The ITO, Ward-12(2), Ahmedabad V. Shri Jashwantbhai I.Patel, Ahmedabad

ITA 2467/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6599 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 06-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K VOHRA
• Assessee Lawyers: VIJAY RANJAN
• Keywords: Opportunity of being heard; Audit objection; Additional evidence; Question of law; Tax effect; Onus to prove; Set aside
• Section: 268A; 69A

Judgement Text

IN THE INCOME TAX APPELLATE T RIBUNAL AHMEDABAD BENCH ' B ' BEFORE S HRI BHAVNESH SAINI ,JM & SHRI A N PAHUJA ,AM ITA N O. 2467/AHD/2010 (A SSESSMENT YEAR: - 2004 - 05 ) INCOME - TAX OFFICER, WARD - 1 2(2), AHMEDABAD V/S SHRI JASHWANTBHAI I PATEL, B - 8, SHRI RAM TENAMENT, AMRAIWADI, AHMEDABAD PAN: AIRPC 0049 H [ APPELLANT ] [ RESPONDENT ] REVENUE BY : - SHRI R K VOHRA, DR ASSESSEE BY: - SHRI VIJAY RANJAN, AR O R D E R A N PAHUJA : TH IS APPEAL BY THE REVENUE FILED ON 6.8.2010 AGAINST AN ORDER DATED 11 - 05 - 2010 OF THE LD. CIT (APPEALS) - XX, AHMEDABAD FOR THE ASSESSMENT YEAR 2004 - 05, RAIS ES THE FOLLOWING GROUNDS: - 1 THE LD. CIT(A) - XX, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION OF RS.5,15,000/ - MADE BY ASSESSING OFFICER U/S 69A OF THE IT ACT, 1961, WITHOUT APPRECIATING THE FACTS OF THE CASE AND THE MATERIAL BROUGHT ON RECORD BY THE AO. 1.1 IN DOING SO, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT DURING THE COURSE OF ASSESSMENT A STATEMENT OF ASSESSEE WAS RECORDED ON OATH ON 5 TH JUN E, 2008 IN WHICH HE ADMITTED THAT RS.5,15,000/ - WAS GIVEN IN CASH AS LOAN TO SHRI P T PATEL, BUT THE SOURCE OF WHICH COULD NOT BE EXPLAINED BY THE ASSESSEE. THUS, THE ONUS TO PROVE THE GENUINENESS OF THE TRANSACTION COULD NOT BE FULFILLED BY THE ASSESSEE. THE LD. CIT(A) HAS FURTHER ERRED IN LAW & ON FACTS IN ALLOWING THE APPELLANT TO FILE ADDITIONAL EVIDENCES WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE AO, THUS VIOLATING THE PROVISIONS OF RULE 46A(3) OF THE IT RUES, 1962. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 3 IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT(A) BE SET ASIDE AND THAT OF AO BE RESTORED TO THE ABOVE EXTENT . 2 ITA NO.2467/AHD/2010 2 2. AT THE OUTSET, THE LD. AR ON BEHALF OF THE ASSESSEE POINTED OUT THAT THE TAX EFFECT IN THIS APPEAL FILED BY THE REVENUE IS RS. 1,28,500 / - I.E BELOW THE LIMIT OF RS.2 LAKHS STIPULATED BY THE CBDT IN THEIR INSTRUCTION FOR FILING THE APPEALS. THE LD. DR APPEARING BEFORE US COULD NOT POINT OUT T HAT THE CASE FALLS WITHIN ANY OF THE FOLLOWING EXCEPTIONS IN CBDT INSTRUCTION NO. 5 OF 2008 DATED 15.5.2008: (A) WHERE THE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, (B) WHERE THE BOARD'S ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR IS THE SUBJECT - MATTER OF AN ADVERSE ORDER, (C) WHERE PROSECUTION PROCEEDINGS ARE CONTEMPLATED AGAINST THE ASSESSEE, AND (D) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF THE ACT IS UNDER CHALLENGE. 