The DCIT, Central Circle-1(1), Ahmedabad V. Shri Umang H. ThaKkar, Ahmedabad

ITA 2407/AHD/2008

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0397 (ITAT-AHMEDABAD)
• Duration Of Justice: 14 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-09-2022
• Assessment Year: 2003-2004
• Appeal Filed On: 24-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained investment; Unexplained expenditure; Depreciation; Opportunity of being heard; Valuation report; Set aside
• Section: 68; 69; 271(1)(c); 142(1); 69B; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD BEFORE SHRI PRAMOD M. JAGTAP, VICE PRESIDENT & Ms. MADHUMITA ROY, JUDICIAL MEMBER I .T .A . N o s . 2 4 0 6 & 2 40 7/ A h d/2 00 8 ( As s e s s me nt Y ea rs : 20 01 - 0 2 & 20 0 3 - 0 4) DC I T C e ntr a l C ir c le - 1 ( 1 ), Ah me da bad Vs . S h r i U m an g H Th a k ka r 3 0 5, Sa h aj a n a n d P l a za , B h att a Ch ar R as ta , Pal d i , A h m e d a b ad [ P AN N o. A A V P T 8 62 1R ] (Appellant) .. (Respondent) I .T .A . N o s . 2 1 4 7 & 2 14 8/ A h d/2 00 8 (A s se s s m e n t Y e a r s : 20 02 - 0 3 , 2 00 3- 04 ) Sh r i U ma n g Hi r a la l Th a k k a r Dh ar m ad e v H ou se , Sh ya m al C r o s s R o a d , Sa te ll ite , Ah me da bad-3 80 01 5 Vs . D C I T C e ntr al C ir c le - 1 ( 1 ) , A h m e d a b ad [ P AN N o. A A V P T 8 62 1R ] (Appellant) .. (Respondent) I .T .A . N o . 25 98 /A h d /2 00 8 ( A s se ss m e nt Y e a r : 20 02- 0 3 ) DC I T C e ntr a l C ir c le - 1 ( 1 ), Ah me da bad Vs . S h r i U m an g H i r a la l Th a k ka r 3 0 5, Sa h aj a n a n d P l a za , B h attj a C h a r R a s ta , Pa ld i, A h m e d a b ad [ P AN N o. A A V P T 8 62 1R ] (Appellant) .. (Respondent) I .T ( S S) .A . N o . 1 9 5/ A h d/ 2 0 14 ( A s se ss m e nt Y e a r : 20 02- 0 3 ) Sh r i U ma n g Hi r a la l Th a k k a r , Dh ar a m D e v Ho us e , Sh ya m al C r o s s R o a d , Sa te ll ite , Ah me da bad-3 80 01 5 Vs . D C I T C ir c l e- 11 , A h m e d a b ad [ P AN N o. A FS PS 5 89 0P ] (Appellant) .. (Respondent) ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 2 - Assessee by : Shri Bandish Soparkar, A.R. Revenue by : Shri Vijay Kumar Jaiswal, CIT DR D a t e of H ea r i ng 07.09.2022 D a t e of P r o no u n ce me nt 19.10.2022 O R D E R PER MADHUMITA ROY, JM: All the cross appeals are arising out of the different orders dated 28.03.2008, 31.03.2008 & 18.02.2014 passed by the Ld. CIT(A)-III & XVI, Ahmedabad arising out of the orders passed by the DCIT, Central Circle-1(1), Ahmedabad dated 29.12.2006 & penalty order dated 25.10.2016 passed by the DCIT, Circle-11 under Section 153A(b) and 158BFA(2) of the Income Tax Act, 1961(hereinafter referred to as “the Act”) for A.Y. 2001-02 to 2002-03 & 2003-04. Since all the assessment relating to the same assessee and the grounds are identical these are heard analogously and are being disposed by a common order. ITA No. 2406/Ahd/2008 (A.Y. 2001-02)(Revenue’s Appeal):- 2. The grounds of appeal raised by the Revenue are as under: “1. The CIT(A) has erred in law and on facts in admitting the fresh evidence u/s. 46A without considering the A.O.’s objection that none of the conditions mentioned under that Rule was satisfied. 2. The CIT(A) has erred in law and on facts in deleting the additions of Rs. 44,22,190/- and Rs. 20,29,148/- made on account of unexplained capital and unexplained cash credits, respectively without considering the factual position that the assessee failed to prove identity and capacity of the depositors and genuineness of the transactions. 3. The CIT(A) has erred in law and on facts in deleting the addition of Rs. 1,23,634/- made on account of unverifiable repair expense without considering the findings of the A.O. that the assessee failed to prove these expenses by supporting evidence. ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 3 - 4. The CIT(A) has erred in law and on facts in deleting the addition of Rs.4,25,771/- made on account of disallowance of interest for non-business use of the borrowed funds, without considering the fact that borrowed funds were used for non- business purpose. 5. The CIT(A) has erred in law and on facts in deleting the addition of Rs.11,34,930/- made on account of unexplained investment in residential house and hotel building without considering and appreciating the valuation report of District Valuation Officer. 6. The CIT(A) has erred in law and on facts in not allowing opportunity of being heard to the Valuation Officer while deleting the addition made which were based on valuation report. 7. The CIT(A) has erred in law and on facts in deleting the addition of Rs.1,01,44,542/- made on account of undisclosed receipts from m/s. Ghanshyam Builders being the proprietory concern of assessee based on the seized material inventorised as annexure A-18. The CIT(A) has not considered the seized material as well as the provisions of section 132(4) of the Act. 8. The CIT(A) has erred in law and on facts in deleting the addition of Rs. 13,00,000/- made on account of undisclosed receipts relating to Ghanshyam Builders, without considering that the documents which indicate receipts of Rs.1 lac each by M/s. Ghanshyam Builders. 9. On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the A.O. 10. It is, therefore, prayed that the order of the CIT(A) be set aside and that of the A.O. be restored to the above extent.” 3. Ground Nos. 1 to 6 raised in the instant appeal have allowed by the Coordinate Bench by and under its order dated 11.09.2019 in assessee’s own case as argued by the Ld. A.R. appearing for the assessee though the Ld. DR relied upon the order passed by the authorities below. The copy of the said order passed by the Coordinate Bench dated 11.09.2019 has been duly placed on record before us by the parties. Upon perusal of the said order it appears that the above issues have been decided in favour of the assessee and in the absence of any changed circumstances respectfully relying upon the same we do not find any ambiguity in the order passed by the Ld. CIT(A). Thus, we find no merit in the appeal preferred by the Revenue on these issues. These grounds of appeals preferred by the Revenue are, therefore, dismissed. ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 4 - 4. Ground No.7:- The issue relating to addition of Rs. 1,01,44,542/- made on account of undisclosed receipts from M/s. Ghanshyam Builders being the proprietary concern of the assessee based on the seized material inventorized as Annexure A-18 has been ultimately decided in favour of the Revenue. Subsequently, the same was deleted by the Coordinate Bench in appeal being ITA No. 1963/Ahd/2006 for A.Y. 1998-99 preferred by the assessee which has further been confirmed by the Hon’ble High Court in Tax Appeal No. 1971 of 2009 as the argued advanced by the Ld. A.R. copy of each of the said order have duly been submitted before us. 5. The Ld. D.R. has not been able to controvert such submission made by the Ld. A.R. 6. Upon perusal of the above orders it appears that this ground has been allowed by the Coordinate Bench and subsequently affirmed by the Hon’ble Jurisdictional High Court. In the absence of any changed circumstances we do not find any reason to deviate from such stand taken by the Hon’ble Court. This ground of appeal preferred by the Revenue is found to be devoid of any merit and thus, dismissed. 7. Ground No.8:- Deleting the addition of Rs. 13,00,000/- made on account of undisclosed receipt relating to M/s. Ghanshyam Builders is under challenged before us. 8. We have heard the rival submissions made by the respective parties, and we have also perused the relevant materials available on record. ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 5 - 9. These are 16 th monthly receipt of Rs. 1,00,000/- each. The Ld. AO made the addition of the entire amount which was, in turn, deleted by the Ld. CIT(A). Hence, the instant appeal before us. 10. While dealing with the matter the Ld. CIT(A) observed as follows: “15. The next ground of appeal agitates the addition of Rs.13 lakhs made on the basis of pages 34 to 49 of the aforementioned annexure A-18. These are 16 monthly receipts of Rs.1 lakh each (one for each month beginning from April, 2000 to June, 2001) on the letter hed of Ghandhyam Builders and identically worded. Thus the receipts read “Received with thanks from Mr. Dodia Jitendrasinh Natversinh, Rs.1,00,000 – in words Rs. one lacs only By Cash For the part payment of Shop No.FF-10 Swaminarayan Avenue, Vasna, Ahmedabad.” In response to the various quarries of the A.O. it was informed vide rep;y dated 28/11/2006 that these were unsigned receipts, not acted upon. The A.O. however held that the assessee had cash obtained payment against the sale of shop but the corresponding receipts had not been handed over. Further even if the shop was not sold, as stated by the assessee, then also it has not been disclosed in its stock. The A.O. therefore felt that the amount of Rs.13 lakhs was received in the period relevant to A.Y. 2001-02 and Rs.3 lakhs in the period relevant to A.Y. 2002-03. Hence the addition(s). 15.1 Before me it was contended that the receipt(s) were unsigned incomplete and had no evidentiary value. The recipient mentioned therein i.e. Dodia Jitendrasingh Natwarlal, Has also by way of his confirmation affirmed that he had not made any such payment. It was explained that Mr. Dodia wanted to raise a bank loan for a higher amount than the actual payment to be made. He had requested the staff member to prepare the receipt(s) so that he could achieve his purpose. But the appellant, when he came to know of it, had refused to issue such receipts in order to accommodate Mr. Dodia in obtaining a higher bank loan. Consequently the originally prepared but unsigned receipts had been lying since then. If it had been acted upon through transaction, the receipt would not have remained and found. If the A.O. had any doubts, he could have directly verified it with Mr. Dodia, issue summons, etc. As such, the addition was unjustified. 15.2 The contentions were carefully considered and copies of the stated receipts(filed with paper book) perused carefully. It is seen that the explanation furnished was plausible. The receipts were unsigned. The A.O. has not established that the consideration was understand. It also stands to reason that the receipts would have changed hands in case the transactions mentioned were enacted. In such a case, the receipts would have been given to Mr. Dodia. Also these are unsigned and in their present form, lack evidentiary value. In the circumstances, the addition made by the A.O. was hasty in nature and therefore not sustainable. It is deleted and the related ground of appeal is allowed.” ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 6 - 11. It was argued by the Ld. A.R. that the identical ground of appeal on the identical facts and circumstances of the matter have been ultimately decided in favour of the assessee in the appeal preferred by Revenue by the Hon’ble High Court by its order dated 18.10.2011 copy whereof has also been submitted before us. 12. The Ld. DR has not been able to controvert such submission made by the Ld. A.R. 13. In the absence of any changed circumstances respectfully relying upon the order passed by the Hon’ble Jurisdictional High Court we do not find any merit in this ground of appeal preferred by the Revenue. Hence, the same is dismissed. 14. Ground Nos. 9&10 are general in nature and no need to pass any separate order. 15. Therefore, ITA No. 2406/Ahd/2008 for A.Y. 2001-02 is preferred by the Revenue is dismissed. ITA No. 2147/Ahd/2008(A.Y. 2002-03)(Assessee’s Appeal):- 16. Grounds of appeal raised by the assessee are as under: “1. The learned Commissioner of Income Tax (Appeals) has erred in confirming the disallowance made by the A.O. of Rs. 28,959/- for the alleged excess depreciation claimed by the appellant. 2. The learned Commissioner of Income Tax (Appeals) has erred in confirming the disallowance of Rs.12,986/- made by the A.O. @ 20% of the expenses on telephone/mobile. 3. The learned Commissioner of Income Tax (Appeals) has erred in partly confirming the addition made by the Assessing Officer u/s. 69B of the Act for the alleged unexplained investments i.e. to the extent of Rs. 24,45,842/- for construction of Sqaminarayan Farm residence and to the extent of Rs. 28,55,728/- in construction ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 7 - of Hotel Neelkanth out of the total addition made of Rs. 1,20,97,911/- i.e. Rs. 2827928/- and Rs. 9269983/- respectively. 4. The Appellant craves leave to add, alter, amend or modify any of the grounds of appeal on or before the date of hearing of appeal.” 17. It is submitted by the Ld. A.R. that all the grounds preferred in the appeal by the assessee are covered in assessee’s own case by the Coordinate Bench in ITA No. 2146/Ahd/2008 for A.Y. 1999-2000 order dated 11.09.2019. Copy of the said order passed by the Coordinate Bench has also been submitted before us upon perusal of which such submission found to be correct. 18. The Ld. D.R. has also not been able to controvert such submission made by the Ld. A.R. 19. Hence, in the absence of any changed circumstances we do not find any reason to deviate from the stand taken by the Coordinate Bench. Thus, respectfully relying upon the same we allow these grounds of appeal preferred by the assessee. Assessee’s appeal is, therefore, allowed. 20. Therefore, ITA No. 2147/Ahd/2008 for A.Y. 2002-03 is preferred by the assessee is allowed. ITA No. 2598/Ahd/2008 (A.Y. 2002-03)(Revenue’s Appeal):- 21. Grounds of appeal raised by the Revenue are as under: “1. The CIT(A) has erred in law and on facts in admitting fresh evidences under Rule 46A without considering the objection of the Assessing Officer that none of the conditions mentioned under that rule were satisfied. 2. The CIT(A) has erred in law and on facts in deleting the addition of Rs.32,77,596/- and Rs.31,90,840/-made under Section 68 of the Act on account of unexplained capital and unexplained cash creditors respectively, without considering the factual position that the assessee failed to prove the identity and capacity of the depositors and the genuineness of the transaction with conclusive evidences. ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 8 - 3. The CIT(A) has erred in law and on facts in deleting the addition of Rs.3,63,284/- made on account of disallowance of interest for non business use of borrowed funds without considering the fact that borrowed funds were used for non business purposes. 4. The CIT(A) has erred in law and on facts in deleting the addition of Rs. 16,51,490/- made on account of undisclosed income from Swaminarayan Avenue Project constructed by M/S. Ghanshyam Builders being the proprietory concern of the assessee. This addition was made on the basis of entries recorded on seized documents Pages 84, 95, 97, 98, 22 to 35 and 34 to 49 of Annexure A-18 but the CTT(A) has ignored the content of the seized material and relationship with the assessee's business. 5. The CIT(A) has erred in law and on facts in deleting the addition of Rs.3 lacs made on account of undisclosed income from sale of Shop No.FF-10, Swaminarayan Avenue bated on the seized documents pages 34 to 49 of Annexure A-18, without considering the contents of the seized document which clearly specifies that the assessee had received cash in respect of the said shop. 6. The CIT(A) has erred in law and on facts in restricting the addition of Rs.28,27,928/- to Rs.24,45,000/- and Rs.92,70,027/- to Rs.28,55,000/- in respect of unexplained investment in Swaminarayan Residence and Hotel Nilkanth respectively without considering and appreciating the valuation report of the District Valuation Officer and also without giving him opportunity of being heard. 7. On the fact and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the A.O. 8. It is, therefore, prayed that the order of the CIT (A) be set aside and that of the A.O. be restored to the above extent.” 22. Ground Nos. 1 to 3 & 6 raised in the instant appeal have allowed by the Coordinate Bench by and under its order dated 11.09.2019 in assessee’s own case as argued by the Ld. A.R. appearing for the assessee. 23. Though the Ld. DR relied upon the order passed by the authorities below. The copy of the said order passed by the Coordinate Bench dated 11.09.2019 has been duly placed on record before us by the parties. Upon perusal of the said order it appears that the above issues have been decided in favour of the assessee and in the absence of any changed circumstances respectfully relying upon the same we do not find any merit in the appeal preferred by the Revenue on these issues. Thus, these grounds of appeals preferred by the Revenue are dismissed. ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 9 - 24. Ground No.4:- The issue relating to deletion of addition of Rs. 16,51,490/- made on account of unexplained investment in Swaminarayan Avenue Project being the proprietary concern of the assessee based on the seized material inventorized as Annexure A-18 has been ultimately decided in favour of the assessee deleted by the Coordinate Bench in appeal being ITA No. 1963/Ahd/2006 for A.Y. 1998-99 preferred by the Revenue which has further been confirmed by the Hon’ble High Court in Tax Appeal No. 1971 of 2009 as the argued advanced by the Ld. A.R. copy of each of the said order have duly been submitted before us. 25. The Ld. D.R. has not been able to controvert such submission made by the Ld. A.R. 26. Upon perusal of the above orders it appears that this ground has been allowed by the Coordinate Bench and subsequently affirmed by the Hon’ble Jurisdictional High Court. In the absence of changed circumstances we do not find any reason to deviate from such stand taken by the Hon’ble Court. This ground of appeal preferred by the Revenue is found to be devoid of any merit and thus, dismissed. 27. Ground No.5:- This ground has already dealt with by us in the Ground No. 8 of the ITA No. 2406/Ahd/2008 for A.Y. 2001-02 and in the absence of any changed circumstances, the same shall apply mutatis mutandis. 28. Ground Nos. 7&8 are general in nature and no need to pass any separate order. 29. Therefore, ITA No. 2598/Ahd/2008 for A.Y. 2002-03 preferred by the Revenue is dismissed. ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 10 - ITA No. 2148/Ahd/2008(A.Y. 2003-04)(Assessee’s Appeal):- 30. The grounds of appeal preferred by the assessee are as under: “1. The learned Commissioner of Income Tax (Appeals) has erred in confirming the disallowance made by the A.O. of Rs.7,404/- for the alleged excess depreciation claimed by the appellant. 2. The learned Commissioner of Income Tax (Appeals) has erred in confirming the disallowance of Rs.28,580/- made by the A.O. @ 20% of the expenses on telephone/mobile. 3. The learned Commissioner of Income Tax (Appeals) has erred in confirming the addition made by the A.O. of Rs. 28,500/- for the alleged undisclosed payments to servants. The learned CIT(A) has erred in enhancing the said addition made by the A.O. by Rs.21500/- for the alleged advances given to Neeta on the basis of seized page.41 of Annexure- A-1. 4. The learned Commissioner of Income Tax (Appeals) has erred in partly confirming the addition made by the Assessing Officer u/s.69B of the Act for the alleged unexplained investments i.e. to the extent of Rs. 51,95,208/- for construction of Swaminarayan Farm residence and to the extent of Rs. 17,04,900/- in construction of Hotel Neelkanth out of the total addition made of Rs.82,75,619/- i.e. Rs.60,06,796/- & Rs.22,68,823/- respectively. 5. The Appellant craves leave to add, alter, amend or modify any of the grounds of appeal on or before the date of hearing of appeal.” 31. It is submitted by the Ld. A.R. that the Ground Nos. 1,2 & 4 are preferred in the appeal by the assessee are covered in assessee’s own case by the Coordinate Bench in ITA No. 2146/Ahd/2008 for A.Y. 1999-2000 order dated 11.09.2019. Copy of the said order passed by the Coordinate Bench has also been submitted before us upon perusal of which such submission found to be correct. 32. The Ld. D.R. has also not been able to controvert such submission made by the Ld. A.R. 33. These grounds of appeal preferred by the assessee are, thus, allowed. 34. Ground No.3:- This ground relates to confirming the addition of Rs. 28,500/- for undisclosed payment to the servants is under challenged before us. ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 11 - 35. We have heard the rival submissions made by the respective parties, and we have also perused the relevant materials available on record. 