED BEFORE THE LD. CIT(A) WHO UNJUST LY DISMISSED THE APPEAL OF THE ASSESSEE CITING RULE 46A OF THE I.T. RULE, 1962 ON THE BELIEF THAT THE ASSESSEE HAD NOT PRODUCED THE DOCUM ENTS BEFORE THE AO EVEN AFTER SUFFICIENT OPPORTUNITIES WERE PROVIDED. THE LD. AR STOUTLY ARGUED THAT THE ASSESSEE HAD FILED THE CONFIRMATION LETTERS FOR THE RECEIPT OF CASH BEFORE THE AO AND FURTHER SUBMITTED THAT TH E SALE OF OLD AC, FURNITURE AND SCRAP FETCHED ONLY PETTY AMOUNT AND P RODUCING VOUCHERS FOR THE SAME IS QUIT UNWARRANTED. 5. LD. DR OPPOSED TO THE SUBMISSION OF LD. AR AND P RAYED THAT THE LD. AO AND LD. CIT(A) WERE JUSTIFIED BY MAKING THE ADDITION OF RS.94,400/- AND RELIED UPON THEIR ORDER. .ITA NO.2376/AHD/2009 A.Y. 2007-08 ALKESHBHAI B PATEL V. ACIT, CC-1 BRD PAGE 4 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE PAPER BOOK SUBMITTED BY THE APPELLANT CONSISTING OF THE CONFIRMATION LETTERS FROM SHRI ANUJ B PATEL AND SMT. SHAKUNTALAB EN A PATEL FOR AN AMOUNT OF RS.44,000/- AND RS.35,000/- RESPECTIVELY WITH NAME AND ADDRESS OF THE PARTIES. THE LD. CIT(A) ADMITS THAT THE ASSESSEE HAVE FILED THE CONFIRMATION STATEMENTS BEFORE HIM HOWEVE R HE HAD REJECTED THE SAME CITING RULE 46 OF THE INCOME TAX RULES 196 2 ON THE BELIEF THAT THE ASSESSEE HAD NOT PRODUCED THE SAME BEFORE THE A O. FROM THE FACTS OF THE CASE WE ARE OF THE OPINION THAT THE LD.CIT(A ) HAS FAILED TO OBSERVE THE PRINCIPLES OF NATURAL JUSTICE. LD.CIT(A) OUGHT TO HAVE OBTAINED A REMAND REPORT TO VERIFY THE SUBMISSIONS OF THE APPE LLANT AND GIVEN HIM A FAIRE OPPORTUNITY TO ESTABLISH HIS CLAIM ON THE VER ACITY OF THE CONFIRMATION STATEMENTS, INSTEAD HE HAS SIMPLY DISBELIEVED THE S UBMISSIONS AND THE CONFORMATION STATEMENT FURNISHED BY THE ASSESSEE. O N PERUSING THE CONFIRMATION STATEMENTS FILED BY THE ASSESSEE, THE SUBMISSIONS OF THE LD.AR AND THE NATURE OF THE TRANSACTIONS INVOLVED W E ARE OF THE OPINION THAT THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CA SH OF RS.97,400/- SHOULD BE DELETED IN THIS CIRCUMSTANCE. IT IS ORDER ED ACCORDINGLY. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 0 !/ * .% 1 2 31 / 10 /2011 '! 6 * 7, THIS ORDER PRONOUNCED IN OPEN COURT ON 31/10/ 2011 . SD/- SD/- ( , ) ( . , !' ) (MUKUL KUMAR SHAWART) A. MOHAN ALANKAMONY (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) 1 2- 31/10/2011 DKP* .ITA NO.2376/AHD/2009 A.Y. 2007-08 ALKESHBHAI B PATEL V. ACIT, CC-1 BRD PAGE 5 !/ !/ !/ !/ * ** * (9 (9 (9 (9 :!9% :!9% :!9% :!9% / COPY OF ORDER FORWARDED TO:- 1. &' / APPELLANT 2. ()&' / RESPONDENT 3. < / CONCERNED CIT 4. <- / CIT (A) 5. 9?7 ( , , / DR, ITAT, AHMEDABAD 6. 7A$ B0 / GUARD FILE. BY ORDER/ !/ !, C/ D ,