Shri Narendrasinh Mahendrasinh Charan, Ahmedabad V. ITO, Ward-1, Himatnagar

ITA 2481/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1045 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 10-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 68

Judgement Text

, . . IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.2481/AHD/2017 ( / ASSESSMENT YEAR : 2014-15) SHRI NARENDRASINH MAHENDRASINH CHARAN G-404, PANACEA RESIDENCY OPP. SWAMI NARAYAN PARK KATHWADA ROAD, NARODA AHMEDABAD-382 330 / VS. THE INCOME TAX OFFICER WARD-1 HIMATNAGAR ./ ./ PAN/GIR NO. : AQQPC 7046 N ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI TEJ SHAH, AR / RESPONDENT BY : SHRI KAMLESH MAKWANA, SR.DR ! / DATE OF HEARING 13/03/2019 '#$% ! / DATE OF PRONOUNCEMENT 15/03/2019 / O R D E R PER SHRI RAJPAL YADAV, JUDICIAL MEMBER : THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL CHALL ENGING THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-2, AHMEDA BAD [CIT(A) IN SHORT] DATED 12/09/2017 PASSED FOR ASSESSMENT YE AR (AY) 2014-15. 2. THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS.7,57,348/- WHICH WAS ADDE D BY THE ASSESSING ITA NO.2481 /AH D/2017 SHRI NARENDRASINH MAHENDRASINH CHARAN VS. ITO ASST.YEAR 2014-15 - 2 - OFFICER WITH THE AID OF SECTION 68 OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT'). 3. WITH THE ASSISTANCE OF LD.REPRESENTATIVES, WE HA VE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES FROM THE RECORD T HAT ON SCRUTINY OF ACCOUNTS, IT REVEALED TO THE ASSESSING OFFICER THAT ASSESSEE HAS MADE DEPOSITS IN CASH IN THE BANK. ACCORDING TO THE ASS ESSING OFFICER, WHEN HE WAS CONFRONTED WITH REGARD TO SUCH DEPOSIT FOR F INDING OUT SOURCE OF SUCH DEPOSITS, THEN ASSESSEE AGREED FOR THE ADDITIO N. THE LD.CIT(A) CONCURRED WITH THE FINDINGS OF ASSESSING OFFICER O N THE GROUND THAT ONCE ASSESSEE AGREED FOR ADDITION, THEN HE HAS NO RIGHT TO CHALLENGE THAT FINDING IN AN APPEAL. THE LD. FIRST APPELLATE AUTH ORITY HAS MADE REFERENCE TO THREE FOLLOWING THREE DECISIONS: 1. RAMANLAL KAMDAR VS. CIT :: 108 ITR 73 (MAD.) 2. MAHESH B.SHAH VS. ACIT & ANR. :: 238 ITR 130(K ER.) AND 3. STERLING MACHINE TOOLS VS. CIT ::123 ITR 18 1 (ALLA.). 4. IT IS TRUE THAT ADMISSION BEING DECLARATION AGAI NST AN INTEREST IS A GOOD EVIDENCE BECAUSE THAT WILL PROHIBIT THE INVEST IGATING OFFICER TO MAKE ENQUIRY FURTHER. SUCH ADMISSION WOULD WORK AS AN ESTOPPEL AGAINST THE PERSON WHO MADE THE ADMISSION. BUT IT IS TO BE REMEMBERED THAT ADMISSION IS ALWAYS REBUTTABLE IF IT IS DEMONSTRATE D THAT SUCH ADMISSION WAS MADE UNDER SOME MISCONCEPTION OF FACTS, MISCONC EPTION OF LAW OR ITA NO.2481 /AH D/2017 SHRI NARENDRASINH MAHENDRASINH CHARAN VS. ITO ASST.YEAR 2014-15 - 3 - UNDER SOME COERCION, THEN