2.1 WE FIND THAT HON BLE BOMBAY HIGH COURT IN THEIR DECISION IN THE CASE OF CIT VS. MADHUKAR K INAMDAR(HUF),229 CTR(BOM.)77 WHILE REFERRING TO A CIRCULAR DATED 5.6.2007 ISSUED BY THE CBDT, THE RELEVANT PROVISIONS OF SEC. 268A OF THE ACT AND THEIR OWN DECISION IN THE CASE OF CIT VS. P OLYCOTT CORPORATION,20 DTR(BOM.)16 HELD THAT INSTRUCTION NO. 5 OF 2008 DATED 15.5.2008 IS APPLICABLE EVEN TO MATTERS FILED BEFORE THAT DATE I.E. PENDING BEFORE THE COURT. THE INSTRUCTION NO. 5 OF 2008 DATED 15.5.2008 SEEMS TO LIMIT THE ISSUES IN S O FAR AS THE SAME QUESTION OF LAW OR RECURRING ISSUE EXCEPT TO THE EXTENT PROVIDED IN PARA.5. ON A PROPER READING OF PARA.5 OF THE INSTRUCTIONS IT WOULD BE CLEAR THAT A DUTY IS CAST ON THE ASSESSING OFFICER THAT EVEN IF THE DISPUTED QUESTIONS ARISE FOR MOR E THAN ONE ASSESSMENT YEAR THEN AN APPEAL SHOULD BE FILED ONLY IN RESPECT OF THOSE YEARS WHERE THE MONETARY LIMIT EXCEEDS THE LIMITS AS SPECIFIED IN PARA.3 OF THE INSTRUCTIONS, HON BLE HIGH COURT OBSERVED. 3 ITA NO.2467/AHD/2010 3 2.2 BUT HON BLE PUNJAB & HARYANA HIGH COURT IN THEIR RECENT DECISION IN THE CASE OF CIT VS. VARINDRA CONSTRUCTION CO. 198 TAXMAN 42 (PUNJ. & HAR.)(FB ) HELD THAT THAT MONETARY LIMIT LAID DOWN VIDE CIRCULAR DATED 15 - 5 - 2008 WILL APPLY ONLY TO FILING OF APPEALS. APPEALS ALREADY FILED AND PENDING PRIOR TH ERETO WILL BE GOVERNED BY MONETARY LIMIT LAID DOWN AT THE TIME OF FILING. 3. IN VIEW OF THE FOREGOING AND IN THE LIGHT OF AFORESAID INSTRUCTION DATED 15.5.2008 OF THE CBDT AND DECISION DATED 5.8.2008 OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. CONCORD PHARMACEUTICALS IN TAX APPEAL NOS. 1402 TO 1405 OF 2007 AS ALSO CONSISTENT VIEW TAKEN BY VARIOUS HIGH COURTS IN THE CASE OF CIT VS. MADHUKAR K INAMDAR(HUF),229 CTR(BOM.)77, CIT VS. POLYCOTT CORPORATION,20 DTR(BOM.)16,CIT VS. CH HAJER PACKAGING AND PLASTICS P.LTD., 300 ITR 180(BOM.),CIT VS. CAMCO COLOUR CO,254 ITR 565(BOM.), CIT VS. ZOEB Y TOPIWALA,284 ITR 379 (BOM), & CIT VS. S.ANNAMALAI,258 ITR 675(MADRAS) AND HON BLE DELHI HIGH COURT IN THEIR ORDER DATED 1.8.2007 IN ITA NO. 68 3/2007 IN THE CASE OF CIT VS. MANISH BHAMBRI, THIS APPEAL CAN NOT BE ENTERTAINED. 4. RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS OF THE HON'BLE JURISDICTIONAL HIGH COURT AND OTHER HIGH COURTS, THE APPEAL BY THE REVENUE IS DISMISSED, IN LIMINE. O RDER P RONOUNCED IN THE COURT TODAY ON 20 - 0 5 - 20 1 1 SD/ - SD/ - ( B HAVNESH SAINI ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATE D : 20 - 0 5 - 20 1 1 COPY OF THE ORDER FORWARDED TO : 1. SHRI JASHWANTBHAI I PATEL, B - 8, SHRI RAM TENAMENT, AMRAIWADI, AHMEDABAD 4 ITA NO.2467/AHD/2010 4 2. ITO, WARD - 1 2 (2), AHMEDABAD 3. CIT CONCERNED 4. CIT(A) - XX, AHMEDABAD 5. THE DR, ITAT, AHMEDABAD BENCH - B, AHMEDABAD 6. GUARD FILE BY ORDER D EPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABA D