Shri Jai Prakash Periwal, Surat V. The ACIT., Cent.Circle-2, Surat

ITA 2693/AHD/2006

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9781 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-09-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 07-12-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Assessee Lawyers: RASESH SHAH
• Keywords: Unexplained cash credit; Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI MUKUL SHRAWAT, JUDICIAL MEMBER AND SHRI N.S.SAINI, ACCOUNTANT MEMBER DATE OF HEARING :9-9-10 DRAFTED ON: 9-9- 10 ITA NO.2693/AHD/2006 ASSESSMENT YEAR:202-03 SHRI JAI PRAKASH PERIWAL, 31/451, TEXTILE MARKET RING ROAD, SURAT. VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENT.CIRCLE-2, AAYAKAR BHAVAN, MAJURA GATE, SURAT. (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI RAS ESH SHAH. RESPONDENT BY: SHRI K. M. MAHESH, SR.D.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II, SURAT, DATED 8-11-2006 FOR ASSESSME NT YEAR 2002-03. 2. THE SOLE GROUND OF APPEAL OF THE ASSESSEE FOR TH E ASSESSMENT YEAR 2002-03 READS AS UNDER :- ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFICER IN MAKING ADDITION OF `.3,82,500/- FOR ALLE GED GIFTS RECEIVED. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE ASSESSEE CLAIMED TO HAVE RECEIVED GIFT OF `.3,82,50 0/- FROM 17 PERSONS AS DETAILED BELOW :- - -- - 2 22 2 - -- - SR. NO. NAME. AMOUNT (`) 1. KISHAN GOPAL AGARWAL 19,500/ - 2. JANKI SARAN SHARMA 19,000/ - 3. DEEPCHAND CHANDAK 19,000/ - 4. BIJOY SINGH BAID 19,500/ - 5. PANKAJ PATHAK 19,500/ - 6. SURENDRA LUNIA 19,000/ - 7. PRAAHLAD RAY VERMA 19,000/ - 8. MANOJ KUMAR MAHNOT 19,500/ - 9. BHURAMAL PALORE. 19,500/ - 10. JYOTI DEVI SAHA 19,000/ - 11. SIBULAL AGARWAL. 19,500/ - 12. RAM KISHAN SHARMA 19,000/ - 13. RAJESH SAHA 19,000/ - 14. AJAY SARAWGI 19,500/ - 15. RAM CHARAN SINGH 19,000/ - 16. GOBIND PRASAD GUPTA. 19,000/ - 17. BAGEERATH SINGH RATHORE. 75,000/ - TOTAL 3,82,500/ - 4. THE LEARNED ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS NEITHER FILED ANY CONFIRMATION OF GIFT LETTER FROM THE ALLEGED DONORS NOR THE DETAILS OF ANY GIFT IS FURNISHED. THE LEARNED ASSESSING OFFICER ADDED THE AMOUNT OF GIFT AS UNEXPLAINED CASH CREDIT UNDER SEC TION 68 OF THE ACT. 5. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) CONFIRMED THE ACTION OF THE LEARNED ASSES SING OFFICER ON THE GROUND THAT THE DOCUMENTS FILED BY T HE ASSESSEE DOES NOT SHOW THE CAPACITY OF THE DONOR AN D THE RELATIONSHIP WITH THE DONOR AND WHY THE GIFT WAS GI VEN. 6. WE FIND THAT THE IMPUGNED ORDER WAS PASSED BY TH E LEARNED ASSESSING OFFICER ON 27-02-2006 AND ON THE VERY SAME DATE THE ASSESSEE FILED ZEROX COPIES OF AFFIDA VIRT AND DECLARATION OF GIFTS BEFORE HIM. THUS, IT IS OB SERVED THAT THERE WAS NO TIME WITH THE LEARNED ASSESSING O FFICER TO VERIFY THE DECLARATION AND TO ASK THE ASSESSEE T O FILE - -- - 3 33 3 - -- - FURTHER PARTICULARS REQUIRED BY HIM TO VERIFY THE C LAIM OF THE ASSESSEE. IN THE CIRCUMSTANCES, IN OUR CONSIDER ED OPINION IT SHALL BE IN THE INTEREST OF THE JUSTICE TO RESTORE THIS ISSUE BACK TO THE FILE OF THE LEARNED ASSESSIN G OFFICER FOR ADJUDICATION AFRESH AS PER LAW AFTER VERIFICATION OF ALL THE MATERIAL AND AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COMPLY WITH THE REQUIS ITION GIVEN BY THE LEARNED ASSESSING OFFICER IMMEDIATELY AND TO FURNISH ALL THE MATERIALS WHICH HE WISHES TO FUR NISH IN SUPPORT OF HIS CLAIM BEFORE THE LEARNED ASSESSING O FFICER AS AND WHEN CALLED FOR. WE ORDER ACCORDINGLY. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSE. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 24 TH DAY OF SEPTEMBER, 2010. SD/- SD/- (MUKUL SHRAWAT ) ( N.S.SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: ON THIS 24 TH DAY OF SEPTEMBER , 2010 COMPILED AND COMPARED BY: PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS)-II,SURAT. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD - -- - 4 44 4 - -- - DATE INITIALS 1. DRAFT DICTATED ON 9-9-2010 ----------- 2. DRAFT PLACED BEFORE AUTHORITY 9-9-2010 ------ ------- 3. DRAFT PROPOSED & PLACED 9-9-2010 ----------- -JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 20-9-2010 ----------- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 24-9-2010 -------- ----- 6. KEPT FOR PRONOUNCEMENT ON 24-9-2010 --------- --- 7. FILE SENT TO THE BENCH CLERK 24 9-2010 ------ ------- 8. DATE ON WHICH FILE GOES TO THE ------------- --- ---------- 9. DATE OF DISPATCH OF ORDER ------------- ----- --------