THAT ADMISSION SHOULD NOT BE USED AGAINST THE ASSESSEE. IT IS TRUE THAT CONFESSION VOLUNTARILY COULD BE A GOOD EVIDENCE BUT ONCE IT IS DEMONSTRATED THAT SUCH ADMISSION WAS UNTRUE UNDER MISCONSTRUCTION OF FACTS OR MISCONCEPTION OF LAW, T HEN ACCORDING TO THE RULE OF PRUDENCE IT SHOULD NOT BE CONSIDERED AS A S OUND EVIDENCE AGAINST SUCH DECLARANT. IT IS ALSO A FACT THAT ASSESSEE HA S NOT PLEADED SPECIFICALLY IN THE STATEMENT OF FACTS FILED BEFORE THE LD.CIT(A ) CHALLENGING SUCH ADMISSION, SIMILARLY NOT PLEADED BEFORE THE TRIBUNA L BUT THE CONDUCT OF THE ASSESSEE BY WAY OF FILING APPEALS UPTO THE SECO ND APPELLATE AUTHORITY DO DEMONSTRATE THAT HE WAS NOT SATISFIED WITH HIS A DMISSION BEFORE THE ASSESSING OFFICER. IT IS AN IMPLIED CHALLENGE. T O OUR MIND, ASSESSEE SHOULD HAVE TAKEN THE PLEA THAT SUCH ADMISSION WAS BASED ON WRONG ASSUMPTION AT THE FIRST AVAILABLE TIME WHEN HE FILE D THE APPEAL BEFORE THE CIT(A). BUT CONSIDERING HIS STAND FOR KEEPING THE LITIGATION ALIVE UPTO THE SECOND APPELLATE AUTHORITY COUPLED WITH FACT TH AT ADMISSION UNDER SOME MISCONCEPTION RESULTING INTO THE TAX LIABILITY ON AN ADDITION OF RS.7.57 LAKHS VIS-A-VIS NEGLIGENCE OF NOT TAKING AN Y PLEA IN THE STATEMENT OF FACTS FILED BEFORE THE LD.CIT(A) IS LOOKED INTO, THEN PUNISHMENT IN THE SHAPE OF TAX LIABILITY IS DISPROPORTIONATE THAN THE NEGLIGENCE. HOWEVER, THE ASSESSEE CANNOT BE ABSOLVED FROM HIS NEGLIGENCE BECAUSE HE HAS STOPPED THE ASSESSING OFFICER FROM FURTHER ENQUIRY AND DRAGGED THE REVENUE IN UNNECESSARY LITIGATION UPTO THIS LEVEL. THEREFORE, WE DEEM IT PROPER TO ALLOW THIS APPEAL SUBJECT TO PAYMENT OF R S.5,000/- AS COST. WE ITA NO.2481 /AH D/2017 SHRI NARENDRASINH MAHENDRASINH CHARAN VS. ITO ASST.YEAR 2014-15 - 4 - SET ASIDE BOTH THE ORDERS OF THE LOWER AUTHORITIES AND RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATIO N. THE ASSESSEE SHALL DEPOSIT RS.5,000/- IN THE GOVERNMENT EXCHEQUER AND SUBMIT THE EVIDENCE BEFORE THE ASSESSING OFFICER WHEN FRESH ASSESSMENT PROCEEDINGS ARE BEING TAKEN AGAINST HIM IN PURSUANCE OF THIS ORDER. THE OBSERVATIONS MADE BY US WILL NOT IMPAIR OR INJURE THE CASE OF TH E ASSESSING OFFICER AND WILL NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANA TION OF THE ASSESSEE. HE WILL BE AT LIBERTY TO GIVE ANY EXPLANATION IN SU PPORT OF HIS CASE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 15 TH MARCH-2019 AT AHMEDABAD. SD/- SD/- ( PRADIP KUMAR KEDIA) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 15/ 03 /2019 (!.., .*../ T.C. NAIR, SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. +,- . / CONCERNED CIT 4. . ( ) / THE CIT(A)-2, AHMEDABAD 5. 123 * *,- , ! ,-% , + / DR, ITAT, AHMEDABAD 6. 356 7 / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD