Smt. Taraben Bhikhabhai Patel, Gandhinagar V. The Income Tax Officer, Ward-4, Gandhinagar

ITA 2655/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9930 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-12-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 18-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER ./ ITA NO. 2655/AHD/2015 / ASSESSMENT YEAR: 2007-08 SMT. TARABEN BHIKHABHAI PATEL, NAVO VAS, VILLAGE : KOTHA, TAL: KALOL, DIST; GANDHINGAR .. APPELLA NT PAN : BHOPP 4310 C VS INCOME TAX OFFICER, WARD -4, GANDHINAGAR .. RESPONDENT ASSESSEE(S) BY : SHRI TUSHAR HEMANI, AR REVENUE BY : SHRI DILEEP KUMAR , SR - DR / DATE OF HEARING 16/12/2015 /DATE OF PRONOUNCEMENT 01/01/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), GANDHINAGAR, AHMEDABAD DATED 16.07.2015 FOR ASSESSM ENT YEAR 2007-08, ON THE FOLLOWING GROUNDS:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS), GANDHINAGAR [FOR SHORT CIT(A)] HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF PEAK CASH BALANCE OF RS.7,06,717/- INSTEAD OF RS.2,00,256/- A FTER GIVING DIRECTION TO THE JURISDICTIONAL AO TO TAX TH E OPENING CASH BALANCE OF RS.5,06,461/- IN PRECEDING YEAR. 2. THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON F ACTS IN GIVING DIRECTION TO THE JURISDICTIONAL AO TO TAX THE OPENING CASH BALANCE OF RS.5,06,461/- IN THE PRECED ING YEAR IN TOTAL DISREGARD OF SUB-SECTION (2) OF SECTI ON 150, (SMC) ITA NO. 2655/AHD/2015 SMT. TARABEN BHIKHABHAI PATEL (A )VS. ITO AY 2007-08 2 AS THE ASSESSMENT OF AY 2006-07 COULD NOT HAVE BEEN REOPENED WHEN THE ASSESSMENT FOR AY 2007-08 WAS COMPLETED ON 17.09.2014. 3. THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE BALANCE CASH OF RS.2,00,256/- (RS.7,06,717 RS.5,06,461). I) IN TOTAL DISAGREED OF THE EVIDENCES OF AGRICULTURAL INCOME BROUGHT ON THE RECORD OF THE AO AND II) IN TOTAL DISAGREED OF THE FACT THAT TRANSACTIONS PERTAINING TO UNSECURED LOANS OF SHRI BHIKHABHAI G. PATEL AND LATE SHRI GHANSHYAMBHAI S. PATEL WERE CARRIED OUT THROUGH BANKING CHANNEL. 4. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AMEND, SUBSTITUTE, WITHDRAW ANY OF THE GROUND AS AND WHEN OCCASION MAY ARISE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER FOUND THE ASSESSEE HAD DEPOSITED CASH AGGREGATING T O RS.10,74,300/- IN HER BANK ACCOUNT. THEREFORE, THE ASSESSING OFFICER, BASED ON CASH FLOW STATEMENT FURNISHED BY THE ASSESSEE, WORKED OUT THE PEAK CASH BALANCE AT RS.7, 06,717/-. THE ASSESSING OFFICER ACCORDINGLY MADE AN ADDITION OF RS.7,06,717/- AS UNEXPLAINED CASH DEPOSIT IN BANK A CCOUNT AS THE ASSESSEE FAILED TO GIVE SATISFACTORY EXPLANATIO N ON THE SAME. IN THIS REGARD, THE AUTHORIZED REPRESENTATIVE OF TH E ASSESSEE SUBMITTED THAT THE ASSESSEE HAS THE OPENING BALANCE OF RS.5,06,469/-, BUT THE SAME WAS NOT ACCEPTED BY THE ASSESSING OFFICER INSPITE OF THE FACT THAT THE DETAILS WERE S UBMITTED BEFORE (SMC) ITA NO. 2655/AHD/2015 SMT. TARABEN BHIKHABHAI PATEL (A )VS. ITO AY 2007-08 3 THE ASSESSING OFFICER. IT WAS ALSO THE CONTENTION O F THE ASSESSEE THAT ALL THE ENTRIES OF DEPOSITS IN BANK ACCOUNT WE RE EXAMINED BY THE ASSESSING OFFICER. THE CIT(A) ALSO NOTED IN HIS ORDER THAT OUT OF TOTAL ADDITION OF RS.7,06,717/- OF PEAK CRED IT, AN AMOUNT OF RS.5,06,469/- WAS THE OPENING CASH BALANCE, WHIC H HAS BEEN FOUGHT FORWARD FROM EARLIER YEAR AND THEREFORE, CAN NOT BE A SUBJECT MATTER OF ADDITION IN THE YEAR UNDER CONSID ERATION. THEREFORE, TAKING INTO CONSIDERATION ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTI CE, WE SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFIC ER WITH A DIRECTION TO DECIDE THE ISSUE WHETHER THE AMOUNT OF RS.5,06,469/- WAS THE OPENING CASH BALANCE WHICH HA S BEEN BROUGHT FORWARD FROM EARLIER YEAR; AND THEREAFTER, DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER PROVIDIN G ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. WITH REGARD TO THE REMAINING AMOUNT OF RS.2,02,7 87/-, THE CLAIM OF THE ASSESSEE HAS BEEN THAT RS.91,000/- WAS RECEIVED IN CASH AGAINST THE CHEQUE GIVEN BY THE AS SESSEE AND RS.1,10,000/- WAS CLAIMED OUT OF AGRICULTURAL INCOM E. TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF T HE CASE, THIS ISSUE IS ALSO RESTORED BACK TO THE FILE OF THE ASSE SSING OFFICER (SMC) ITA NO. 2655/AHD/2015 SMT. TARABEN BHIKHABHAI PATEL (A )VS. ITO AY 2007-08 4 WITH A DIRECTION TO DECIDE THE SAME AS PER THE FACT S AND LAW, AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE A SSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FURNISH THE NECESSARY EVIDENCE WITH REGARD TO THE SOURCE OF CASH OF RS.91,000/- RECEIVE D AGAINST CHEQUE AND AGRICULTURAL INCOME OF RS.1,10,000/- AS WELL AS THE DOCUMENTARY EVIDENCE WITH REGARD TO THE LOAN OBTAIN ED FROM SHRI BHIKHABHAI AND SHRI GHANSHYAMBHAI BEFORE THE A SSESSING OFFICER WHO AFTER CONSIDERING THE SAME WILL DECIDE THIS ISSUE IN ACCORDANCE WITH LAW. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 1ST JANUARY, 2016 AT AHMEDABAD. SD/- ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER AHMEDABAD; DATED 01/01/2016 BIJU T., PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE. / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) !', / ITAT, AHMEDABAD