36. During the assessment proceedings it is noticed that the assessee given certain advances on 12.03.2004 to the amount of Rs. 28,500/-. Thereafter, the recoveries of Rs. 1,000/- was made on 12.03.2004 and further recoveries were made on different dates upto 01.12.2004. The outstanding balance of Rs. 20,000/- were given to the servants. On the basis of the noting it is clear that the amount of Rs. 28,500/- was paid on 12.03.2004 i.e. the relevant assessment year. Vide the office notice under Section 142(1) dated 20.11.2006 the assessee was specifically asked to explain the source of these advances with documentary evidence. In reply the assessee vide his written submission dated 15.12.2006 has submitted that the notings on these paper does not relate to any advance given by him. The notings on this page clearly mentioned the name, amount and date of advances and the name of the servants as of the finding of the Ld. A.O. Since the assessee failed to explain the source of this advance with documentary evidence, the same has been treated as unexplained expenditure as per the provision of Section 69 C of the Act and added to the total income of the assessee. Such addition was also confirmed by the First Appellate Authority. Hence, the instant appeal before us. 37. While dealing with the matter the Ld. CIT(A) observed as follows: “13. The next ground of appeal involves the addition of Rs. 28,500/- on account of undisclosed payments to the servants. The A.O. noted from seized page 41 of Annexure A-1, the advances given to the servants prior to 12/03/2004. The assessee, in his explanation vide letter dated 15/12/2006 argued that the notings did not related to advance given by him/any unexplained expenditure, but the entries were in the nature of rough notings which too had been crossed and cancelled. The A.O. however, pointed out that the notings on this page specified the name, amount and dates of the advances given to servants, namely Neets an Naresh, and the source of this advance was not explained. Hence an addition of Rs.28,5000/- was made. ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 12 - 13.1 Before me, it was submitted that the payments were apparently related to A.Y. 2004-05. Moreover, the reading of the entries indicate an advance of Rs.6,800/- only. These were out of personal drawings. Even if it was presumed that these were advances given by the assessee, then also they were explained by the sufficient availability of cash in hand of the appellant. Reference was made to the decision reported in 40 ITD 50 (Cal), in this regard. 13.2 The contentions were carefully considered. The A.O. has listed the notings on page 27 of the order. These notings indicate that Rs.2,500/- were advanced to Neeta and Rs.28,500/- to Naresh, of which Rs.1000/- was returned on 12/3/2004. From this, it cannot be assumed that the advances were given in A.Y. 2004-05 and so the contention of the appellant in this regard is incorrect. The source of these advances has not been correlated with the cash in hand/withdrawals. As such, the addition made by the A.O. is confirmed and in fact enhanced by another Rs.2,500/- for the advances given to Neeta.” 38. Having regard to the observation made by the Ld. CIT(A) we do not find any reason to interfere with the same when the noting particularly specifies the transaction. Hence, this ground of appeal is dismissed. 39. Ground No. 5 is general in nature and no need to pass any separate order. 40. Therefore, ITA No. 2148/Ahd/2008 for A.Y. 2003-04 is preferred by the assessee is partly allowed. ITA No. 2407/Ahd/2008(A.Y. 2003-04)(Revenue’s Appeal):- 41. Grounds of appeal raised by the Revenue are as under: “1. The CIT(A) has erred in law and on facts in admitting the fresh evidence u/s. 46A without considering the A.O’s objection that none of the conditions mentioned under that Rule was satisfied. 2. The CIT(A) has erred in law and on facts in deleting the addition of Rs. 1,89,19,363/- and Rs. 69,88,121/- made on account of unexplained capital and unexplained cash credits, respectively without considering the factual position that the assessee failed to prove identity and capacity of the depositors and genuineness of the transactions. 3. The CIT(A) has erred in law and on facts in deleting the addition of Rs.68,238/- made on account of disallowance of interest for non-business use of the ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 13 - borrowed funds, without considering the fact that borrowed funds were used for non- business purpose. 4. The CIT(A) has erred in law and on facts in restricting the addition of Rs. 82,75,619/- to Rs. 69,00,107/- made on account of unexplained investment in residential house and hotel building without considering and appreciating the valuation report of District Valuation Officer. 5. The CIT(A) has erred in law and on facts in not allowing opportunity of being heard to the Valuation Officer while deleting the addition made which were based on valuation report. 6. The CIT(A) has erred in law and on facts in deleting the addition of Rs.16,51,490/- made on account of undisclosed receipts from m/s. Ghanshyam Builders being the proprietory concern of assessee based on the seized material inventoried as annexure A.18. The CIT(A) has not considered the seized material as well as the provisions of section 132(4A) of the Act. 7. On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the A.O. 8. It is, therefore, prayed that the order of the CIT(A) be set aside and that of the A.O. be restored to the above extent.” 42. It is submitted by the Ld. A.R. that the Grounds No. 1 to 5 are preferred in the appeal by the assessee are covered in assessee’s own case by the Coordinate Bench in ITA No. 2404/Ahd/2008 for A.Y. 1999-2000 order dated 11.09.2019. Copy of the said order passed by the Coordinate Bench has also been submitted before us upon perusal of which such submission found to be correct. 43. The Ld. D.R. has also not been able to controvert such submission made by the Ld. A.R. 44. Hence, in the absence of any changed circumstances we do not find any reason to deviate from the stand taken by the Coordinate Bench thus respectfully relying upon the same we dismiss this ground of appeal preferred by the Revenue. 45. Ground Nos. 5&6:- The issue relating to addition of Rs. 16,51,490/- made on account of unexplained investment from Swaminarayan Avenue ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 14 - Project being the proprietary concern of the assessee based on the seized material inventorized as Annexure A-18 has been decided in favour of the assessee by the Coordinate Bench in appeal being ITA No. 1963/Ahd/2006 for A.Y. 1998-99 preferred by the Revenue which was further been confirmed by the Hon’ble High Court in Tax Appeal No. 1971 of 2009 as the argument advanced by the Ld. A.R. has been verified from the orders duly submitted before us by the appellant and found to be true. 46. Thus, respectfully relying upon the same we dismiss this ground of appeal preferred by the Revenue. Hence, the appeal preferred by the Revenue is dismissed. 47. Ground Nos. 7&8 are general in nature and no need to pass any separate order. 48. Therefore, ITA No. 2407/Ahd/2008 for A.Y. 2003-04 is preferred by the Revenue is dismissed. IT(SS)A No. 195/Ahd/2014(A.Y. 2002-03)(Assessee’s Appeal):- 49. Since the quantum has been deleted by us the penalty proceeding initiated under Section 271(1)(c) of the Act has become infrucuous and thus, dismissed as infructuous. Hence, the appeal preferred by the assessee is dismissed as infructuous. 50. In the combined result, the appeal preferred by (i) the Revenue in ITA No. 2406/Ahd/2008 (A.Y. 2001-02) is dismissed. ITA Nos.2406&2407/Ahd/2008 & 04 others DCIT vs. Shri Umang H. Thakkar Asst.Years –2001-02to2003-04 - 15 - (ii) the assessee in ITA No. 2147/Ahd/2008 (A.Y. 2002-03) is allowed. (iii) the Revenue in ITA No. 2598/Ahd/2008 (A.Y. 2002-03) is dismissed. (iv) the assessee in ITA No. 2148/Ahd/2008 (A.Y. 2003-04) is partly allowed. (v) the Revenue in ITA No. 2407/Ahd/2008 (A.Y. 2003-04) is dismissed. (vi) the assessee in IT(SS)A No. 195/Ahd/2014 (A.Y. 2002-03) is dismissed. This Order pronounced in Open Court on 19/10/2022 Sd/- Sd/- (PRAMOD M. JAGTAP) (Ms. MADHUMITA ROY) VICE PRESIDENT JUDICIAL MEMBER Ahmedabad; Dated 19/10/2022 TANMAY, SR. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad