Shri Patel Bhikhabhai Kacharabhai, Ahmedabad V. The Dy.CIT.,Cent.Circle-1(2), Ahmedabad

ITA 2559/AHD/2008

• Counselvise Citation: 255920514 RSA 2008
• Duration Of Justice: 3 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 08-02-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 10-07-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: G S PATEL
• Keywords: Validity of assessment; Documents seized
• Section: 153A; 234B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD C BENCH BEFORE SHRI G.C.GUPTA, VICE-PRESIDENT (AZ) AND SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.2559/AHD/2008 ASSESSMENT YEAR:2003-04 ITA NO.3219/AHD/2008 ASSESSMENT YEAR: 2004-05 SHRI PATEL BHIKHABHAI KACHARABHAI, 33, KAMALKUNJ SOCIETY, UNDER BRIDGE, SHAHIBAUG, AHMEDABAD PAN NO.ACYPP9680K / V/S . DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE- 1(2), AHMEDABAD / APPELLANT .. / RESPONDENT /APPELLANT BY SHRI G.S. PATEL, AR /REVENUE BY SHRI VINOD TANWANI, SR-DR / DATE OF HEARING 08-02-2012 !'# / DATE OF PRONOUNCEMENT 10-02-2012 $ $ $ $ / // / ORDER PER B.P. JAIN, ACCOUNTANT MEMBER:- THESE TWO APPEALS OF THE ASSESSEE ARISE FROM THE T WO DIFFERENT ORDERS OF LD. COMMISSIONER OF INC-TAX (APPEALS)-I, AHMEDAB AD EACH DATED 30-04- 2008 FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- ITA NO.2259/AHD/2008 (FOR A.Y. 2003-04). GROUND NO.1 (I) (1) THE APPELLANT SUBMITS THAT THE LD. CIT(A) H AS ERRED IN CONFIRMING THE ASSESSMENT U/S. 153(C) R.W.S. 153A(B) OF I.T. A CT MADE BY THE A.O AS PER ORDER DATED 13-12-2006 WHICH WAS BEYOND HIS JURISDICTION, ILLEGAL AND TIME BARRED AS PER I.T. ACT IN ABSENCE OF RECOR DED SATISFACTION OF ITA NO.2559 & 3219/AHD/2008 A.YS. 2003-04 & 2004-05 SH PATEL B KACHARABHAI V.DCIT, CC-1(2) PAGE 2 THE A.O THAT THE DOCUMENTS SEIZED BELONGED TO A PER SON OTHER THAT THE PERSON REFERRED TO IN SECTION 153A AND THE DOCUMENT S SEIZED WERE HANDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. (II) THE APPELLANT ALSO CONTENDS THAT THE LD. CIT(A ) HAS ERRED IN OBSERVING THAT THE ASSESSEE HAS NO LOCUS STANDI TO OBJECT TO THE PROCEDURE OF THE ASSESSMENT AT THE APPELLATE STAGE IN LAW IN VIEW SECTION 124(3) OF I.T. ACT. GROUND NO.2 (I) THE APPELLANT SUBMITS THAT THE LD. CIT(A) HAS E RRED IN CONFIRMING THE ADDITION OF RS.10,90,771/- OUT OF RS.11,51,410/ - U/S 68 MADE BY THE A.O ON THE GROUND THAT CREDITWORTHINESS OF T HE DEPOSITORS WERE NOT PROVED BY THE APPELLANT, WITHOUT CONTROVER TING THE FACTS AND EVIDENCES AND AFFIDAVITS FILED WITH THE AO AND THE STATEMENTS RECORDED BY THE A.O. (II) THE APPELLANT FURTHER SUBMITS THAT THE LD CIT( A) HAS ERRED IN OBSERVING THAT THE APPELLANT HAS FAILED TO PROVE TH E SOURCE OF THE SOURCE OF CREDITS OF THE DEPOSITORS AND THUS FAILED TO DISCHARGE THE ONUS LYING ON THE APPELLANT. (III) THE APPELLANT CONTENDS THAT THE LD CIT(A) HAS ERRED IN OBSERVING THAT THE APPELLANT HAD FAILED TO ATTACH THE COPIES OF THE ACCOUNT FROM AMRUTA OIL WITH BANK STATEMENT ALONG WITH THE REPLY DATED 12-12-06 FILED WITH THE A.O. GROUND NO.3 (I) THE APPELLANT SUBMITS THAT THE INTEREST CHARGED U/S. 234A, 234B, AND 234-C AS PER DIRECTION OF THE AO IN THE ORDER I S ILLEGAL AND HENCE BE CANCELLED AS THERE WAS NO LIABILITY TO PAY ADVANCE TAX AS PER SECTIONS 234-A, 234-B AND 234-C OF I.T. ACT. (II) THE APPELLANT FURTHER SUBMITS THAT NO INTEREST CAN BE CHARGED U/S. 234-A, 234-B AND 234-C WHERE ASSESSMENT IS MADE U/S . 153 R.W.S. 153A OF I.T. ACT AS IT IS NOT A REGULAR ASSE SSMENT. ITA NO.3219/AHD/2008 (FOR A.Y. 2004-05). GROUND NO.1 (I) (1) THE APPELLANT SUBMITS THAT THE LD. CIT(A) H AS ERRED IN CONFIRMING THE ASSESSMENT U/S. 153(C) R.W.S. 153A(B) OF I.T. A CT MADE BY THE A.O AS PER ORDER DATED 13-12-2006 WHICH WAS BEYOND HIS JURISDICTION, ILLEGAL AND TIME BARRED AS PER I.T. ACT IN ABSENCE OF RECOR DED SATISFACTION OF THE A.O THAT THE DOCUMENTS SEIZED BELONGED TO A PER SON OTHER THAT THE PERSON REFERRED TO IN SECTION 153A AND THE DOCUMENT S SEIZED WERE HANDED OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. ITA NO.2559 & 3219/AHD/2008 A.YS. 2003-04 & 2004-05 SH PATEL B KACHARABHAI V.DCIT, CC-1(2) PAGE 3 (II) THE APPELLANT ALSO CONTENDS THAT THE LD. CIT(A ) HAS ERRED IN OBSERVING THAT THE ASSESSEE HAS NO LOCUS STANDI TO OBJECT TO THE PROCEDURE OF THE ASSESSMENT AT THE APPELLATE STAGE IN LAW IN VIEW. GROUND NO.2 (I) THE APPELLANT SUBMITS THAT THE LD. CIT(A) HAS E RRED IN CONFIRMING THE ADDITION OF RS.709000/- U/S 68 ON THE GROUND TH AT THE CONDITIONS OF SECTION 68 ARE NOT COMPLIED WITH BY T HE ASSESSEE. (II) THE APPELLANT SUBMITS THAT THE LD. CIT(A) HAS ERRED IN OBSERVING THAT THE APPELLANT HAD FAILED TO FILE THE DOCUMENTS WITH THE AO AS CLAIMED BY THE ASSESSEE. GROUND NO.3 (I) THE APPELLANT SUBMITS THAT THE INTEREST CHARGED U/S. 234A, 234B AND 234C AS PER DIRECTION OF THE AO IN THE ORDER IS ILLEGAL AND HENCE BE CANCELLED AS THERE WAS NO LIABILITY TO PAY ADVANCE TAX AS PER SECTIONS 234A, 234B AND 234C OF I.T. ACT. (II) THE APPELLANT FURTHER SUBMITS THAT NO INTEREST CAN BE CHARGED U/S.234A, 234B AND 234C WHERE ASSESSMENT IS MADE U/ S 153(C) R.W.S.153A(B) OF I.T. ACT AS IT IS NOT A REGULAR AS SESSMENT. 2. BOTH THE APPEALS HAVE SIMILAR ISSUES IN RESPECT OF SAME ASSESSEE AND THEREFORE BOTH THE APPEALS ARE DECIDED BY THIS CONS OLIDATED ORDER. 3. FIRST OF ALL, WE TAKE UP THE APPEAL IN ITA NO.25 59/AHD/2008 FOR A.Y. 2003-04. AS REGARDS TO GROUND NO.1, THE LEARNED COU NSEL FOR THE ASSESSEE HAD AGITATED THE ASSESSMENT MADE U/S.153C IS BEYOND THE JURISDICTION AND ILLEGAL. 4. LD.SR-DR ON THE OTHER HAND RAISED THE PRELIMINAR Y OBJECTION THAT THE SAID ILLEGAL GROUND WAS NOT TAKEN BEFORE THE LD. CI T(A). HE INVITED OUR ATTENTION TO THE ORDER OF LD. CIT(A) AT PAGE NO.1 A ND 2, WHERE THE ASSESSEE HAD RAISED BEFORE THE LD. CIT(A) FOUR GROUNDS OF AP PEAL AND NONE OF THE GROUND IS A LEGAL GROUND WHICH CHALLENGES THE VALID ITY OF ASSESSMENT U/S. 153C OF THE ACT. ITA NO.2559 & 3219/AHD/2008 A.YS. 2003-04 & 2004-05 SH PATEL B KACHARABHAI V.DCIT, CC-1(2) PAGE 4 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. ON PERUSAL OF THE GROUNDS RAISED BY THE ASSESSEE BE FORE THE LD. CIT(A) WHICH ARE APPEARING AT PAGES NO.1 AND 2 OF THE ORDER OF L D. CIT(A), THE ASSESSEE HAS NOT RAISED ANY LEGAL GROUND BEFORE THE LD. CIT( A) WITH REGARD TO VALIDITY OF ASSESSMENT U/S.153C OF THE ACT. MOREOVER, THE ASSES SEE HAS NOT RAISED ANY ADDITIONAL GROUND FOR THE ADMISSION BEFORE THE BENC H WITH REGARD TO THE VALIDITY OF THE ASSESSMENT U/S. 153C OF THE ACT. TH EREFORE, IN THE CIRCUMSTANCES AND FACTS OF THE CASE, GROUND NO.1 RA ISED BY THE ASSESSEE IS DISMISSED. 6. AS REGARDS GROUND NO.2, THE BRIEF FACTS ARE THAT A SEARCH OPERATION U/S. 132(2) WAS CONDUCTED ON VIKAS A SHAH ON 09-02-2005. ON VERIFICATION OF THE VARIOUS DOCUMENTS FOUND, SEIZED AND INVENTORISED AS ITEM NOS. A-1 TO A-271. IT WAS NOTICED THAT PAGE NOS. 68, 69, 82, 86, 123, 124, 131, 137, 139, 167, 174, 179, 195, 196, 202, 203, 212, 222 AND 224 OF A -25 RECORDED CERTAIN AMOUNTS SHOWN TO HAVE BEEN RECEIVED/PAID IN THE NAM E OF BHIKHABHAI. FURTHER, IN ANSWER TO QUESTION NO.33 OF HIS STATEME NT RECORDED U/S. 131(1A) OF THE ACT, SHRI VIKAS A SHAH EXPLAINED THAT THOSE RECORDINGS WERE DAILY CASH REPORTS OF MANSI BUILDERS AND VIKAS A SHAH WHICH WE RE DULY VERIFIED BY HIM. SINCE SHRI VIKAS A SHAH AS ONE OF THE PARTY TO THE TRANSACTIONS AND CONSIDERING THE DECISION OF DELHI ITAT IN THE CASE OF ROGER ENTERPRISES (P) LTD. V. DCIT (2004) 88 ITD 95 (DEL), AS PER THE ASSESSING OFFIC ER IT HAD EVIDENTIARY VALUE. THEREFORE, PROCEEDINGS U/S. 153C R.W.S. 253A WERE INITIATED AGAINST THE ASSESSEE. IN COMPLIANCE TO THE NOTICE, THE ASSESSEE FILED THE RETURN FOR THE YEAR UNDER CONSIDERATION DECLARING T OTAL INCOME OF RS.60,640/- ON 29-08-2005. AFTER ISSUE OF NOTICES U/S. 143(2) A ND 142(1), THE ASSESSMENT WAS ULTIMATELY COMPLETED ON 13-12-2006 AT A TOTAL I NCOME OF RS.12,12,050/-. THE ONLY ADDITION MADE IN THE ASSESSMENT ORDER AMOU NTING TO RS.11,51,410/- U/S. 68 OF THE ACT. THE AO ASKED THE ASSESSEE TO EX PLAIN HIS CAPITAL BALANCE OF RS.19,34,303/- AS ALSO TWO LOANS OF RS.1,49,607/ - AND RS.75,000/- FROM KACHARABHAI P PATEL AND NARANBHAI S PATEL RESPECTIV ELY, WHICH APPEARED IN ITA NO.2559 & 3219/AHD/2008 A.YS. 2003-04 & 2004-05 SH PATEL B KACHARABHAI V.DCIT, CC-1(2) PAGE 5 THE BALANCE-SHEET OF THE ASSESSEE. IN REPLY, THE AS SESSEE HAS FURNISHED THE DETAILS OF THE CAPITAL ACCOUNT AS UNDER:- 1. FROM AGRICULTURAL LAND AT PARBATPURA RS.7,05,00 0/- 2. OLD HOUSE SOLD RS. 30,000/- 3. AGRICULTURAL LAND SOLD RS.2,72,500/- 4. JIVANLAL GOVINDLAL RS.1,00,000/- 5. VISHNUBHAI PARSHOTTAMBHAI RS.1,00,000/- 6. RAMANBHAI MADHAVLAL RS.1,65,000/- 7. RAMABHAI D PATEL RS.2,00,000/- 8. JAYANTIBHAI A PATEL RS.1,00,000/- 9. AMBAALAL M PATEL RS.2,00,000/- 10. PROFIT RS. 60,000/- 11. BANK BALANCE RS. 1,164/- RS.19,34,303 OUT OF THIS, THE ASSESSING OFFICER ACCEPTED THE FIR ST THREE CREDITORS ON THE BASIS OF DOCUMENTS FURNISHED BY THE ASSESSEE. WITH REGARD TO THE REMAINING THOUGH AFFIDAVITS OF THE SAME WERE FURNISHED, THE A O SUMMONED THE CREDITORS FOR PROVING THEIR IDENTITY, CREDITWORTHINESS AND GE NUINENESS OF THE TRANSACTIONS AND RECORDED STATEMENTS OF CREDITORS AT SR. NO. 4-8 . HOWEVER, THE AO WAS NOT SATISFIED ABOUT THE CREDITWORTHINESS OF THE DEPOSIT ORS AND THE GENUINENESS OF THE TRANSACTION. IT WAS BECAUSE THE AO OBSERVED THA T ALL THE ALLEGED CREDITORS WERE PARTNERS, NOT ASSESSED TO TAX AND ALL TRANSACT IONS MADE IN CASH. MOST OF THEM WERE ALSO FOUND NOT MAINTAINING BANK ACCOUNTS AND THE ONE WHO MAINTAINED, HAD ALSO ADVANCED THE MONEY IN CASH. AC CORDING TO THE AO NO CLINCHING DOCUMENTARY EVIDENCE WAS FURNISHED TO PRO VE THE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS. AS REGARDS THE AMOUNT ALLEGED TO HAVE BEEN RECEIVED FROM LT. AMBALAL M PATEL IN CASH, THE AO TOOK THE LOAN AMOUNT AT A FIGURE OF RS.2,61,803/- AS AGAINST THE ASSESSE E GIVING THIS FIGURE AT RS.2 LAKH. THE ASSESSEE HAS EXPLAINED THAT THIS AMOUNT O F RS.2,61,803/- INCLUDES PROFIT OF RS.60,639/- AND BANK BALANCE AT RS.1,164/ - WHICH SANDS DISCUSSED AT PAGE-4 OF THE ASSESSMENT ORDER. THE ASSESSEE FURTHE R EXPLAINED THAT HE TOOK A LOAN OF RS. 2 LAKH FROM HIM AND ALSO RETURNED IT ON 25-03-2004. HOWEVER, SINCE HE DIED ON 18-01-2005 HE COULD NOT BE PRODUCE D. SINCE NO DOCUMENTARY EVIDENCE TO PROVE THE CREDITWORTHINESS AND GENUINENESS OF THE ITA NO.2559 & 3219/AHD/2008 A.YS. 2003-04 & 2004-05 SH PATEL B KACHARABHAI V.DCIT, CC-1(2) PAGE 6 TRANSACTION WAS FILED, AO DID NOT ACCEPT THE EXPLAN ATION OF THE ASSESSEE. WITH REGARD TO THE TWO LOANS OF RS.1,49,607/- AND RS75,0 00/- THERE IS TYPOGRAPHICAL ERROR AT PAGE-6 OF THE ASSESSMENT WRITING IT AS 7,5 00/- FROM KACHARABHAI P PATEL AND NARANBHAI S PATEL RESPECTIVELY. THEY ARE SAID TO HAVE BEEN PAID THROUGH CHEQUE. THE ASSESSEE CLAIMED TO HAVE EVEN F URNISHED A/C FROM AMRUTA OIL WITH BANK STATEMENT FILE IN CASE OF BOTH BUT THE ASSESSMENT ORDER AT PAGE-6 RECORDED THAT NO SUCH DOCUMENTS WERE FURN ISHED WITH THE REPLY. HOWEVER, BEFORE FINALLY DECIDING THE ISSUE, THE AO GAVE A FINAL OPPORTUNITY TO THE ASSESSEE TO PROVE HIS CASE. HE INTIMATED THAT T HE ASSESSEE HAS NOT DISCHARGED HIS ONUS IN SO FAR AS (A) NOT PROVING TH E CREDITWORTHINESS AND GENUINENESS OF THE CASH CREDITS RECEIVED IN CASH AS DISCUSSED IN PARA-4.2 AND 4.3 OF THE ASSESSMENT ORDER AND (B) NOT PROVING THE CREDITWORTHINESS OF THE CHEQUE DEPOSITS AS DISCUSSED IN PARA-4.4 OF ASSESSM ENT ORDER. THE ASSESSEE FURNISHED THE REPLY BUT WITHOUT ANY FURTHER EVIDENC E THEREAFTER THE AO CONCLUDED THAT ASSESSEE DID NOT PROVE SATISFACTORIL Y THE CREDITWORTHINESS OF THE ALLEGED DEPOSITORS AND GENUINENESS OF THE CREDI TS ALLEGED TO HAVE BEEN PAID THROUGH CASH OR CHEQUE AND HE WENT AHEAD TO MA KE THE ADDITION TOTALING TO RS.11,51,410/- U/S. 68 OF THE ACT. 7. THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSES SING OFFICER EXCEPT FOR AN AMOUNT OF RS.60,639/- FOR THE REASON MENTIONED I N HIS ORDER. 8. IT WAS ARGUED BY THE LD. AR APPEARING FOR THE AS SESSEE THAT AMOUNTS RECEIVED BY THE ASSESSEE FROM VARIOUS PERSONS IN CA SH WERE AS UNDER:- I) SHRI J.G.PATEL RS.1,00,000/- II) SHRI V.P. PATEL RS.1,00,000/- III) SHRI R.M.PATEL RS.1,65,000/- IV) SHRI R.D.PATEL RS.2,00,000/- V) SHRI J.A. PATEL RS.1,00,000/- TOTAL RS.6,65,000/- THE ASSESSEE SUBMITTED THE AFFIDAVITS OF THE SAID C REDITORS AND HAS PROVED THEIR IDENTITY AND NATURE OF THE TRANSACTIONS AS RE QUIRED U/S. 68 OF THE ACT. THE ITA NO.2559 & 3219/AHD/2008 A.YS. 2003-04 & 2004-05 SH PATEL B KACHARABHAI V.DCIT, CC-1(2) PAGE 7 ASSESSEE SUBMITTED BEFORE THE ASSESSING OFFICER THE STATEMENTS OF THE CREDITORS AND EXPLAINED THE SOURCE OF THEIR INCOME FROM WHERE THE DEPOSITS WERE MADE WITH THE ASSESSEE. AS SUCH, THE FINDINGS OF THE AO AND THE LD. CIT(A) THAT THE ASSESSEE FAILED TO PROVE THE CREDIT WORTHINESS OF THE DEPOSITS IS ILLEGAL AND BAD IN LAW. THEREFORE, THE ADDITION U/S .68 OF RS.6.65 LAKH IS ILLEGAL AND HENCE BE CANCELLED. IN RESPECT OF RS.2 LAKH CRE DITED IN CASH IN THE NAME OF SHRI A.M. PATEL, THE COPY OF SALE DEED OF AGRICU LTURAL LAND AND DEATH CERTIFICATE OF SHRI A.M. PATEL WERE FILED ON RECORD AS PER LETTER DATED 31-10- 2006 AND ACCORDINGLY THE CAPACITY OF THE CREDITOR A ND OTHER CONDITIONS OF SECTION 68 WERE PROVED. AS SUCH, THE ADDITION OF RS .2 LAKH U/S.68 BEING ILLEGAL AND BE CANCELLED. WITH REGARD TO THE ADDITION OF RS .2,24,607/- U/S. 68 CONFIRMED BY THE LD. CIT(A) IS ILLEGAL AND HENCE BE CANCELLED AS RS.1,49,607/- AND RS. 75,000/- SINCE THE SAME WAS RECEIVED BY CHE QUE FROM SHRI K.P. PATEL AND SHRI N.S. PATEL RESPECTIVELY. AS PER LETTER DAT ED 12-12-2006 PLACED ON RECORD THE COPIES OF DOCUMENTS OF THE SAID CREDITOR S FROM AMRUTA OIL MILL, WITH BANK STATEMENTS WERE ALSO FILED. THE SAID AMOUNTS W ERE WITHDRAWN THROUGH CHEQUS BY THE CREDITORS FROM AMRUTA OIL MILL FROM T HEIR ACCOUNTS AND WERE DEPOSITED WITH THE ASSESSEE THROUGH CHEQUES. THE AO AND LD. CIT(A) ARE NOT JUSTIFIED IN STATING THAT THOSE DOCUMENTS WERE NOT ATTACHED WITH THE LETTER DATED 12-12-2006 FILED WITH THE AO. IN VIEW OF THE FACTS, THE ADDITION OF RS.2,24,607/- U/S. 68 BEING ILLEGAL BE CANCELLED. 9. LD. SR-DR ON THE OTHER HAND RELIED UPON THE ORDE RS OF BOTH THE AUTHORITIES BELOW. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT ASSESSEE HAD F ILED THE AFFIDAVITS OF THE CREDITORS TO PROVE THE IDENTITY, GENUINENESS AND CR EDITWORTHINESS OF THE TRANSACTIONS AS REQUIRED U/S.68 OF THE ACT. MOREOVE R, THE CREDITORS IN THEIR STATEMENTS TO THE EXTENT OF RS.6.65 LAKH HAD CONFIR MED TO HAVE GIVEN THE SOURCES OF THE DEPOSITS MADE WITH THE ASSESSEE. WIT H RESPECT TO RS.2 LAKH ITA NO.2559 & 3219/AHD/2008 A.YS. 2003-04 & 2004-05 SH PATEL B KACHARABHAI V.DCIT, CC-1(2) PAGE 8 RECEIVED FROM M. A.M. PATEL, THE ASSESSEE HAD SUBMI TTED THE COPY OF SALE DEED OF AGRICULTURAL LAND AND DEATH CERTIFICATE OF MR. A.M. PATEL WAS PLACED ON RECORD. THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.2 ,24,607/- BY CHEQUE FROM MR. K.P.PATEL AND N.S.PATEL AS SUBMITTED BY TH E ASSESSEE HEREINABOVE. THE AFFIDAVITS AND THE STATEMENTS CANNOT BE REJECTE D WITHOUT DISPROVING THE SAME BY BOTH THE AUTHORITIES BELOW. THE ASSESSEE HA VING DISCHARGED THE ONUS BY SUBMITTING THE AFFIDAVITS WHICH HAVE NOT BE EN PROVED TO BE FALSE AND ALSO THE CREDITORS HAVE BEEN PRODUCED WHOSE STATEME NTS HAVE NOT BEEN PROVED TO BE FALSE, THEN NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. THE ASSESSEE HAVING SUBMITTED THE VARIOUS DOCUMENTS LIKE SALE DEEDS, DETAILS OF BANK FROM WHICH CHEQUES HAVE BEEN ISSUED, WHICH IN THE ABSENCE OF ANY ADVERSE MATERIAL OR FINDINGS AGAINST THE ASSESSEE CANNOT BE A SUBJECT-MATTER OF ADDITION. THEREFORE, IN THE CIRCU MSTANCES AND FACTS OF THE CASE, THE ASSESSEE HAVING DISCHARGED THE ONUS TO PR OVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION S, NO ADDITION CAN BE MADE AND ASSESSING OFFICER IS DIRECTED TO DELETE TH E SAME. THE ORDER OF LD. CIT(A) IS REVERSED ACCORDINGLY. THUS, GROUND NO.2 O F THE ASSESSEE IS ALLOWED. 11. AS REGARDS GROUND NO.3 FOR CHARGING OF INTEREST U/S. 234-A/B/C, THE SAME IS MANDATORY AND CONSEQUENTIAL IN NATURE. 12. IN THE RESULT, ASSESSEES APPEAL IN ITA NO.2559 /AHD/2008 IS PARTLY ALLOWED. NOW WE TAKE UP THE APPEAL IN ITA NO.3219/AHD/2008 F OR A.Y. 2004-05. 13. AS REGARDS TO GROUND NO.1, THE FACTS ARE IDENTI CAL IN THE PRESENT APPEAL AS IN ASSESSEES APPEAL IN ITA NO.2559/AHD/2008 HEREINABOVE, THEREFORE FOLLOWING THE SAME GROUND NO.1 OF THE ASSESSEE IS D ISMISSED. ITA NO.2559 & 3219/AHD/2008 A.YS. 2003-04 & 2004-05 SH PATEL B KACHARABHAI V.DCIT, CC-1(2) PAGE 9 14. AS REGARDS GROUND NO.2, THE BRIEF FACTS ARE THA T ASSESSEE RECEIVED DEPOSITS OF RS.7.09 LAKH FROM THREE PERSONS AS UNDE R:- 1) SHRI BHAGABHAI VASTABHI RS.5,34,000/- 2) SHRI SANJAY BHIKHABHAI RS. 75,000/- 3) SHRI K MITTAL KUMAR RS.1,00,000/- THE ASSESSEE SUBMITTED THE EXPLANATION VIDE LETTERS DATED 31-10-2006 AND 12-12-2006. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND SAME WERE ADDED TO U/S 68 OF THE A CT TO THE INCOME OF THE ASSESSEE. 15. THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSE SSING OFFICER. 16. IT WAS ARGUED BY THE LD.AR THAT ALL THE AMOUNTS WERE RECEIVED THROUGH ACCOUNT PAYEE CHEQUES AND THE ASSESSEE HAD SUBMITTE D THE COPIES OF ACCOUNTS ALONG WITH BANK STATEMENT OF THE CREDITORS BEFORE AO VIDE LETTERS DATED 31-10-2006 AND 12-12-20006. THE ASSESSEE HAD DISCHARGED THE ONUS OF PROVING THE IDENTIFY, CREDITWORTHINESS AND GENUI NENESS OF THE CREDITORS. 17. LD. SR-DR ON THE OTHER HAND RELIED UPON THE ORD ERS OF BOTH THE AUTHORITIES BELOW. 18. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT ASSESSEE HAD F ILED THE COPIES OF ACCOUNT ALONG WITH BANK STATEMENT OF ALL THE CREDITORS BEFO RE THE ASSESSING OFFICER VIDE LETTERS DATED 31-10-2006 AND 12-12-2006. THE A O DISPROVED THE SAME WITHOUT BRINGING ANY CONTRARY MATERIAL ON RECORD. T HE ASSESSEE HAVING DISCHARGED HIS ONUS FOR PROVING THE IDENTITY, CREDI TWORTHINESS AND GENUINENESS OF TRANSACTION. THEREFORE IN THE ABSENCE OF ANY CON TRARY MATERIALS, NO ADDITION CAN BE MADE. THE ADDITION SO MADE ARE DIRECTED TO B E DELETED AND THE ORDER OF LD. CIT(A) IS REVERSED. THUS, GROUND NO.2 OF TH E ASSESSEE IS ALLOWED. ITA NO.2559 & 3219/AHD/2008 A.YS. 2003-04 & 2004-05 SH PATEL B KACHARABHAI V.DCIT, CC-1(2) PAGE 10 19. AS REGARDS GROUND NO.3 FOR CHARGING OF INTEREST U/S. 234-A/B/C, THE SAME IS MANDATORY AND CONSEQUENTIAL IN NATURE. 20. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE IN ITA NO.2559/AHD/2008 AND ITA NO.3219/AHD/2008 ARE PARTLY ALLOWED. % $ !'# &'( 10 / 02 /201 2 ! , - . / THIS ORDER PRONOUNCED IN OPEN COURT ON 10/02/ 201 2. SD/- SD/- ( G.C.GUPTA ) ( B.P. JAIN ) (VICE PRESIDENT) (ACCOUNTANT MEMBER) &'(- 10/02/2012 1 / DKP* $ $ $ $ 223 223 223 223 43' 43' 43' 43' / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ''27 8 / CONCERNED CIT 4. 8- / CIT (A) 5. 3;. 2227, 27#, 1 / DR, ITAT, AHMEDABAD 6. .>? @% / GUARD FILE. BY ORDER/ $ , /TRUE COPY/ A/1 ' 27#, 1 /