Shri Ramchandra B. Finaviya, Ahmedabad V. The Income Tax Officer, Ward-7(2)(4), Ahmedabad

ITA 2400/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8024 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 21-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Unexplained investment
• Section: 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE: SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER SHRI RAMCHANDRA B. FINAVIYA, 7, SARASWATI APARTMENT OPP. MALINIWADI, NR. HINGLAJIMATA TEMPLE, INDIA COLONY, THAKKARBAPANAGAR, AHMEDAADB - 382350 PAN: AAGPF6518A (APPELLANT) VS THE ITO, WARD - 7(2)(4), AHMEDABAD (RESPONDENT) REVENUE BY : S H RI V.K. SINGH , SR. D . R. ASSESSEE BY: S H RI KARAN SHAH , A.R. DATE OF HEARING : 11 - 06 - 2 018 DATE OF PRONOUNCEMENT : 25 - 06 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2012 - 13 , ARIS ES FROM ORDER OF THE CIT(A) - 7 , AHM EDABAD DATED 05 - 07 - 2016 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE A SSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. THE LD. CIT (A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL. HE OUGHT TO HAVE ALLOWED THE APPEAL FULLY IN ACCORDANCE WITH THE GROUNDS OF APPEAL RAISED BY THE APPELLANT BEFORE HIM. I. ADDITION U/S.69 OF THE ACT - RS.8.00.000/ - I T A NO . 2400 / A HD/20 16 A SSESSMENT YEAR 2012 - 13 I.T.A NO. 2400 /AHD/20 16 A.Y. 2012 - 13 PAGE NO SHRI RAMCHANDRA B. FINAVIYA VS. ITO 2 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.8,00,000/ - U/S. 69 OF THE ACT MADE BY THE LD. A.O WHILE MAKING AN OBSERVATION THAT THE CONTENTION OF APPELLANT CANNOT BE ACCEPTED AND IT IS EVIDENT THAT THE CAPITAL ACCOUNT PROVIDED BY APPELLANT SHOWING THAT IT HAD TAKEN CASH OF RS. 8 LAKHS FROM PARTNERSHIP FIRM WAS FALSE. 2. THE LD. CIT(A) HAS FAILED TO PROPERLY CONSIDER THE SUBMISSION FILED BY THE APPELLANT AS WELL AS VARIOUS JUDICIAL PRONOUNCEMENTS RELIED UPON THEREIN. 3. THE BRIEF CASE OF THE CASE IS THAT RETURN OF INCOME DECLARING INCOME OF RS. 3 , 97 , 430/ - WAS FILED ON 29 TH MARCH, 2013. SUBSEQUENTLY, THE CASE WAS SELECTED UNDER SCRUTINY BY ISSUING OF NOTICE U/S. 143(2) OF THE ACT ON 14 TH AUGUST, 2013. ON SCRUTINY, THE ASSESSING OFFICER NOTICED THAT ASSESSE E HAS MADE INVESTMENT IN LAND AT SARGASAN, GANDHINAGAR JOINTLY WITH 8 OTHER CO - OWNERS WHEREIN THE SHARE OF INVESTMENT IN THE LAND OF THE ASSESSEE WAS RS. 10 , 13 , 750/ - . T HE ASSESSEE CLAIMED THAT HE HAS WITHDRAWN CASH OF RS. 8 LACS FROM HIS CAPITAL ACCOUNT WI TH THE PARTNERSHIP FIRM SHREEJI CORPORATION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS T HE ASSESSING OFFICER HAS VERIFIED FROM THE COPY OF R ETURN OF INCOME OF M/S. SHREEJI CORPORATION FOR ASSESSMENT YEAR 2011 - 12 AND NOTICED THAT AS PER CAPITAL ACCOUNT OF THE ASSESSEE WITH THE PARTNERSHIP FIRM NO CASH WITHDRAWAL W AS REFLECTED IN THE CAPITAL ACCOUNT OF THE ASSESSEE. CONSEQUENTLY, THE ASSESSING OFFICER HAS MADE ADDITIO N OF RS. 8 LACS AS UNEXPLAINED INVESTMENT AS PER SECTION 69 OF THE ACT. 4. AGGRIEVED ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). T HE LD. CIT(A) HAS SUSTAINED THE ADDITION REITERATING THE SAME REASON AS MENTIONED BY THE ASSESSING OFFICER. DURING THE C OURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COUNSEL HAS FURNISHED COPY OF CAPITAL ACCOUNT OF THE ASSESSEE IN T HE BOOKS OF ACCOUNTS OF SHREEJI CORPORATION PARTNERSHIP FIRM DEMONSTRATING THAT ASSESSEE HAS WITHDRAWN WERE 3 LACS AND 5 LACS IN CASH ON 17 TH FEB, 2011 AND 26 TH MARCH, 2011 RESPECTIVELY OUT OF THE CAPITAL ACCOUNT MAINTAINE D WITH THE PARTNERSHIP FIRM SHREEJI CORPORATION DURING THE FINANCIAL YEAR 2010 - 11. HE HAS ALSO FURNISHED COPY OF BALANCE SHEET AS ON 31 ST MARCH, 2 011 OF THE PARTNERSHIP FIR M SHREEJI CORPORATION INDICATING TOTAL CAPITAL OF THE TWO PARTNERS REFLECTED AT RS. 13 , 82 , 475.82 AND ASSESSEE S CAPITAL WAS SHOWN AT RS. 11 , 25 , 949.07/ - . HE HAS I.T.A NO. 2400 /AHD/20 16 A.Y. 2012 - 13 PAGE NO SHRI RAMCHANDRA B. FINAVIYA VS. ITO 3 ALSO FILED COPY OF INCOME TAX RETURN FILED BY THE PARTNERSHIP FIRM FOR THE ASSESSMENT YEAR 20 11 - 12 SHOWING TOTAL CAPITAL OF THE PARTNERS AT RS. 13 , 82 , 476/ - . HE HAS CONTENDED THAT ALL THESE DOCUMENTS AND INFORMATION REQUIRED TO BE EXAMINED TO PROVE THE GENUINENESS OF T HE CLAIM OF THE ASSESSEE. ON THE OTHER HAND, THE ASSESSING OFFICER HAS SUPPORTE D THE ORDER OF LOWER AUTHORITIES. 5. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS CLAIMED THAT SOURCE OF INVESTMENT OF RS. 8 LACS IN THE LAND WAS OUT OF THE WITHDR AWAL MAD E F R O M THE PARTNERS CAPITAL A/C IN THE PARTNERSHIP FIRM M/S SHREJI CORPORATION. THE ASSESSING OFFICER HAS STATED THAT A S PER THE CAPITAL A/C OF T H E ASSESSEE PROV ID ED WITH THE RE T URN OF I N CO M E OF THE PARTNERSHIP FIRM M/S. S H REEJI CORPORATION FOR ASSESSMEN T YEAR 2011 - 12 THERE WAS NO CASH WITHDRAWAL OF RS . 8 LACS MADE BY THE ASSESSE OF THE CAPITAL A/C . HOWEVER, DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US THE LD. COUNSEL HAS SUBMITTED COPY OF INCOME TAX RETURN FILED BY THE PARTNERSHIP FIRM M /S S HREEJI C ORPO RATION FOR ASSESSMENT YEAR 2011 - 12 SHOWING TOTAL CAPITAL OF THE PARTNER AT RS.13,82,476/ - . HE HAS ALSO SUBMITTED COPY OF BALANCE SHEET OF THE PARTNERSHIP FIRM IN WHICH THE CAPITAL A/C OF THE PARTNER WAS SHOWN AS ON 31/03/2011 AS UNDER: - NAME OF PARTNER CREDIT BALANCE OF CAPITAL A/C. (I) GHANSHYAMBHAI B. FINAVIA RS. 2,56,526.075 (II) RAMCHANDRA B. FINAVIYA RS. 11,25,949.07 HE HAS ALSO SUBMITTED COPIES OF THE PARTNERS CAPITAL A/C. IN THE BOOKS OF PARTNERSHIP FIRM RE FLECTING CASH WITHDRAWAL AS CITED ABOVE IN THIS ORDER . AF TER PERUSAL OF TH E DETAIL S FI L E D AND MATERIAL ON RECORD WE OBSERVE THAT IT IS NOT FEASIBLE TO ADJUDICATE THIS ISSUE ON ME R IT WITHOUT EXAMINATION OF CORRECTNESS OF T H E MATERIAL /DETAIL FURNISHED DURIN G THE CO URS E OF APPELLATE PROCEEDINGS BEFORE US , THEREFORE, WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING DENOVO AFTER VERIFICATION /EXAMINATION OF THE CORRECTNESS AND GENUINENESS OF THE I.T.A NO. 2400 /AHD/20 16 A.Y. 2012 - 13 PAGE NO SHRI RAMCHANDRA B. FINAVIYA VS. ITO 4 MATERIAL FURNISHED BY THE AS SESSEE. ACCORDI NGLY , THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 25 - 06 - 201 8 SD/ - SD/ - ( MADHUMITA ROY ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 25 /06 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,